Moments Store - We Are Passionate in Giving You Moments of Joy

MARKETPLACE MERCHANT AGREEMENT

THIS AGREEMENT is made on the day stated in Section 1 of the Schedule

BETWEEN

INNITY SDN. BHD. [Company No.: 199901025800 (500700-X)], a company incorporated in Malaysia, and having its principal place of business located at C501 & C502, Block C, Kelana Square, 17, Jalan SS7/26, Kelana Jaya, 47301 Petaling Jaya, Selangor Darul Ehsan, Malaysia (hereinafter referred to as “INNITY”) of the one part;

AND

The party with the particulars set out in Section 4 of the Schedule (hereinafter referred to as “Merchant”) of the other part.

INNITY and Merchant may each be referred to as a “Party” and collectively referred to as the “Parties”.

WHEREAS;

INNITY owns and operates an online e-commerce platform (E-commerce Store) accessible through web and mobile web on https://moments.passionation.co (hereinafter referred to as “Moments”). Subject to the presents here, INNITY may allow Merchants to use E-commerce Store, on “as-is basis” to list and display their product and other data on moments. Moments is a technology platform which facilitates transactions among various users of the Merchant Products.
Merchant is an Authorized Seller/Reseller/Manufacturer of Products sold “under the brand as captured in the seller registration and is desirous of listing, displaying, and selling their Products facilitated through E-commerce Store to such Buyers who visit on moments

The Parties agree in consideration of the mutual promises contained in this Agreement.

Definitions and Interpretation
1. In this Agreement:-
  Agreement means this agreement and schedules attached hereto, as amended from time to time in accordance with the provisions contained herein.
  
  Applicable Law shall mean all applicable laws, statutes, ordinances, rules, regulations, guidelines, policies, and other pronouncements including amendments thereof having the force of law by court, tribunal, Governmental Authority, ministry, department, commission, or any judicial forum.
  
  Business Day means a working day that is not Saturday, Sunday or a public holiday in Kuala Lumpur and Selangor Darul Ehsan, Malaysia
  
  Buyer shall mean any individual, group of individuals, firm, company, or any other entity placing an order to purchase the Merchant Products on Moments for their own use.
  
  Commencement Date means the date as stated in Section 1 of the Schedule or such other date as may be mutually agreed by the Parties.
  
  Confidential Information means all information of any kind, whether in machine readable or visually readable form, oral or otherwise and whether or not labelled as “Confidential”, including but not limited to user data, personal data, technical information, data, know-how and information relating to either party's business, terms of this agreement, source code, marketing strategies, financial condition and operations and submitted or howsoever made available by or on behalf of one party to the other, whether before or after the Commencement Date, for the purposes relating to or in connection with this Agreement.
  
  Intellectual Property Right (IPR) means patents, copyright, moral right, trademark, service marks, logos, commercial names, logo identity, logo guidelines, domain names, patents, designs, business processes, semiconductor topography rights or industrial property, know how, software, programs, process, source code, concept, idea, systems, process flow, inventions, formulae, confidential or secret processes, trade secrets, any other protected rights or assets and any other intellectual property right arising under any Applicable Laws and all ancillary and related right, including all rights of registration and renewal and causes for action for violation, misappropriation or infringement of any of the foregoing.
  
  Listing Price means the total amount payable or paid for a Merchant Product.
  
  Merchant Materials means all Merchant trademarks, tag lines, punch line, Merchant Content, Product Information, information, data, materials, and other items provided or made available by Merchant to INNITY or its Affiliates or Service Providers.
  
  Merchant Transaction means any sale of a Merchant Product on Moments excluding Shipping Charges and any Taxes.
  
  Need To Know means the necessity to have access to Classified Information in the scope of given official duties and/or for the performance of a specific task and/or is required by law.
  
  Order Information means, with respect to any Merchant Product sold on Moments, the following information: the name of the customer, customer email addresses, the name of the recipient, the shipping address, the quantity to be shipped, and any special comments included by INNITY in its discretion.
  
  Party means either INNITY or the Merchant, taken in context.
  
  Parties means both INNITY and the Merchant which include their successors in title.
  
  Sales Revenue means total amount collected by INNITY including all Shipping Charges and any Taxes separately stated and charged.
  
  Taxes means all applicable taxes, including but not limited to sales tax, service tax, value-added tax or tax of similar nature imposed by the relevant tax authorities in Malaysia under the law.
  
  Term means the period referred to in Section 2 of the Schedule.
2. In this Agreement, headings and titles are only for convenience and do not affect interpretation and, unless the context requires otherwise:-
  1. words in the singular include the plural and the other way around;
  2. words of one gender include any gender;
  3. a reference to a person includes an individual, a company, partnership, joint venture, association, corporation or other body corporate and a Governmental Agency;
  4. a reference to a party to this Agreement includes that party's executors, administrators, successors and permitted assigns;
  5. a promise or agreement by two or more persons binds each person individually and all of them jointly;
  6. a reference to a clause, party, schedule, annexure or exhibit is a reference to a clause and schedule of, and a party, annexure and exhibit to, this Agreement; and a reference to this Agreement includes any schedule, annexure or exhibit;
  7. a reference to a thing (including, but not limited to, a right) includes any part of that thing but nothing in this Clause 1.2(g) implies that performance of part of an obligation constitutes performance of the obligation;
  8. a reference to a right includes a remedy, power, authority, discretion or benefit;
  9. a reference to legislation includes any amendment to that legislation, any consolidation or replacement of it, and any subordinate legislation made under it and any rules, regulations and guidelines issued under that legislation or subsidiary legislation;
  10. a reference to a document, including this Agreement, includes any amendment or supplement to, or replacement or novation of, that document or this Agreement, as the case may be;
  11. if a word or phrase is defined, another grammatical form of that word or phrase has a corresponding meaning;
  12. examples are descriptive only and not exhaustive;
  13. a provision must not be construed against a Party merely because that Party was responsible for preparing this Agreement or that provision; and
  14. a reference to a body, other than a party to this Agreement (including an association, authority, corporation, body corporate or institution), whether statutory or not:
    1. which ceases to exist;
    2. which is reconstituted, renamed or replaced; or
    3. whose powers or functions are transferred to another body;
    is a reference to the body which replaces it or which serves substantially the same purposes or has the same powers or functions.
3. Where the day on or by which something must be done is not a Business Day, that thing must be done on or by the next Business Day.
Duration of Agreement
The Agreement shall be in effect from the Commencement Date, and shall continue for the Term or until this Agreement is terminated by either Party in accordance with the provisions of this Agreement. This Agreement shall automatically be renewed on identical terms to this Agreement for another one (1) year and every succeeding one (1) year period (“Extended Term(s)”) unless terminated by either Party giving to the other not less than thirty (30) days’ written notice prior to the expiry of the Extended Term(s).
Merchant Product Listings
1. During the term of this Agreement, INNITY will allow Merchant to list the Products for sale on Moments at the Listing Price determined by Merchant or the Person authorized by Merchant.
2. Merchant undertakes that the Merchant Materials, Merchant Products (including their packaging) (i) shall not contain any Objectionable Content or any other Content that is not expressly permitted by INNITY; and (ii) are in compliance with the agreed catalogue and content standards. Merchant takes full responsibility for the contents of the packages that it hands over to the Merchant’s Logistics Service Providers (LSP) or delivers to Buyers under this Agreement and agrees that INNITY shall not be responsible or liable in any manner whatsoever for such contents.
Prohibited and Restricted Products List
1. List of prohibited and restricted items:
  1. Drugs, prescription-only medicines, pharmacy-only medicines, drug-like substances and associated paraphernalia;
  2. Animal and wildlife products (including, without limitation, wild animals);
  3. Adult materials include but not limited to the list below:
    1. Sex toys;
    2. Sex dolls;
    3. Used underwear;
    4. Pornography and child pornography;
    5. Adult video game;
    6. Adult services;
  4. Weapons such as pepper spray, replicas, and stun guns, etc.;
  5. Lottery tickets;
  6. Credit and debit cards;
  7. Currency or credits including, without limitation, digital currency or credits, and stored value cards;
  8. Tobacco or tobacco-related products, including without limitation electric cigarettes/e-juices that contain nicotine;
  9. Obscene, seditious and treasonous materials;
  10. Stolen products;
  11. Mislabelled products;
  12. Firearms, munitions, replica and other firearms;
  13. Collection, artifact and precious metals;
  14. Alcohol (a valid license must be submitted to, and approved by, INNITY);
  15. Embargoed goods;
  16. Human parts, human remains and protected flora and fauna;
  17. Gambling, slot machine and other related equipment, online gaming related.
2. INNITY will update prohibited and restricted items policy from time to time where necessary. Please visit https://moments.passionation.co regularly for updates.
Order, Sale and Fulfilment
1. INNITY shall retrieve and send over the Order Information to Merchant through Electronic Mailer (E-mail) and Merchant agrees not to cancel any Merchant Transaction except as may be permitted by INNITY or applicable Merchant Terms.
2. Merchant agrees and undertakes to comply with the following service levels for order fulfilment of this Agreement and acknowledges that its failure to perform or fulfil any of the service levels or other provisions of this Agreement shall have a bearing on its ranking on Moments and entitle INNITY without prejudice to any other consequences and rights as may be available to INNITY either in this Agreement or the Applicable Law.
3. Merchant will hand over the packed Merchant Product, packed as per Packing Specifications, to the Merchant’s LSPs and Merchant shall update INNITY through Electronic Mailer (E-mail) with relevant shipping information, immediately upon handing over of Merchant Products to and INNITY may make such information available on Moments.
4. Merchant shall ensure that it will include within each Merchant Product shipment package, the authenticity certificate/warranty card, user manual and invoice(s). Merchant shall not include any of its marketing, promotional materials or any other solicitations or any communications to Buyers without prior written approval by INNITY.
5. Merchant will not substitute any item or product for an order with another item or product. In the event the order is partly delivered or there are missing accessories or freebies, Merchant agrees to provide the same item to the Buyer immediately at Merchant’s own cost.
6. Cancellation Orders: INNITY, without any liability to compensate Merchant, shall have the right to cancel any order if Merchant has failed to handover the packed Merchant Product to Merchant’s LSP within agreed timelines or INNITY understands that Merchant Product is not shipped for any reason within the applicable shipping period indicated in the Order Information.
7. Quality of Merchant Products: Merchant agrees not to sell a Merchant Product unless the Merchant Product is fully fit for its intended use, manufactured, and produced and is of a style, appearance, quality, and consistency that at least meets the standards as shown on the Product Information page. INNITY reserves the right (but is not obligated) to perform quality checks before shipment of the Merchant Product and approve or disapprove the Merchant Product pursuant to such quality checks. INNITY will have no liability to compensate Merchant for any Merchant Products disapproved by INNITY following the aforesaid quality checks. Merchant will not ship Merchant Products which are not in consumable condition, damaged, defective, Excluded Products or of disapproved quality standards.
8. With respect to return of Merchant Products to the Merchant’s store or other specified and agreed locations title to and risk of loss of or damage to the Merchant Products will pass to Merchant when delivered by Buyer to Merchant at the Merchant’s store or other specified and agreed locations. INNITY does not hold and will not hold title to, or be deemed to be the owner of, any Merchant Products at any time under the terms of this Agreement.
9. Merchant is not bound to clause 5.1 to clause 5.8 if the sales fulfilment is managed by INNITY.
Exchanges, Returns and Refunds
1. Merchant will provide INNITY with the Merchant Return and Refund Policy and such Merchant Return and Refund Policy shall apply to all Merchant Products. Merchant will be responsible for accepting and processing returns of Merchant Products in accordance with this Agreement and the Merchant Return and Refund Policy (displayed as part of Product information).
2. INNITY will make efforts to ensure that all Merchant Products that are returned by a Buyer are dispatched to Merchant within the period agreed between INNITY and Merchant.
3. INNITY will determine and calculate the amount of all refunds (including any Taxes to be refunded) for Merchant Products returned in accordance with this Agreement and will route all such refunds on behalf of Merchant to the Buyer and accordingly debit from the payment to Merchant.
4. Buyer Disputes: If Merchant delays in resolving Buyer’s complaints or disputes relating to the Merchant Products within the period of 10 business days (including failure to perform quality checks of the returned Merchant Products), then on the expiry of such period INNITY may at its sole discretion decide and remit the refund to Buyer upon receipt of request from Buyer and recover the same from Merchant. Merchant agrees that it will accept INNITY’s decision to remit the refund to Buyer without any contest or dispute. While arriving at any decision under this clause INNITY would use reasonable efforts and opportunity of being heard will be provided to Merchant and the Buyer but INNITY does not take any responsibility to ascertain the truth of such a claim by Merchant or the Buyer.
5. Loss in Transit: In case of loss of Merchant Product after delivery to Merchant’s LSP but before the delivery to Buyer, INNITY does not take any responsibility for the loss of the Merchant Product costs.
6. Merchant is not bound to clause 6.1 to clause 6.5 if the Exchange and Return is managed by INNITY.
Invoicing by Merchant
1. Merchant shall create invoices and shipping labels as shown on Order Information. Merchant will invoice the Listing Price of the Merchant Product sold to Buyer as offered to Buyer. Taxes will be charged as per Applicable Law on the Listing Price. If Merchant at its sole discretion decides to charge Shipping Charges from the Buyer, Merchant shall print the invoice in this regard and send the same with Merchant Product to the Buyer.
2. If INNITY offers any additional discounts over the Listing Price, INNITY shall obtain prior approval from Merchant and the discounts will be borne by INNITY.
3. The invoice will be placed and sent with the Merchant Product shipment package prior to handing over Merchant Products to the Merchant’s LSP or Buyer in connection with each Buyer order.
Dispute on Merchant Products
Merchant agrees and acknowledges that it will be solely responsible for any sale of Merchant Product to Buyer that is not in accordance with the order of Buyer or INNITY Policies. Merchant further warrants to resolve all Buyer service issues in connection with such sale or delivery of Merchant Products.
Equality with Merchant Sales Channels
Merchant will ensure there is equality between the offerings (e.g. listing price and other terms including but not limited to the discounts, minimum price, warranties, return and refund policies, after sales service etc. regarding the sale of the same Merchant Product) by Merchant on other ecommerce platforms and offerings on Moments.
Collection of Payment by Payment Gateway and Payment to Merchant
1. INNITY will collect the payment for Merchant Products through iPay88 payment gateways aggregator (“Payment Gateway”) or on its own. Merchant authorises the Payment Gateway for processing payments, refunds and adjustments for Merchant Transactions on Merchant’s behalf and remitting entire Sales Revenue to INNITY’s bank account (collectively, the "Transaction Processing Service").
2. Merchant agrees that as a security measure or in compliance with Applicable Law or any reason thereof, INNITY or the Payment Gateway shall have the right (but not obligation) to impose limits or restrictions on transaction at Moments. Neither INNITY nor Payment Gateway will be liable to Merchant in case of any transaction failure to meet regulatory requirements or due to any technology failure or limitations of technology being used.
3. If INNITY or the Payment Gateway reasonably conclude based on the available information that Merchant’s actions or performance may result in Buyer disputes, charge backs or other claims, then INNITY may, in its sole discretion, may delay initiating remittances related to such dispute and withhold corresponding payments that are otherwise due to until the completion of investigation regarding any Merchant actions or performance without any further liability.
4. INNITY will remit to Merchant the Sales Revenue collected by INNITY in respect of Merchant Products delivered to Buyers, every Fifteen days (or on the next Business Day if the scheduled payment date falls on a non-Business Day) for the successful Merchant Transaction held during the preceding Fifteen days after deducting INNITY Fees, Payment Gateway fee, other amounts and reversals because of return of Merchant Product, refund to the Buyer and any other amounts due to INNITY. All payments to Merchant will be subject to the deduction of tax at source under Applicable Law. For avoidance of doubt it is clarified that INNITY will not be obligated to pay to Merchant any amount pertaining to Merchant Products that have been initiated for return by Buyer.
5. INNITY reserves the right to withhold the Sales Revenue or any portion of the Sales Revenue in a reserve account pertaining to the disputes with Buyers or third parties arising out of any default or defect in services of Merchant or the Merchant Product.
Charges and Costs
INNITY Fees: With respect to each Merchant Transaction, Merchant will pay INNITY the fees at the applicable percentage, more specifically covered under the Annexure A. Prior to each Payment Date, INNITY will raise an invoice towards the INNITY Fees as per the prevailing rates) due to INNITY for the relevant Settlement Period.
Proprietary Rights and Licenses
1. Reservation of Rights
  1. Both Parties agree that the brands/logos, trademarks, etc., belonging to each Party are the exclusive property of the respective Party and cannot in any circumstances be used, or copied, or altered in any manner which is identical/ similar the brands/ logos/ trademarks of the other Party without being specifically authorized in writing by that other Party.
  2. Merchant acknowledges that, INNITY possesses and reserves all right, title and interest in and to the IPR in the trademarks and any other intellectual property, know-how developed or provided by INNITY or its Service Providers during performance of the services under this Agreement (collectively, “INNITY IPR”) and except as may expressly be set forth in this Agreement, no title to or ownership of any of INNITY IPR is transferred or licensed to Merchant or any other Person pursuant to this Agreement. INNITY IPR will own the internet presence developed over time on the world-wide web of the seller including seller domain by offering the online services of the seller.
2. Content and Trademark License
  1. Merchant will ensure that during the term of this Agreement, INNITY and INNITY's Affiliates have a royalty-free, non-exclusive right and license to use, reproduce, perform, display on Moments and on INNITY Connected Properties (e.g. Facebook account of INNITY or Instagram handle of INNITY etc.), and in advertising and other marketing communications promoting Moments that consist of text/ logo/ other derivative work.
  2. Notwithstanding the foregoing, nothing in this Agreement will be construed as restricting INNITY from using any Merchant trademarks in a manner permitted under Applicable Law without a license from Merchant such as fair use or referential use, or valid license from a third party. All goodwill arising out of use of Merchant trademarks by INNITY will inure solely to the benefit of Merchant.
Usage of INNITY IPR
1. Any INNITY IPR expressly provided or made available to Merchant, or its Affiliates may be used by Merchant solely for the express purposes described in this Agreement during the Term of this Agreement. For the avoidance of doubt, Merchant will not:
  1. Copy, reproduce, modify, adapt, translate, reverse engineer, make alterations, decompile, disassemble, or make derivative works or improvements based on any INNITY IPR or use, rent, loan, sublicense, lease, distribute, or attempt to grant other rights to INNITY IPR; or
  2. Use any INNITY IPR to act as a consultant, service bureau or application service provider, or to permit remote access to any INNITY IPR; or
  3. Except as may be expressly authorized by this Agreement, Merchant will not and will cause its Affiliates not to, without the prior written approval of INNITY, engage in, conduct, authorize, assist or encourage any marketing or promotional activities (whether by Merchant, its Affiliates or any Third Party or whether online (including through links, private or public forums or URL redirection) or offline related to or referencing Moments or any INNITY IPR or any trademarks of INNITY or any of its Affiliates.
Promotion and Marketing
INNITY may undertake merchandising, promotion and digital marketing of INNITY Moments and Merchant’s Online Store including Merchant Products as solely determined by INNITY including via the INNITY Connected Properties or any other functions, features, advertising, or programs on or in connection with Moments. Merchant acknowledges that INNITY will have complete rights of approval and ownership over the creative content, themes, sales literature, copy and layout of all advertising and promotional materials and programs, trade materials, business cards, invoices, stationery and other printed matter relating to such merchandising, promotion and marketing activities. Depending on mutual agreement between the Parties, INNITY reserves the right to charge a fee from Merchant for its promotion and marketing of the E-commerce Store and Merchant Products.
Taxes
1. Merchant will, at its own expense, obtain all permits and licenses required to operate its business in accordance with Applicable Law, and will pay and discharge all applicable taxes levies and assessments which may be due for selling or offering of the Merchant Products for sale on Moments. It is the Merchant's responsibility to determine and remit any kind of taxes including SST and other levies by Governmental Authority (“Taxes”). INNITY will remit the Taxes collected from Buyer directly to Merchant and Merchant will be solely responsible for remitting the Tax to the applicable Governmental Authority. If a Governmental Authority requires INNITY to pay any of Merchant's Taxes, Merchant will promptly reimburse INNITY for the amounts, fines and penalties paid and agrees to defend, indemnify and hold INNITY harmless from and against all liabilities incurred or suffered by or assessed against INNITY because of Merchant’s failure to remit or pay timely such Taxes to the appropriate Governmental Authority.
2. Merchant acknowledges and agrees that INNITY and its Service Providers do not provide Tax advice, and that Merchant is solely responsible for determining the applicability and accuracy of any Tax Data.
Representations and Warranties
1. Merchant represents and warrants to INNITY that:
  1. It is duly organised and validly existing under the Applicable Laws and is duly registered and authorised to do the business and has all requisite government and regulatory approvals, corporate powers and authority to own and operate its business and to enter into this Agreement and while entering into this Agreement shall not violate or conflict with any agreement, contract, arrangement and understanding or any instrument, to which it is a party or by which it is bound.
  2. There is no action, suit, proceeding, claim, arbitration, inquiry or investigation pending against Merchant, its activities, properties or assets or for its winding up which may materially affect its financial condition. It is not a party to or subject to the provisions of any order, writ, injunction, judgment or decree of any court or Governmental Authority or instrumentality which affects the business or interests of Merchant.
  3. Merchant Products used in, offered and sold on Moments legally procured or manufactured and is not disabled in any manner and is allowed to sell Merchant Product on Moments.
  4. Merchant Product listings, Merchant Material and all information provided to INNITY is and will be accurate, complete, current are not misleading or deceptive in any manner.
  5. The publication, reproduction, display, modification, distribution or transmission of Merchant Material or Merchant Product listing does and will not (a) infringe, misuse, dilute, misappropriate, or otherwise violate any Intellectual Property Rights of Third Parties, (b) constitute an invasion of a party's rights of privacy or publicity; or (c) reflect unfavourably on INNITY, Moments, INNITY Affiliates or other sellers on Moments.
  6. All Merchant Products sold pursuant to this Agreement are and will not be subject to any health, safety, defect or product quality recall or prohibitive order of any Governmental Authority or otherwise not disallowed to be sold through online sales.
  7. All information or data uploaded or transmitted by Merchant on Moments, or any INNITY Connected Properties, application, or system, or to a Buyer or user shall be free from any virus, worm, defect, Trojan horse, software bomb or other feature designed to damage or degrade in any manner the performance of Moments or any INNITY Connected Properties, application, or system.
  8. Merchant will not use Moments and Storefront to violate the security of, or gain unauthorised access to, any computer or computer network or other device or system (including unauthorised attempts to discover passwords or security encryption codes to use any robot, spider, site search or retrieval application, or other device to retrieve or index any portion of Moments, collect any information about other users (including usernames or email addresses); or to reformat or frame any portion of Moments), or use Moments and Storefront or any other Merchant Material, intentionally or unintentionally, to violate any Applicable Law.
  9. Merchant shall conform with and adhere to the terms and conditions of INNITY Policies.
  10. Merchant Products shall be sold only in their original packages. Merchant shall not, either directly or indirectly, relabel, repackage, mark, or assist any other entity to relabel, repackage, or mark the Merchant Products except as may be specifically approved by INNITY or provided in this Agreement.
  11. Merchant shall not disparage Moments, INNITY, its Affiliates, their respective shareholders, officers, employees and representatives or any of their respective products or services.
Moments Platform
Merchant acknowledges that INNITY’s role under this Agreement is limited to managing the Moments for the display of the Merchant Products and other incidental services to facilitate online transactions between Merchant and the Buyers and hence INNITY is merely an intermediary under the terms of Electronic Commerce Act, 2006 and rules thereunder. The transaction for sale of any of the Products is a bipartite contract between Merchant and the Buyer and INNITY neither will have any obligations or liabilities in respect of such contract nor shall INNITY hold any rights, title or interest in the Merchant Products. INNITY will also not be responsible for any unsatisfactory performance or any actions or inactions or omissions by the Merchant including delays, defects or wrong information.
Indemnification
Each Party shall indemnify and hold the other Party, its officers, agents, directors, stockholders and employees free and harmless from and against any and all damages, liabilities, costs and expenses, including attorney’s fees, resulting from its breach of the warranties, representations and obligations, contained in this Agreement.
Confidentiality
1. The Parties agree and undertake that during the Term of this Agreement and thereafter, the Parties shall keep this Agreement and all data confidential, and information disclosed and divulged by one Party to another Party or which comes to its knowledge whether in print, digitalised, any other electronic form, oral or software format, whether or not marked “Confidential” (“Confidential Information”) strictly confidential. Confidential Information will include without limitation Buyer lists, new product information, price information, launch date, projections, plans, forecasts, financial, business and sourcing information, analytics, designs, specifications, software, techniques, technology, passwords, and other non-public information obtained in the course of this Agreement.
2. All Confidential Information relating to Moments and services including but limited to the password to access the Moments or Merchant Account and information derived therefrom, shall be obtained and retained by Merchant in confidence and trust and except as expressly provided by this Agreement, shall not be used, duplicated, copied or disclosed by Merchant in any form for the use or benefit of any Person, nor reproduced, transcribed, imitated or simulated in whole or in part. Merchant may disclose relevant aspects of the Confidential Information to its employees, representatives or agents on a need-to-know basis who have been advised of and are bound by the confidentiality provisions of this Agreement. Merchant shall notify INNITY immediately if Merchant learns of any misappropriation or misuse of Confidential Information by anyone in any manner not expressly authorized under this Agreement and shall co-operate with any efforts by INNITY to prevent any misappropriation or misuse of Confidential Information.
Termination
1. This Agreement may be terminated by INNITY, with immediate effect, if:
  1. Merchant is in breach of any of its obligations, representations or warranties, or any other material terms as contained in this Agreement and/or any of the INNITY Policies; and
  2. A petition for relief under any bankruptcy or insolvency is filed by or against Merchant or Merchant makes an assignment for the benefit of the creditors, or a receiver or an administrative receiver or administrator is appointed.
  3. Notwithstanding anything contained under this Agreement, any Party may terminate this Agreement for convenience upon 1 month written notice to other Party. It is agreed that such provisions and obligations which, by their very nature, survive the termination of this Agreement, shall continue to be binding on the Parties.
  4. On termination of this Agreement:
    1. INNITY will, with immediate effect, block Merchant’s access to the Moments.
    2. Merchant will be entitled to only the undisputed Sales Revenue which have become due to Merchant on account of any purchase of the Products, made through the Moments, prior to the date of termination of this Agreement. INNITY shall be entitled to adjust any amount due from Merchant to INNITY until the date of termination, from amount payable to INNITY on termination.
    3. Without prejudice to the foregoing, the termination of this Agreement pursuant to any of the provisions contained herein above shall not limit or otherwise affect any other remedy (including a claim for damages), which either Party may have, arising out of the event which gave rise to the right of termination.
Governing Law and Dispute Resolution
This Agreement shall be governed in all aspects by the laws of Malaysia and all parties hereby submit to the exclusive jurisdiction of the Malaysia courts in Kuala Lumpur and all courts having jurisdiction in appeal therefrom.
Data Privacy
1. The Parties shall post on their respective media properties its privacy notices, and adhere to their privacy notices, which abide by all applicable laws, rules and regulations.
2. To the extent that any data about buyer are collected, used, transmitted, or processed by or on behalf of the Parties, including persistent identifiers (such as IP address or device identifiers) or precise geo-location data, the Parties shall not attempt to identify the individuals to whom the information pertains. If for some reason an buyer can be personally identified whether by the INNITY or Merchant, the Parties agree to comply with all data protection provisions stated in the relevant data protection legislations applicable to the Party respectively.
3. In relation to all personal information obtained pursuant to this Agreement, the Parties agree that user data that is of personally identifiable nature is collected under the Personal Data Protection Act 2010 (“PDPA”) as set out in Annexure X.
Force Majeure
1. A Party will not be liable to the other for any delay or default in the performance of its obligations as a result of any cause beyond its reasonable control, including but not limited to causes due to an act of God, fire, flood, earthquake, windstorm or other natural disaster; act of any sovereign war, invasion, trespass (including hacking), act of foreign enemies hostilities (whether war be declared or not) civil war, rebellion revolution, insurrection, military or usurped power or confiscation, nationalisation, requisition, destruction or damage to property by or under the order of any government or public or local authority or imposition of government sanction embargo or similar action; act of government or governmental instrumentality, law, judgement, order, decree; embargo blockade labour dispute including but not limited to strike lockout or boycott; interruption or failure of utility service including but not limited to electric power, gas, water, telephone or internet service (collectively, “Force Majeure Event”).
2. If such delay or default continues for at least sixty (60) consecutive days, either Party will be entitled to forthwith terminate this Agreement by notice in writing to the other in which event, no Party shall have any claim against the other during any such period.
Right to Amend
We may change this contract from time to time in order to comply with Applicable Law. In case of any amendments, Supplemental Agreement is to be entered between INNITY and Merchant through written consent by both parties.
General
1. Save as otherwise provided in this Agreement, each Party shall bear all expenses, which it incurs in connection with the performance of its respective obligations hereunder.
2. Either Party shall not assign, novate or transfer all and any part of its rights or obligations herein without the prior written consent of the other Party. The Parties shall execute the necessary documents as may reasonably be requested by the other Party to perfect any such permitted assignment, novation or transfer.
3. Notwithstanding anything herein contained, neither Party shall have any liability to the other Party in any manner whatsoever for any loss of profit, goodwill, business opportunity, revenue, anticipated savings or wasted expenditure or for any indirect, incidental, special, punitive, exemplary, consequential or economic loss (including any action brought by third parties) arising out of the performance, non-performance, breach or subject matter of this Agreement, even if such loss is reasonably foreseeable or the first mentioned Party has been informed by the other Party of the possibility of incurring the same, unless such loss is due to the willful default or gross negligence of the first mentioned Party.
4. The provisions of Clause 25.3 shall be read and construed and shall have effect subject to any limitations imposed by any applicable law, and for the avoidance of doubt, will not serve to limit or exclude:
  1. liability for death or personal injury resulting from negligence; or
  2. liability for fraud or any other liability which it is not lawfully permitted to exclude or limit.
5. Each Party warrants, represents and undertakes that (a) it has and will comply with the requirements of all applicable anti-bribery laws, and (b) it has not and will not give, promise or offer to give any money, favour, incentive or anything of value (directly or indirectly) to any party to improperly influence the performance of his/her duties, or to secure or retain any business or advantage. Should any Party in breach of this representation, the other Party shall have the right to forthwith terminate this Agreement without liable for any loss or damages suffered by the defaulting Party and without prejudice to any other rights, powers and remedies of the innocent Party under this Agreement and the relevant laws.
6. The rights, benefits, liabilities and obligations of the Parties hereto created by this Agreement shall continue to be valid and binding notwithstanding any change in the name or change by amalgamation, reconstruction, consolidation or otherwise which may be made in the constitution of any Party and it is expressly agreed that not a change of any sort or nature whatsoever in relation to or affecting any Party herein shall in any way affect the rights, benefits, liability and obligations created by this Agreement.
7. Any notice or other communication including but not limited to any request, demand, consent or approval (“Notice”) to or by any Party to this Agreement shall be:-
  1. legible in written English;
  2. served by delivering it by hand to the physical address or sending it via electronic mail to the email address as set out in Section 3 and Section 4 of the Schedule or as otherwise notified from time to time in accordance with the provisions of this clause; and
  3. deemed to have been duly received by any Party to this Agreement on the second Business Day when such Notice is delivered by hand or at the time of transmission.
8. No modification, variation, amendments or alteration to any of the terms and conditions of this Agreement shall be valid unless the same is made in writing and signed by all the Parties hereto. In the event that any provision of this Agreement shall be void or unenforceable by reason of any provision of applicable law, it shall be deleted and the remaining provisions hereof shall continue in full force and effect and, if necessary, be so amended as shall be necessary to give effect to the spirit of this Agreement so far as possible.
9. This Agreement shall be governed in all aspects by the laws of Malaysia, without regards to its conflicts of laws principles. Any dispute, controversy, difference or claim arising out of or relating to this contract, including the existence, validity, interpretation, performance, breach or termination thereof or any dispute regarding non-contractual obligations arising out of or relating to it shall be referred to and finally resolved by arbitration administered by the Asian International Arbitration Centre (“AIAC”) in accordance with the AIAC Arbitration Rules when the Notice of Arbitration is submitted. The law of this arbitration clause shall be Malaysia law. The seat of arbitration shall be Kuala Lumpur, Malaysia. The number of arbitrators shall be one and the arbitration proceedings shall be conducted in English.
10. Time whenever mentioned shall be of the essence in this Agreement.
11. The failure of either Party to enforce any term or condition in this Agreement or any forbearance or indulgence granted by either Party shall not be construed or deemed to be a waiver or in any way prejudice the rights of the Parties under this Agreement.
12. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original and all of which taken together will be deemed to constitute one and the same document. The Parties may sign this Agreement using electronic signature.

Annexure X

Personal Data Protection

In respect of Personal Data, each Party agrees and warrants that it shall:-

observe and comply with the provisions of the PDPA as amended from time to time;
comply with any requests made or directions given by the other Party in connection with the requirements of the PDPA;
not do or permit anything to be done which might jeopardise or contravene the terms of any registration, notification or authorisation effected, issued or given under the PDPA which each Party or any of its subsidiaries are bound to comply with;
not process any of the Personal Data in fulfilling its obligations under this Agreement unless it is acting on the express instructions of the other Party, and such Personal Data shall be treated as Confidential Information for the purpose of this Agreement;
use the Personal Data which has been obtained by or made available through or made available to the other Party only for the purposes of fulfilling its obligations under this Agreement and comply with the instructions of the other Party from time to time in connection with use of such Personal Data, and not retain the Personal Data for any longer than is necessary for the purposes;
not disclose the Personal Data which has been obtained by or made available through or made available to it without the written authority of the other Party and immediately notify the other Party as soon as it becomes aware that a disclosure of the Personal Data may be required by law, and where there is a transfer of the Personal Data, maintain a list of disclosure to third parties as required under the PDPA;
not transfer the Personal Data which has been obtained by or made available through or made available to it within Malaysia or outside Malaysia, or allow persons outside Malaysia to have access to it, without the prior written approval of the other Party;
take practical steps to ensure the security of the Personal Data which has been obtained by or made available through or made available to the other Party, and consider all suggestions by the other Party to ensure that the level of protection provided for such Personal Data is in accordance with this Agreement and make the changes suggested (at the first Party’s cost) unless the first Party can prove to the reasonable satisfaction of the other Party that they are not necessary or desirable to ensure ongoing compliance with this clause;
ensure that it has in place a system or procedure wherein the Personal Data will be kept and stored in accordance with industry best practices which include appropriate administrative, physical and technical safeguards to secure data from unauthorised access, disclosure and use to ensure compliance with the rules and provisions contained in the PDPA (as amended from time to time); and
immediately notify the other Party when it becomes aware of a breach in the provisions of the PDPA.

Except that the confidential information is:

collected via independently developed platform/tools by the receiving party without use of or reference to the disclosing party's Confidential Information;
disclosed by the receiving party pursuant to the disclosing party's prior written approval;
on a "need-to-know" basis to third parties that have signed a non-disclosure agreement containing provisions substantially as protective as the terms of this agreement and such party has obtained the written consent through that disclosure from the party that provided the Confidential Information.

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