Version date: 24 May 2023
MARKATO HK LIMITED
TERMS OF SERVICE FOR BRANDS
TERMS OF SERVICE FOR BRANDS ("Brand Terms")
- Welcome to Markato!
- Thank you for your interest in becoming a brand on the Markato wholesale online marketplace, accessible through our websites: www.markato.com (or at any address that may be substituted for this one) (collectively, the “Site”) and, where available, our mobile applications (collectively, the “Application”), and accessing and using the functionalities and services provided via the Site and/or the Application (together, the “Services”).
- Throughout these Brand Terms, the terms “Markato”, "our", “us”, and/or “we” shall refer to Markato HK Limited (a company incorporated in Hong Kong (company number 3150358) with its registered office at Unit 1603, 16th Floor, The L. Plaza, 367 - 375 Queen’s Road Central, Sheung Wan, Hong Kong, and its Affiliates). The terms "Brand", "user", “you” and/or “your” shall refer to you as a user of the Services as a Brand.
- The purpose of the Site, Application and Services is to bring eligible Brands into contact with eligible Retailers, for the purposes of enabling Brands to sell, and Retailers to purchase, a selection of curated products via the Services.
- The sale of products via the Services shall take place as between the relevant Brand and Retailer (with such Brands and Retailers deciding along, at their discretion, on whether or not to enter into an order for such products).
- Please note that Markato: (i) is neither a seller, nor a reseller, nor the owner of the products that are distributed via the Services; (ii) never enters into possession of the products that are put up for sale; (iii) does not hold the products in stock; and (iv) does not hold the products as a custodian or trustee of any kind. Markato cannot be held liable for any actions or omissions potentially committed by a Brand or by a Retailer in respect of their use of the Site, Application or Services.
TERMS OF ACCEPTANCE
- These Brand Terms, along with:
- any Brand Addendum that we have agreed with you (if any); and
- We recommend that you carefully review the Terms of Service prior to submitting an application for a Brand Account (defined below). If you have any questions about any of the Terms of Service please contact [email protected].
- By registering to become a user of the Services as a Brand, or using the Services:
- you acknowledge and agree that you will be bound by and comply with the Terms of Service. Do not proceed with registering for an Account, or using the Services, if you do not understand and accept the Terms of Service in their entirety.
- We reserve the right to amend any part of the Terms of Services, at any time, by posting the revised version of the Terms of Services on the Site, with an updated revision date. The changes will become effective, and shall be deemed accepted by you, the first time you use the Services after the initial posting of the revised Terms of Services, and shall apply on a going-forward basis with respect to transactions initiated after the posting date. You acknowledge that it is your responsibility to check the Terms of Services periodically for changes.
- If you do not agree with any amendments to the Terms of Services, your sole and exclusive remedy is to terminate your use of the Services and close your Brand Account. You agree that neither we nor any other Indemnified Party shall be liable to you or any third party for any Losses suffered as a result of any amendment of the Terms of Service.
- Capitalized terms used herein are defined in Paragraph 26, below.
Account Registration – Brand Account
- To sell products through the Services as a Brand, you must submit an application to become a brand and be approved by Markato for an account (“Brand Account”).
- When registering your Brand Account, you must provide complete, accurate, up-to-date and not misleading information for all required elements on the registration page (including your full legal name and any necessary documentation evidencing product compliance and safety and appropriate licenses and registrations applicable to your Products (where applicable)).
- In addition, you must provide us, on an ongoing basis, with such additional information that we may reasonably request in relation to your application for, or operation or maintenance of, a Brand Account and/or use the Services, including any information that we require in order to comply with our obligations under applicable law (e.g. for the purposes of identity verification and the detection of money laundering, terrorist financing, fraud, or any other financial crime).
- You represent and warrant that any and all Brand Information provided to us is complete, accurate, up-to-date and not misleading in any respect. If any such information changes, it is your obligation to update such information as soon as possible and provide such updates to us.
- You acknowledge that your access to the Services may be altered as a result of the Brand Information that you provide to us.
- If any (or we suspect that any) of the Brand Information is not complete, accurate, or up-to-date, or is misleading, in any respect, or you fail to provide updates to any Brand Information that you have provided to us to ensure that it is complete, accurate, up-to-date and not misleading in any respect on a timely basis, we may suspend your ability to use the Services or close your Brand Account at our discretion.
- You acknowledge that we may use your Brand Information for one or more of the following purposes, and authorise us to do so:
exercising our rights or performing our obligations under the Terms of Service;
enabling us to procure services from Intermediary Service Providers that are reasonably necessary for the performance of the Services (and complying with out obligations to disclose certain Brand Information to such Intermediary Service Providers);
complying with the requirements of any Intermediary Service Provider, credit reference and fraud prevention or financial crime agencies, Regulatory Authorities or applicable laws, including:
- making enquiries, directly or through third parties, that we consider necessary to verify your identity or the information that you have provided; and
- monitoring, identifying, preventing, investigating or reporting suspicious or illegal activity (including in relation to fraud or money laundering), and analysing and managing the risk of the same, including by way of conducting authorisations and screening checks;
assessing financial, information security, sector, credit and insurance risks;
assessing any breach of or enforcing the Terms of Service;
recovering any debt that arises in relation to a party's insolvency;
maintaining, testing and developing customer relationships, services and systems; and
analysing your personal information and/or usage of the Services (in anonymised and aggregated format) for the purposes of developing and improving the Services.
- We reserve the right to maintain your Brand Account registration information after you close your Brand Account for business and regulatory compliance purposes, subject to applicable laws.
- Markato will use good faith efforts to review your application to become a Brand as soon as possible. You acknowledge that Markato is only able to accept a limited number of Brands at any given time, and that Markato is not obligated to accept you as a Brand. You hereby release Markato from any liability regarding the acceptance process.
- We reserve the right to suspend or close your Brand Account (or remove or block your sale of one or more Products) in our sole and absolute discretion, at any time, including where we reasonably suspect that you have breached any of the Terms of Services, without notice and without liability.
- You may close your Brand Account at any time using the functionality made available via the Services.
- In order to be eligible to open a Brand Account or use the Services, you must meet (and you represent and warrant that you do meet), the following eligibility criteria:
- If you are an individual, you must be at least 18 years of age, have the capacity to accept the Brand Terms, and not have been previously suspended or removed from access to the Services or any other service or product offered by Markato or any of its Affiliates.
- If you are registering to use the Services on behalf of a legal entity then:
you must be duly authorised by such legal entity to act on its behalf for the purpose of entering into the Brand Terms;
the legal entity must be duly organised and validly existing under the laws of the jurisdiction of its organisation; and
the legal entity must not have been (and each of its Affiliates must not have been) previously suspended or removed from access to the Services or any other service or product offered by Markato or any of its Affiliates.
- You will not be using the Services for any illegal activity.
- If we determine that you do not fulfil any of the above criteria then we may suspend your ability to use the Services or close your Brand Account at our discretion, without notice and without liability.
Your Brand Account: security of user information
- You may access your Brand Account (and the Services) directly via the Site or the Application, or by such other mode of access that Markato may prescribe from time to time, using the Brand Account names, User IDs, passwords, and other security features ("User Credentials and Security Passwords") made available to you by Markato for the purposes of enabling you to access your Brand Account (and the Services).
- You are responsible for maintaining the confidentiality and security of any and all User Credentials and Security Passwords, which includes the enabling of all relevant security features. You are responsible for keeping your email address up to date in your Brand Account profile.
- You are only permitted to access your Brand Account using your own User Credentials and Security Passwords. You must ensure that your Brand Account is not used by any other third party, and must not share your User Credentials and Security Passwords with any third party. You are solely responsible for all activity on your Brand Account.
- You agree to notify Markato immediately if you become aware of any breach of security, loss, theft or unauthorised use of your User Credentials and Security Passwords, or unauthorised use of the Services via your Brand Account, or any other breach of security regarding the Services. Markato will not be liable for any loss or damage arising from your failure to protect your Brand Account or your User information.
- Markato reserves the right to suspend your ability to use the Services or close your Brand Account if we suspect that the person logged into your Brand Account is not you, or become aware of or suspect that there has been any breach of security, loss, theft or unauthorised use of your User Credentials and Security Passwords.
- In order to access your Brand Account (and the Services) you must have the necessary equipment (such as a computer or smartphone) and access to the Internet. You are solely responsible for your own hardware used to access the Services and are solely liable for the integrity and proper storage of any data associated with the Services that is stored on your own hardware. You are responsible for taking appropriate action to protect your hardware and data from viruses and malicious software, and any inappropriate material. Except as provided by applicable law, you are solely responsible for backing up and maintaining duplicate copies of any information you store or transfer through our Services.
- We reserve the right in our sole and absolute discretion to change, suspend, or discontinue any aspect of the Services at any time and in any jurisdiction, including hours of operation or availability of any feature, without notice and without liability. We may advise you of any such changes, suspensions or discontinuations via your Brand Account or the other contact details that you have provided to us, but shall have no obligation to do so.
- If you do not agree with any change, suspension, or discontinuance of any aspect of the Services, then your sole and exclusive remedy is to terminate your use of the Services and close your Brand Account. You agree that neither we nor any other Indemnified Party shall be liable to you or any third party for any Losses suffered as a result of any such changes, suspensions, discontinuations or decisions.
- Upon the creation of your Brand Page, Retailers will be able to submit orders for your Products. You may use the Services to accept, modify or refuse any order that you receive from a Retailer, in accordance with and subject to these Brand Terms.
- By obtaining a Brand Account and using the Services, you agree that your acceptance of orders from Retailers for the purchase of Products will result in the conclusion of a contract (each an “Order”) for the sale of the relevant Product from you to the applicable Retailer in accordance with these Brand Terms (and any applicable Brand Terms and Conditions).
- You acknowledge that, where payment of any amount payable to you by a Retailer in respect of an Order is made to Markato, this shall discharge the relevant Retailer’s obligation to you to the extent of the amount paid.
- Each Brand has its own dedicated store page on the Site featuring its Products (including descriptions and other pertinent information) (“Brand Page”).
- Markato will provide you with self-onboarding features to create and design your Brand Page. You agree that you shall create and design your Brand Page in accordance with these Brand Terms. From time to time, Markato may, in its discretion, make available to you the option of engaging Markato to assist you with the creation and design of your Brand Page.
- To enable Markato to onboard you as a Brand and/or create your Brand Page, you must provide:
details of your Marks or other Content which you wish to be displayed on your Brand Page (and any specifications regarding the use, design or layout of such Marks or Content);
details of the Products which you wish to sell via the Services, including, as a minimum, (i) Product name; (ii) individual or prepack; (iii) Product variations; (iv) case size; (v) wholesale price (exclusive of VAT, GST or similar taxes); (vi) retail price; (vii) Product descriptions; and (viii) whether Products are active or inactive;
high resolution photography (Product and lifestyle) (see further Paragraph 4.2);
details of your order minimums (see further Paragraph 4.3);
details of the pick-up location from which your Products shall be collected for shipment;
details of the lead-time that you require from the acceptance of an Order to the time when your Products will be packaged and ready for shipment (see further Paragraph Error! Reference source not found.);
details of any requirements you may have in relation to the shipment of your Products (e.g. preferred shipping method);
details of any specific terms and conditions that shall apply to the sale of your Products (which must be consistent with these Brand Terms) ("Brand Terms and Conditions"); and
such other information or Content that Markato reasonably requests.
- You agree that Markato may adjust, edit or remove Content you submit in order to comply with Markato’s internal specifications/requirements, policies and these Brand Terms.
- Markato reserves the right to approve the final contents, look and feel of your Brand Page in its sole discretion.
- As part of the onboarding process, you are required and agree to provide high-resolution photographs of your Products.
- Photographs that could reasonably be considered objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful or otherwise inappropriate are prohibited.
- You shall submit all photographs as indicated by Markato, and Markato will select the best quality and most appropriate photographs for your Brand Page. Markato reserves the right to reject content that violates Markato’s internal specifications/requirements, policies and these Brand Terms.
Order Minimums (Quantity and Value)
- You may set minimum order quantities for your Products (i.e. the minimum quantity of Product that a Retailer must order in each Order), which will be displayed on your Brand Page ("Minimum Order Quantity").
- You may set minimum order values for your Products (i.e. the minimum value of Product that a Retailer must order in each Order), which will be displayed on your Brand Page ("Minimum Order Value"). You acknowledge that Markato may impose its own Minimum Order Values on Retailers, and that Market may restrict a Retailer from placing an order for your Products which is less than Markato's Minimum Order Value (even where the order value is more than you Minimum Order Value).
Content License, Representations and Warranties
Licence to use the Site, Application and Services and Restrictions
- Subject to your compliance with our Terms of Services, we grant you a limited, revocable, non-transferable, non-sublicensable, non-exclusive, royalty-free, licence to use and access the Services via the Site and Application.
- Notwithstanding Paragraph 5.1.1, you agree that you shall not use any of our Marks without our express prior written consent.
- You shall comply with any reasonable directions given by Markato in relation to your use of the Site, Application or Services.
- You shall not, and shall not permit or assist any other person, firm or company to:
copy, reproduce, translate, arrange, modify (including eliminate errors), enhance, adapt, supplement, create derivative works from the Site, Application or Services;
transfer, distribute (whether by way of rental, sale, licence or otherwise) or disclose all or any part of the Site, Application or Services, or grant, agree or attempt to grant a security interest in, or otherwise encumber, the Site, Application or Services; or
duplicate, disassemble, decompile, de-obfuscate, reverse engineer or otherwise create or attempt to create the source code from the object code of the Site, Application or Services; or
circumvent any feature of the Services, including any security or access control mechanism, in whole or in part.
License to use Your Brand Materials
- In connection with your use of the Services, you hereby grant to Markato and its Affiliates a worldwide, perpetual, non-exclusive, transferable, sublicensable, royalty-free license to use, view, copy, adapt, modify, distribute, publicly display and publicly perform (through any means necessary) and Marks, Content or information that you provide to Markato ("Your Brand Materials") in connection with your Brand Account, in each case for the purposes of providing you with the Services and/or for the purposes of any of Markato’s advertising, marketing, publicity and other initiatives and events.
- Markato does not claim any ownership rights in any of Your Brand Materials and nothing in these Brand Terms will be deemed to restrict any rights that you may have to use and exploit Your Brand Materials.
- Markato agrees to use Your Brand Materials in accordance with any specifications regarding the use, design or layout of Your Brand Materials that you provide to us, subject at all time's to such specifications complying with Markato’s internal specifications/requirements, policies and these Brand Terms
- You hereby agree that Markato may, at its option, grant a limited, royalty-free, revocable sublicense to:
Retailers to use Your Brand Materials on their website for the sole purpose of promoting Products purchased from you through the Services; and
to our third party service providers, solely for the purpose of enabling such service providers to provide services to us (and not for any commercialisation purposes).
Representations and Warranties
- You acknowledge and agree that you are solely responsible for Your Brand Materials that you make available to us. Accordingly, you represent and warrant that:
you are either the sole and exclusive owner of Your Brand Materials that you make available to us or you have all rights, licenses, consents and releases necessary to grant to Markato the rights in Your Brand Materials as contemplated under these Brand Terms;
neither Your Brand Materials nor your posting, uploading, publication, submission or transmittal of Your Brand Materials or the use by Markato or any of its permitted sub-licensees of Your Brand Materials (or any portion thereof) on, through or by means of the Services or social media platforms will infringe, misappropriate or violate any rights (including intellectual property rights) of a third party, or contain inaccurate, misleading, libellous, misleading or otherwise unlawful, abusive, harassing or obscene material, or contain any computer virus or other malware that could in any way affect the operation of the Services, or result in the violation of any applicable law or regulation; and
you will not use a false e-mail address, pretend to be someone other than yourself or otherwise mislead us or third parties as to the origin of any posts. You are solely responsible for Your Brand Materials you provide and its accuracy. Markato takes no responsibility and assumes no liability, and you hereby release Markato from any such liability related to Your Brand Materials posted or otherwise made available by you, and you agree to indemnify Markato (and each other Indemnified Party) per the terms of the Indemnification section herein.
You acknowledge and agree that any materials, including without limitation questions, comments, feedback, suggestions, ideas, plans, notes, drawings, original or creative materials or other information or commentary regarding the Services (collectively, "Feedback") that are provided by you, whether by email, posting to the Site or social channels, or otherwise, are non-confidential and that Markato will be entitled to the unrestricted use and dissemination of such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
Product Listing and Compliance
Markato reserves the right to accept or reject any Products.
Maximum List Price
Markato has a maximum price for Products listed on the Services. Please visit for Markato’s current policy.
Product and Content Compliance
- You acknowledge and agree that you will not sell, or offer for sale, via the Services, any of the following products or services:
Drugs, Drug Proprietaries, Druggist Sundries
Drug Stores, Pharmacies
Direct Marketing – Travel-Related Arrangement Services
Direct Marketing – Outbound Telemarketing Merchants
Direct Marketing – Inbound Telemarketing Merchants
Cigar Stores and Stands
Dating and Escort Services
Betting, including Lottery Tickets, Casino Gaming Chips, Off-Track Betting, and Wagers at Race Tracks
Computer Network/Information Services, for the sale of access to cyberlockers or remote digital file-sharing services
Digital Goods – Games, for Transactions involving skilled game wagering (for example: daily fantasy sports)
Non-Financial Institutions – Foreign Currency, Non-Fiat Currency (for example: Cryptocurrency), Money Orders (Not Money Transfer), Travelers Cheques, and Debt Repayment, for the sale of cryptocurrencies
- Without limit to the foregoing, all Products that you make available via the Services, and Your Brand Materials, must comply with Markato’s Product Guidelines
- You agree to:
abide by Markato’s Product Guidelines and to refrain from making available any prohibited Products identified in Markato’s Product Guidelines
comply (and ensure that your Products comply) with all applicable laws, rules and regulations, including safety, labelling, testing, warning, import/export and other consumer protection law requirements. (You acknowledge and agree that Markato will not be responsible, and disclaimers any and all liability, for any failure by your Products to comply with applicable laws, rules and regulations, including safety, labelling, testing, warning, import/export and other consumer protection law requirements);
not infringe upon or misappropriate the intellectual property, publicity or other rights of others;
not provide any false, inaccurate or misleading information about your Products; and
ensure that you have all necessary rights, licenses, permissions and consents to offer for sale and sell the Products through the Services.
- You acknowledge and agree that Markato is not responsible for determining whether you meet the above requirements, and you hereby release Markato from any liability with respect thereto and agree to indemnify Markato (and each other Indemnified Party) as set forth in the Indemnification section set forth below.
- Failure to comply with Markato’s Products Guidelines may result in the temporary suspension or closure of your Brand Account, in our sole discretion.
- You acknowledge and agree that the prices on your Brand Page, for Products to be sold in a particular territory, will not be higher than the wholesale price you offer on any other wholesale channels in respect of such Products in the relevant territory.
- Product prices on your Brand Page shall be displayed exclusive of VAT, GST or similar taxes.
- You acknowledge and agree that Markato may perform routine price and content audits of the Products listed on your Brand Page. That includes reviewing for wholesale and retail price consistency between your sites and reviewing discrepancies that are communicated to us from Retailers.
- In the event a discrepancy is found, Markato may reach out to you and require certain action be taken to resolve the issue. If you fail to properly and/or timely respond to the discrepancy, Markato reserves the right to temporarily suspend or permanently terminate your Brand Account.
Title, Returns, Promotions
Orders with a Brand
- Markato offers each Retailer with the right to freely return (and, where applicable, collect a refund for) the Products specified in the first Order submitted by the Retailer to a Brand. This right shall not apply to second and subsequent Orders between a Retailer and Brand. In relation to the first Order submitted by the Retailer to a Brand, from the date the order is placed, Markato will, for a limited period of time, fund a full refund in the form of "Markato Wallet Credits" for any qualifying Product that a Retailer wishes to return.
- Markato, not the Brand, takes on this return risk, as returned items will not be deducted from your payout for the order. Markato reserves the right to make available such return/refund services to Retailers in the manner and form, and subject to the condition, determined by Markato in its discretion. For example, refunds for returned Products may be made available in the form of "Markato Wallet Credits", to be spent by the Retailer via the Services, rather than cash refunds, and the availability of such return/refund rights may be subject to maximum refund values.
- Markato may at its discretion take title to all Products returned by a Retailer pursuant to Paragraph 8.1, subject to its return policies (not all Products are eligible for return).
- Markato may, at its option, promote and distribute any returned Products through its various redistribution channels. Retailers may purchase these returned Products without meeting the Brand’s Minimum.
- You acknowledge and agree that Markato may promote and redistribute such Products bearing your brand name through these and/or other avenues. If you do not want your returned Products to be re-sold or redistributed by Markato, you may contact Markato to discuss and agree on alternative arrangements to redistribute such Products (Markato shall have final and conclusive decision regarding the redistribution arrangements of returned Products).
Inventory, Orders, Recalled Products
You agree to keep sufficient inventory on hand for Products advertised as being available, and to keep inventory numbers current. You agree to promptly remove any Products that are discontinued or are out of stock through your Brand Account portal. It is your responsibility to keep your Product catalogue current and up-to-date based on availability (whether items are back-ordered or discontinued).
- Markato will notify you each time a Retailer places an order for any of your Products (and an Order is created). Your Brand Account will also be updated with new Order details. You will be able to review the Order details, edit inventory availability and confirm or cancel the Order.
- You shall confirm an Order within 2 Business Days of receiving the email notifying you of the Order’s conclusion and, if you wish to cancel an Order, you must do so within this timeframe ("Initial Order Confirmation/Cancellation Period"). Markato will notify the applicable Retailer on your behalf of any cancellation of an Order which you wish to effect and such Order will then cease to be binding on you or on the relevant Retailer from receipt of such notification by the Retailer from Markato.
- You have the right to cancel any Order by a Retailer for any reason.
- If you wish to cancel an Order after the Initial Order Confirmation/Cancellation Period, you will notify us and provide us with a reason for not being able to fulfil the Order. In turn, we shall, subject to the Terms of Service, use all reasonable endeavours to cancel the relevant Order.
- Consistent order cancellation may result in the temporary suspension or permanent termination of your Brand Account, in our sole discretion.
- You agree that Markato may cancel an Order at any time prior to the date on which your Products that are the subject of the Order are collected for shipment.
You agree to immediately inform Markato if any of your Products have been recalled, giving at least the following information: (i) Product name; (ii) SKU number or other identifying number; (iii) number of units sold to Retailers; (iv) purpose of recall; and (v) any other information necessary so that the Products may be properly and quickly recalled.
Once any Order has been concluded with a Retailer through the Brand Page and your use of the Services, you agree that you will fulfil such Order unless it is cancelled in accordance with Paragraph 9.2. You further agree to not influence Retailers to, or otherwise circumvent Markato’s process, to transact offline outside of the Services in any manner.
If you are going on vacation, or will be unable to fulfil new Orders, for a period of time, you may pause your Brand Page by inactivating your Brand Page using the functionality found in your Brand Account tab. You will still be able to access your Brand Account and you should still fulfil any Orders you have already accepted even while your Brand Page is inactive. During this period, Retailers will not be able to place new orders for your Products.
Fraudulent Activity and Monitoring
- You acknowledge and agree that Markato shall be permitted to monitor transactions, activities and behaviours associated with your Brand Account, including the volume any type of Orders entered into via your Brand Page and the incidents of fraud (or attempted fraud), and disclose such information (and any other data, metrics or Brand Information collected in connection with your Brand Account or use of the Services), to any Intermediary Service Provider, credit reference and fraud prevention or financial crime agency, or Regulatory Authority, for the purposes of monitoring, investigating and taking action in relation to any fraudulent, criminal or illegal activity, non-compliance with applicable laws, or any breach of these Terms of Service.
- You shall use your best endeavours to assist Markato (or any Intermediary Service Provider, credit reference and fraud prevention or financial crime agency, or Regulatory Authority) with any investigation that arises in relation to the Orders entered into via your Brand Page.
- If you suspect that any order submitted by a Retailer involves fraudulent, criminal or illegal activity then you shall immediately notify Markato about this suspicion and, save where not reasonably practicable having regard to the safety and security of the Brand, immediately cease to accept any such order.
- If Markato has reason to suspect that any transactions, activities or behaviours associated with your Brand Account, including any Orders entered into via your Brand Page, involve fraudulent, criminal or illegal activity, , non-compliance with applicable laws, or any breach of these Terms of Service, Markato may, in its absolute discretion, suspend or close your Brand Account (or remove or block your sale of one or more Products), without notice and without liability.
Shipping, Costs, Lead Times, Shipping Providers, Damaged Products
- Markato shall make available to Retailers the option to select an appropriate shipping method for your Products. Once a Retailer has selected the appropriate shipping method, Markato will be responsible for engaging a shipping provider, and procuring the shipping provider to collect the Products from the pick-up location notified to us during the registration of your Brand Account (or otherwise notified to us using the Services). Details of this shipping provider will be provided to you prior to the collection of the Products. From time to time, Markato may make available to you the option to select which shipping methods may (or may not) be used in relation to the shipment of your Products.
- Once the Products have been collected by the designated shipping provider from your pick-up location, Markato shall be responsible for handling transport or customs clearance of any Brand Products. Markato shall be responsible for arranging the payment of any applicable customs or import duties or costs (e.g. by invoicing such costs to the Retailer and arranging for them to be paid prior to the delivery of the Products).
- You shall be responsible for packaging your Products that are the subject of an Order to the relevant Retailer, in accordance with the details specified in the relevant Order.
- You agree to ensure that your Products, and all packaging of your Products, complies with: (i) applicable laws, including safety, packaging, labelling, warning, import/export, tax and other consumer protection laws; and (ii) the terms and conditions of the relevant shipping provider (as notified to you). (You acknowledge and agree that Markato will not be responsible, and disclaimers any and all liability, for any failure by your Products or any packaging of your Products to comply with (i) applicable laws, including safety, packaging, labelling, warning, import/export, tax and other consumer protection laws; and (ii) the terms and conditions of the relevant shipping provider (as notified to you)).
- You agree that your Products will be shipped using the shipping methods made available by Markato via the Services, and that you will not independently select and use your own shipping providers for the purposes of shipping your Products to Retails who have ordered your Products via the Services.
- At the time that the Retailer places an order for the purchaser of your goods and selects an appropriate shipping method the Retailer shall be notified of the applicable shipping costs ("Shipping Costs").
- You acknowledge that Markato may choose to invoice Retailers for the Shipping Costs, and that where it does so Markato shall retain all amounts paid by the Retailers in respect of such Shipping Costs (and that these amounts are separate from the Purchase Price, and will not be remitted to you).
- Shipping Costs may appear on a Retailer’s invoice, and shall reflect the actual shipping costs incurred to ship your Products.
- You acknowledge that:
Markato's ability to collect and timely ship your Products to Retailers pursuant to each Order is subject to your prompt and diligent compliance with Paragraphs 10.1.3 and 10.1.4; and
the Shipping Costs shall be calculated by Markato based on the information that you provide regarding your Products, and each Order, including in relation to Product dimensions, weight and the like.
- If you fail to comply with Paragraphs 10.1.3 and 10.1.4, or the information that you provide regarding your Products and each Order is inaccurate or false, then shipments may be delayed and/or cancelled, and Markato may incur additional Shipping Costs which are not (or have not been) invoiced to the Retailer at the time of the placement of the relevant Order. In this case, Markato reserves the right to charge you for the additional Shipping Costs incurred by Markato as a result of your failure to comply with Paragraphs 10.1.3 and 10.1.4 or to provide Markato accurate and true information regarding your Products, and each Order, and these amounts may be deducted from the Purchase Price that Markato pays to you in respect of such Products or Order.
- Upon the acceptance of any Order, Markato shall issue a tracking number which may be used for tracking the status of such Order (including packaging, shipment and delivery details).
Damaged or Missing Products
- Retailers may contact us via the Services if they have any issues relating to damaged or missing items in an order. Markato will notify you if a Retailer reports to Markato that a Product is damaged or if an order is missing items. Markato will pass along any photographs of any damaged item or of the order as a whole that it receives.
- You acknowledge and agree that you alone are responsible for resolving the issue, save that, where applicable, Markato shall assist you in making a claim with the relevant shipping provider.
- Save to the extent caused by the relevant shipping provider, you hereby release Markato from any liability with regard thereto. Markato reserves the right to withhold or deduct from payouts, or charge the bank account associated with your account, for items that are reported as damaged or missing. You have the right to dispute the charge with Markato but we reserve the right to reject any dispute/claim created by you about the charge.
Markato does not require you to purchase shipping insurance. However, Markato strongly recommends that you do so in order to facilitate any shipping dispute you have with a Retailer.
Commissions/Fees, Buy Now/Pay Later Terms and Facilitated Buy Now/Pay Later Terms
- By accepting these Brand Terms, you acknowledge and agree to the commissions, fees, calculations and payout timings set forth below.
- Markato may, in its absolute discretion, agree alternative commissions, fees, calculations and payout timings. Where applicable, details of these arrangements shall be set out in a separate Brand Addendum.
- You agree and authorize Markato and/or any payment processor engaged by Markato to deduct all commissions, fees and other amounts owing or payable by you under these Brand Terms from any amount payable to you.
Payment by Retailers and Trade Credit
- Markato may determine, in its discretion, the payment timings (each a “Buy Now/Pay Later Timing”) which shall apply to the discharge by the relevant Retailer of any amount payable by it in respect of an Order (the “Purchase Price”).
- Buy Now/Pay Later Timings may, for example, be structured as follows:
Payment on Order check-out confirmation: the Retailer is obliged to make payment of the Purchase Price at the time at which they complete the Order via the Services (the “Check-out confirmation Date”); or
60-day terms: the Retailer is granted a period of interest-free trade credit as a consequence of which the Retailer is obliged to make payment of the Purchase Price on the day falling 60 days after the Check-out confirmation Date.
- Markato shall be responsible issuing to each Retailer an invoice for the amounts payable in respect of an Order (including the Purchase Price and Shipping Costs), Each invoice shall be issued in a timely manner for the purpose of enabling payment in accordance with the applicable Buy Now/Pay Later Timing. You agree to provide us with all information that we may reasonably request for the purposes of preparing an invoice (including such information that is required to be included in the invoice for the purposes of complying with either Markato's or the Brand's legal obligation).
Payment to Brands
- Notwithstanding Paragraph 11.2, Markato shall pay to you the following amounts, in accordance with this Paragraph 11.3:
the Purchase Price amounts payable in respect of the Products sold by you to a Retailer pursuant to an Order (which, for the avoidance of doubt, shall be net of the Shipping Costs, customs or import duties (or related costs), and VAT or GST (or other applicable tax) due in respect of such Products; and
VAT or GST (or other applicable tax) due in respect of such Products, as determined in accordance with Paragraph 11.10,
("Brand Account Credit Amounts")
the Commissions payable by you to us in respect of the Products sold to a Retailer pursuant to an Order;
any fees (other than the Commissions) payable by you to us in respect of the Products sold to a Retailer pursuant to an Order pursuant to these Brand Terms; and
such adjustments as may be made to the Brand Account Credit Amounts in accordance with these Brand Terms,
("Brand Account Debit Amounts" and, together with the Brand Account Credit Accounts, the "Brand Payout Amounts")
- Where your Brand Account has a positive balance, Markato will initiate payouts to you of the relevant Brand Payout Amounts on the 1st and 16th day of each calendar month ("Brand Payout Cycle"). Once a payout is initiated payment will be made in accordance with Paragraph 11.7.
- Brand Payout Amounts for a given Brand Payout Cycle shall be calculated as the aggregate amount of all Brand Account Credit Amounts credited to your Brand Account since the last payout day up until the day immediately before the day of the relevant payout (i.e. the 1st or 16th day of each calendar month (as applicable) (Hong Kong time), minus all Brand Account Debit Amounts accrued during such period.
- You can choose for Brand Account Credit Amounts (minus Brand Account Debit Amounts) to be credited to your Brand Account in accordance with either of the following payment timelines:
"Fast" means amounts will be credited to your Brand Account upon confirmation of the delivery of the Products that are the subject of an Order; or
"Standard" means amounts will be credited to your Brand Account within 2 weeks of the confirmation of the delivery of the Products that are the subject of an Order;
("Brand Payment Timeline")
- In the event that you select "Fast" payment timeline as your Brand Payment Timeline for any Order, you shall pay a processing fee of 3% of the Purchase Price to Markato, such amount to be deducted from the payment of the Purchase Price to you and to be paid to Markato, unless Markato agrees to waive such processing fee. For early-bird Brands, Markato may agree to provide Brands with the “Fast" payment timeline for no additional charge, for a period of 6 months from the date on which the Brands' Brand Account is opened.
- Notwithstanding Paragraphs 11.3.1 to 11.3.5, Markato may, in its absolute discretion, agree alternative Brand Payment Timelines with you (e.g. at the time that you open your Brand Account or afterwards), and such alternative Brand Payment Timelines shall apply where applicable. Where applicable, details of these arrangements shall be set out in a separate Brand Addendum.
- You acknowledge and agree that Markato's ability to make payouts to you shall be subject to you:
completing the Airwallex KYC process (or any other KYC process of our specified payments processors); and
providing us with your bank account details via the settings in your Brand Account portal.
Until you have completed the above actions, payout amounts shall be withheld and shall be held by Markato for the credit of your Brand Account until such time as payment can be made in accordance with these Brand Terms. .
If, under any of the above provisions, a payment falls due to be made to you on a day which is not a Business Day, the payment date shall be extended to the next Business Day.
Markato reserves the right to suspend payouts to you due to any pending disputes, excessive chargebacks or refunds and/or other improper or illegal activity.
Payment into your chosen bank account
- Markato shall pay amounts owing to you to your chosen bank account.
- Where any amount payable to you is paid to your chosen bank account, it is anticipated that funds will appear within 1 to 2 Business Days of being processed. Markato is not responsible for any actions taken by your bank that may result in some or all of the funds not being made available to you.
Facilitated Payment Terms
- You acknowledge that from time to time Markato may enter into arrangements with one or more payments processors for the purpose of facilitating payments to you in respect of the Orders ("Payment Processor Arrangement").
- Where Markato enters into a Payments Processor Arrangement, it shall notify you of such additional terms (if any) that may apply to the facilitation of payments to you in respect of the Orders, and you acknowledge and agree to comply with such terms (and that such terms shall apply to the facilitation of payments to you in respect of the Orders).
- As at the date of these Brand Terms, Markato has entered into an arrangement with the payment processor [Airwallex] (the “Airwallex”) to enable Airwallex to facilitate payments to you in respect of your Orders ("Airwallex Payment Processor Arrangement").
- Airwallex will facilitate payments for your Orders by acting on your behalf in relation to the acquiring and collection of payments from Retailers for Orders and the making of payments to you, each in accordance with the Buy Now/Pay Later Timing made available to the Retailer and the Brand Payment Timeline selected by you respectively. For this purpose, you are required to enter into and comply with certain terms of Airwallex (the “Airwallex Terms”), and by accepting these Brand Terms you agree to be bound by the Airwallex Terms. The applicable Airwallex Terms can be found here:
such other Airwallex terms referred to or linked to the above terms,
in each case currently in force. To the extent of any inconsistency between this Paragraph 11 and the Airwallex Terms, the Airwallex Terms shall prevail.
- You acknowledge that Airwallex shall not be obliged to enter into an agreement with you, if to do so would be inconsistent with Airwallex's policies, processes or applicable law. In this case, we shall endeavour to inform you where Airwallex does not agree to enter into an agreement with you, unless prohibited from telling you under applicable law. In this case, or where Airwallex suspends or terminations all or part of your access to its payments processing services, we shall have the right to suspend or close your Brand Account in our sole and absolute discretion, without notice and without liability.
- You acknowledge that, for the duration of the Airwallex Payment Processor Arrangement:
no payment services that are regulated under Applicable Laws are provided by Markato and that all such payment services are provided by Airwallex;
Markato is designated as your authorised representative for the purposes of giving instructions to Airwallex on your behalf in relation to the collection of amounts due in respect of each Order from the Retailer and the payment of amount due in respect of any Order to you (including in relation to advising the Airwallex of the amount and timing of to apply to each such payment) and otherwise in relation to the operation of your relationship with the Airwallex in respect your use of Airwallex’s services in that respect (including in relation to the access to, and use of, your data processed by the Airwallex);
Airwallex shall share Brand and Retailer account data (where applicable) with Markato for the purpose of enabling Markato to make payments to Brands in respect of Orders (and you consent to the sharing of such data);
Markato shall be entitled to instruct Airwallex to pay to Markato the amount of any fees or commissions payable by you to Markato by way of deduction from any amount at any time being held by Airwallex for you; and
the services provided by Airwallex in relation to the facilitation of payments to Brands in respect of Orders are separate and distinct from the Services provided by Markato.
- Without limit to the other consents and authorisations provided in these Brand Terms, you authorise Markato to:
perform the Services; and
provide Settlement Data for the allocation by us of funds received from Retailers to your Airwallex Global Account in accordance with such Settlement Data.
- Where, in respect of any Order, by virtue of the Buy Now/Pay Later Timing granted to the Retailer and the Brand Payment Timeline that you have selected, payment of the relevant amount will be made by Airwallex to you before the Purchase Price is collected from the Retailer, Airwallex will apply the amount of the Purchase Price collected from the Retailer towards reimbursement of the amount to be paid by it to you in advance of collection from the Retailer, minus the agreed fees and other deductions.
- Unless otherwise agreed by Markato in writing, Markato charges Brands a commission (the “Commission”) of:
25% on the first Order from a Retailer;
15% on the second and each subsequent Order from a Retailer;
- 0% on each Order submitted by a Retailer that has been referred to the Services by the Brand
- Certain categories of Products and a Brand’s location may result in a Commission structure different from the foregoing, which will be communicated to you during onboarding or creation of your Brand Account.
- Markato may, in its absolute discretion, agree alternative Commissions with you (e.g. at the time that you open your Brand Account or afterwards), and such alternative Commissions shall apply where applicable. For example, we may agree to special or one-off Commissions that apply to "early bird" Brands. In some cases, Markato may agree to waive Commissions (e.g. for certain Orders).
- Commissions (including the first order surcharge) are calculated based on the Purchase Price amount of the order total in its agreed currency (i.e excluding shipping costs).
- Any items that a Retailer marks as damaged or missing shall be deducted from the payout of an Order (Markato does not receive a commission on these items). If you send a replacement for a damaged or missing item, Markato will pay you for the invoice value of the replacement item.
- Subject to the remainder of this Paragraph 11.10, you acknowledge and agree that you are responsible for the collection and remittance of any taxes, including VAT and sales taxes, as well as any other payments or filings, required under applicable law in your jurisdiction in respect of the sale of your Products via the Services.
- To the extent that VAT or GST (or other applicable tax) is applicable to sales of your Products, Markato will apply such VAT or GST (or other applicable tax) at the applicable rate. Markato assumes no responsibility with regard to the Brand's VAT or GST (or other applicable tax) compliance and reporting obligations. You hereby release Markato with respect thereto, and agree to indemnify, defend and hold harmless Markato (and each other Indemnified Party) against any and all such (withholding or other) taxes, contributions, penalties and/or interest.
- Markato will invoice each Retailer the applicable VAT or GST (or other applicable tax), as determined in accordance with 11.10.2, and remit this to you as part of the order payout for onward remittance to the appropriate tax authorities.
- All our commissions and related fees are exclusive of VAT, GST or similar taxes unless otherwise indicated. An amount equal to such VAT, GST or other similar taxes shall, where applicable, be paid by you at the prevailing rate in the relevant jurisdiction. We will provide you with a valid VAT invoice in respect the Services being provided.
Commitment to Quality and Service
- Brand and Retailer satisfaction is of utmost importance to the long-term health and success of the Markato community.
- Accordingly, Brands are subject to the following minimum standards in connection with the Services:
to accurately list and describe available Products on your Brand Page;
to ensure that any cancellation of an Order is effected in a timely manner;
to timely package and prepare for shipment Products that are the subject of an Order (in accordance with the specifications of the Order);
to promptly and effectively respond to Retailer inquiries; and
to promptly resolve missing or damaged orders with a Retailer.
- You acknowledge and agree that in order to ensure that you are meeting the foregoing Brand’s minimum standard requirements, Markato will track and measure your performance using a variety of metrics, including collecting reviews and ratings from your Retailers. Reviewed individually and as a whole, these metrics help Markato determine whether you are meeting Markato’s expectations on delivering a great experience for the Retailers.
- Such metrics also include:
accuracy of Product listings;
how often your shipments are later than the expected shipping date;
how often you provide a valid tracking number;
how long it takes you to confirm or cancel new Orders;
how often your orders are reported as damaged or missing Products:
how often your Products are on backorder, returned or cancelled;
how promptly and effectively you respond to Retailer inquiries;
how promptly and effectively you resolve missing or damaged orders with a Retailer.
Markato takes volume consideration into account when calculating metrics. For example, if a Brand has only 10 Orders, and 1 was damaged, then the damaged Order rate is 10%. While that metric is technically over Markato’s target, it does not necessarily reflect an actual problem with performance given the low volume of Orders.
Markato typically evaluates a Brand’s performance using the above metrics on an ongoing monthly basis, and more frequently during high volume periods such as the holiday selling season. The length of time between reviews depends on the volume of transactions of each flagged Brand Account and/or the extent of available data. Markato reserves the right to adjust its evaluation criteria as needed.
- If Markato determines that you are not meeting the minimum standards of quality and service, Markato may reach out to you in an attempt to resolve the issue and/or temporarily suspend or permanently terminate your Brand Account.
- Markato also reserves the right to put limits on your Brand Account, lower your visibility and/or search placement across the Services, limit your ability to sell with new Retailers until you resolve outstanding issues, and/or deny signing up any affiliated, related or duplicate accounts.
If your Brand Account is suspended for performance issues, you may appeal for re-activation by providing Markato with a plan of action for correcting the problems that contributed to the account being flagged and suspended. If Markato in its sole discretion approves the plan of action, you may resume selling through the Services. If you believe that the flag on your Brand Account is erroneous, you may contact Markato and explain why.
- Unless you opt out as set forth below, Markato may feature certain Brands, Products and Content at the top of their respective category, on Markato’s landing pages, in advertisements, email, social media accounts or in any other channels or media in its discretion.
- Markato may choose to bid on brand names and keywords relating to the Brand’s Products in advertising Products and may create SEO optimized pages or campaigns for Brand.
- Markato shall not be liable for any pricing or availability of a particular Product featured in a particular ad or marketing.
- If you do not want to participate in the Marketing and Advertising Program, please contact us.
- Markato may also offer Brands email marketing tools to use for their business. Additional terms and conditions may apply, including that all account leads must be sourced by you directly (purchasing lead lists from third parties is not permitted), the tools are not to be used for spam, and Markato reserves the right to throttle or limit the number of emails sent to Retailers via such tools.
Product Liability Insurance
- All Brands are required to maintain, at their own cost and expense, general commercial liability insurance (including comprehensive product liability) with respect to its Products listed on Markato in such amount as is reasonable and customary for companies of comparable size and activities. Markato reserves the right to request proof of such insurance coverage and other relevant information at any time.
your general obligations
You agree that you shall not use the Site, Application or Services to:
- publish or disseminate any material that is: (i) unlawful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive, facilitates illegal activity, depicts sexually explicit images or promotes unlawful violence, or involves discrimination based on race, gender, colour, religious belief, sexual orientation or disability; or (ii) in the opinion of Markato is harmful or inappropriate.
- send computer viruses, worms, Trojan horses, logic bombs or any other malicious program, file, or any other form of malware, intended to damage, interrupt, suspend, destroy and/or restrict the functionalities of any IT or telecommunication equipment;
- carry out commercial or advertising activities of any kind (notably the sending of unsolicited promotional messages, contests, lotteries, exchanges), or solicit payments or online donations;
- access, use or attempt to use another user's User Credentials and Security Passwords;
- attempt to access all or part of the Service without authorisation;
- use data mining tools, bots or any other similar tools for collecting and extracting data from the Site, Application or Services;
- hinder the operation of the Site, Application or Services and/or the Service;
- take any action that would be likely to result in Markato being held liable, or in losing the benefit of all or part of the services of Markato’s partners and services providers, notably its Internet service providers, payment services providers, financing partners/and or storage partners; or
- do anything that would be likely to harm the image and/or reputation of Markato or the Site, Application or Services.
- You agree to defend, indemnify, and hold harmless Markato and its Affiliates, and each of their respective Representatives ("Indemnified Parties"), from and against any and all Losses brought against, suffered or incurred by an Indemnified Party due to or arising out of or in connection with:
- any breach by you of the Terms of Service (including these Brand Terms);
- any breach by you of applicable laws; and
- any third party claims brought against the Indemnified Parties arising in connection with your Products (or the packaging, shipment or supply of your Products to third parties, including Retailers), including any such claims that arise from Product liability,
(each, a "Claim").
Subject to Paragraph 16.3, the Indemnified Party shall:
promptly notify you in writing of any Claim that arises; and
provide you, at your cost, with all assistance as it may reasonably require in relation to the conduct of such Claim.
An Indemnified Party may take any action to defend a Claim which it considers to be reasonably necessary if you unreasonably refuses to take action or unreasonably delays in taking action in defending or settling any such Claim. You shall be liable for, and shall indemnify and hold harmless the Indemnified Party from and against, all Losses incurred by the Indemnified Party in relation to taking such action.
Markato holds the benefit of the indemnities under this Paragraph 15 (and each other indemnity provided by you under the Brand Terms) for itself and on trust for each other Indemnified Party, in order to ensure that Markato may recover on behalf of each other Indemnified Party.
LiabilitY and DISCLAIMERS
- The limitations on liability set out in these Brand Terms do not apply in respect of any liability:
for death or personal injury resulting from negligence;
for fraud or fraudulent misrepresentation;
for wilful default of these Brand Terms; or
that cannot be excluded by law.
- You acknowledge and agree that, to the maximum extent permitted by law, the entire risk arising out of your access to and use of the Services remains with you. Subject to Paragraph 17.1, neither Markato nor any of its Affiliates (or any of their respective Representatives) shall be liable to you in contract, tort (including negligence), equity, statute or any other cause arising out of or in connection with the Brand Terms for your use of the Services, including any liability that may arise in connection with any Service interruption, computer damage or system failure, the cost of substitute products or services, or from any communications, interactions or meetings with other users of the Services or other persons with whom you communicate or interact as a result of your use of the Services.
- Subject to Paragraph 17.1, you acknowledge and agree that the Services are provided on an "as is" basis, without any warranty or representation of any kind and, to the maximum extent permitted by applicable law, Markato and its Affiliates (and each of their respective Representatives) expressly disclaim any warranties or conditions, express, implied, statutory or otherwise, with respect to the Services, including, without limitation, any implied warranties of title, merchantability, fitness for a particular purpose or non-infringement. In particular, neither Markato nor its Affiliates (or any of their respective Representatives), makes any warranty that:
- the Services (or any products, information, or other materials obtained by you in connection with the Services) will meet your requirements or expectations; or
- the Services will be uninterrupted, timely, secure, or error-free.
- Subject to Paragraph 17.1, neither Markato nor any of its Affiliates (or any of their respective Representatives) shall be liable to you in contract, tort (including negligence), equity, statute or any other cause arising out of or in connection with the Brand Terms for:
loss or corruption of data or information (whether direct or indirect);
loss of profits; loss of revenue; loss of goodwill; loss of use; loss of business or contract; loss of opportunity; increased costs or expenses; loss of savings; ex gratia payments or any other liability voluntarily assumed; or wasted expenditure including pre contract expenditure (in each case whether direct or indirect);
any actual or expected special, indirect or consequential loss of any type or pure economic loss including any loss arising out of the other party's liability to any other person, and whether or not reasonably foreseeable, reasonably contemplated or actually contemplated by the parties;
- Subject to Paragraph 17.1, Markato's and its Affiliates' and their respective Representatives' total aggregate liability to you in contract, tort (including negligence), equity, statute, or any other cause, arising out of or in connection with these Brand Terms (or any other Terms of Service) shall not exceed 100% of the amount of Commission charged to you in respect of the Services in the six (6) month period immediately preceding the date of the first cause of action giving rise to liability.
- You acknowledges that Markato shall rely on one or more Intermediary Service Providers for the purposes of providing the Services. The Intermediary Service Providers are independent third parties and are not Markato's agents or subcontractors. Subject to Paragraph 17.1, Markato shall not be liable for the acts or omissions of any Intermediary Service Provider, including any Losses arising from the fault of any Intermediary Service Provider such as a failure by an Intermediary Service Provider to comply with applicable laws, the Payment Transaction Rules, or any reasonable instructions provided by Markato.
- Markato will have the right to investigate and prosecute violations of these Brand Terms to the fullest extent permitted by law.
- You acknowledge and agree that Markato has no obligation to monitor your access to or use of the Services, but has the right to do so for the purpose of operating the Services, to ensure your compliance with these Brand Terms, to investigate a complaint or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body.
- Markato reserves the right, at any time and without prior notice, to remove or disable access to any of Your Brand Materials, in its sole discretion, considers to be in violation of these Brand Terms, applicable laws or otherwise harmful to the Services.
- Markato reserves the right to cooperate fully with law enforcement, and to involve and share information with law enforcement, governmental agencies or other oversight bodies if Markato suspects illegal activity may be taking place.
- Markato reserves the right to revoke your access to and use of the Services at any time, with or without cause. In the event Markato terminates these Brand Terms for your breach, you will remain liable for all amounts due hereunder.
- If you breach any of these Brand Terms, Markato will have the right to temporarily suspend or permanently terminate your Brand Account, and/or terminate these Brand Terms, in its sole discretion and without prior notice to you.
- You may terminate your relationship with Markato at any time by contacting us or as otherwise indicated in your Brand Account portal. Markato will take down your Brand Page as soon as practicable and will close your Brand Account once there has been an accounting of all monies due and owing.
applicable laws and Regulations
- You agree and understand that by opening a Brand Account and using the Services in any capacity, you shall act in compliance with all applicable laws. Failure to do so may result in the suspension of your ability to use the Services or the closure of your Brand Account.
- Without limitation to the above, your access to and use of your Brand Account and the Services, and the receipt of any amounts due to you under these Brand Terms, is subject to your continued compliance with all applicable laws, including the rules and directions of any applicable Regulatory Authority and, without limitation, all applicable tax, anti-money laundering ("AML") and counter-terrorist financing ("CTF") laws and regulations.
- You shall treat as strictly confidential and not use or disclose any information or documents which you receive (or have received) from us, whether before, during or after the term of the Brand Terms, and whether communicated orally, in writing, in electronic form or otherwise, relating to our business, financial situation, products and services (including the Services), expectations, processes and methods, customers or employees, in each case which is designated as being "confidential" or which by its very nature should obviously be treated as secret and confidential (together "Confidential Information").
- You may use the Confidential Information solely to the extent necessary to receive the benefit of the Services in accordance with the Brand Terms.
- The obligation to maintain confidentiality under this paragraph shall not apply to any Confidential Information to the extent that such information is:
- in the public domain through no breach of the Brand Terms;
- known to you at the time of disclosure without restrictions on use, or independently developed by you, and in each case there is appropriate documentation to demonstrate either condition; or
- required to be disclosed to a Regulatory Authority or by applicable laws.
- If you are required under applicable laws or by any Regulatory Authority to disclose Confidential Information you shall give us such notice as is practical in the circumstances of such disclosure and shall provide all cooperation reasonably requested by us in relation to mitigating the effects of, or avoiding the requirements for, any such disclosure.
- Any Confidential Information shall remain the property of Markato and may be copied or reproduced only with our prior written consent.
- Upon request, you shall return or destroy all materials containing our Confidential Information and, where such materials have been destroyed, confirm such destruction in writing. You shall be under no obligation to return or destroy such materials if and to the extent you are required to retain such materials under applicable laws, provided that you shall notify us in writing of such requirement, giving details of the materials which have not been destroyed or returned, and this paragraph shall continue to apply to such materials.
Assignment and Subcontracting
- You may not assign, novate, or otherwise transfer, any of your rights or obligations under the Brand Terms, or sub-contract the performance of any of your obligations under the Brand Terms, without the prior written consent of Markato. Any attempted assignment, novation, transfer or sub-contracting without our consent shall be void.
- Markato may assign, novate, or otherwise transfer any of its rights or obligations under the Brand Terms to any other person, or sub-contract the performance of any of its obligations under the Brand Terms (including the performance of the Services), at any time and without your consent, and you hereby consent to such assignment, novation, transfer or subcontracting, and agree to take all actions (including by way of executing documents) and other assistance required by Markato to ensure that any such assignment, novation, transfer or subcontracting is effective and enforceable. If you object to such assignment, novation, transfer or sub-contracting you may terminate your relationship with Markato by contacting us or as otherwise indicated in your Brand Account portal.
- You agree that the Brand Terms (together with the Terms of Service) constitute the entire agreement between you and Markato with respect to the use of the Services.
- You agree that in agreeing to and entering into the Brand Terms you have not been induced to do so by, and have not relied on, any statement, representation, warranty, assurance, covenant, indemnity, undertaking or commitment ("Representation") which is not expressly set out in the Brand Terms.
- You agree that your only right of action in relation to any innocent or negligent Representation set out in the Brand Terms or given in connection with the Brand Terms shall be for breach of contract. All other rights and remedies in relation to any such Representation (including those in tort or arising under statute) are excluded.
- Any notice (including any approval, consent or other communication) to be given in connection with these Brand Terms (a "Notice") shall be in writing and in the English language.
- A Notice shall be duly and validly given or made if given or served by hand or sent by electronic mail, or pre-paid registered or recorded delivery post.
- Notices to a party shall be addressed to: (i) in the case of Markato, our contact details as listed on the Site or in the Application; and (ii) in the case of Brand, the contact details submitted as part of registering your Brand Account.
- Any Notice given in accordance with this Paragraph 24.5 shall be deemed to have been served or delivered:
if given or served by hand, at the time of delivery;
if sent by pre-paid registered or recorded delivery, on the second Business Day after the day of posting; or
if sent by electronic mail, on the day on which the communication is sent and no report of non-delivery is received by the sender,
provided that any notice deemed to have been served or delivered after 17:00 on any Business Day or at any time on a day other than a Business Day shall be deemed to have been served or given at 09:00 on the next Business Day.
Upon the later of the closure of your Brand Account and the termination of your access to and use of the Services the Brand Terms shall terminate. All rights and obligations of the parties that by their nature are continuing will survive the termination of the Brand Terms.
If any provision or part of the Brand Terms is void or unenforceable due to any applicable laws, it shall be deemed to be deleted and the remaining provisions of the Brand Terms shall continue in full force and effect. If any invalid, unenforceable or illegal provision of the Brand Terms would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum deletion necessary to make it valid, legal and enforceable.
Successors and assigns
The Brand Terms shall be binding on, and enure to the benefit of, the parties to the Brand Terms and their respective personal representatives, successors and permitted assigns, and references to any party shall include that party's personal representatives, successors and permitted assigns.
Variation and waiver
- Subject to Paragraph 2.4 no variation of the Brand Terms shall be effective unless it is in writing (which for this purpose, does not include email) and signed by, or on behalf of, each of the parties. The expression "variation" includes any variation, supplement, deletion or replacement however effected.
- No waiver by Markato of any right or remedy provided by the Brand Terms or by law shall be effective unless it is in writing (which for this purpose, does not include email) and signed by, or on behalf of, Markato. The failure by Markato to exercise, or delay in exercising, any right or remedy provided by the Brand Terms or by law does not: (i) constitute a waiver of that right or remedy; (ii) restrict any further exercise of that right or remedy; or (iii) affect any other rights or remedies. A single or partial exercise by Markato of any right or remedy does not prevent any further or other exercise of that right or remedy or the exercise of any other right or remedy.
No partnership or agency
Nothing in the Brand Terms or in any matter or any arrangement contemplated by it is intended to constitute a partnership, association, joint venture, fiduciary relationship or other co-operative entity between the parties for any purpose whatsoever. Except as expressly provided in the Brand Terms, neither party has any power or authority to bind the other party or impose any obligations on it and neither party shall purport to do so or hold itself out as capable of doing so. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
- Notwithstanding that any amount is from time to time payable by Markato to you under or by virtue of the Brand Terms or otherwise, you shall not set off such amount against any amount payable by you to Markato under the Brand Terms.
- Markato may set off any amounts which from time to time are payable by Markato to you under or by virtue of the Brand Terms or otherwise against any amounts payable by you to Markato under the Brand Terms.
Without prejudice to any other rights or remedies that Markato may have, you acknowledge and agree that damages alone may not be an adequate remedy for your breach of the Brand Terms. The remedies of injunction and specific performance as well as any other equitable relief for any threatened or actual breach of such provisions of the Brand Terms may be more appropriate remedies.
Third party rights
Save as otherwise expressly provided in the Brand Terms:
- the Brand Terms are not intended and shall not be construed to create any rights or remedies in any parties other than you and Markato and its Affiliates, which each shall be a third party beneficiary of the Brand Terms; and
- no other person shall assert any rights as a third party beneficiary hereunder (notwithstanding any legislation to the contrary anywhere in the world).
The Brand Terms may be executed in any number of counterparts and by each party on separate counterparts, each of which when executed shall be an original, but all the counterparts together constitute one instrument.
The Brand Terms may be entered into by electronic means.
Controlling law and jurisdiction
- These Brand Terms and any Dispute shall be governed by the laws of Hong Kong.
- To the extent permitted by applicable law, the application of the United Nations Convention on Contracts for the International Sale of Goods, private international laws (e.g. conflict of laws principles) and consumer protection e-commerce regulations, where relevant, are expressly excluded.
- Each party irrevocably agrees that the Courts of Hong Kong shall have exclusive jurisdiction in relation to any Dispute.
- Each party irrevocably waives any right that it may have to object to an action being brought in those Courts, to claim that the action has been brought in an inconvenient forum, or to claim that those Courts do not have jurisdiction.
- For any disputes regarding an order with a Retailer, you may contact Markato to help resolve the issue. Markato will use good faith efforts to assist you and the applicable Retailer to resolve such dispute.
- "Affiliate" means, in relation to any person, any other person directly or indirectly Controlled by, or Controlling, or under common Control with, that person.
"Brand Account Information" means all information (including Confidential Information) disclosed or made available by you to us, whether directly or indirectly, in relation to your application for, or operation or maintenance of, a Brand Account and/or use the Services, including pursuant to Paragraph 3.1.2 and 3.1.3.
"Brand" means a seller who offers to sell and/or sells its Products to Retailers through the Services. The term “Brand” also includes “Distributor” as defined below.
"Brand Addendum" means any Brand Addendum that we agree to enter into with you. The purpose of a Brand Addendum is to set out certain additional terms and conditions which we have agreed shall apply to your access and use of, and our provision of, the Site, Application and Services. You acknowledge that we reserve the right to agree a Brand Addendum with you in our sole and absolute discretion.
"Business Day” means a day (other than a Saturday or Sunday) on which commercial banks are open for business to the general public in both: (i) the location in which the Services are provided to you; and (ii) the location of Markato's corporate office (as identified at the start of these Brand Terms).
"Content" means Marks, applications, tools, text, audio, video, photographs, graphics, links, summaries, features, stories, terms and conditions and other data or information;
"Control" means the power of a person to secure, directly or indirectly, (whether by the holding of shares, possession of voting rights or by virtue of any other power conferred by the articles of association, constitution, partnership deed or other documents regulating another person or otherwise) that the affairs of such other person are conducted in accordance with their or its wishes.
"Dispute" means any dispute, claim, controversy or difference arising out of or in connection with these Brand Terms, including any question regarding its existence, validity, subject matter, interpretation, negotiation, termination or enforceability.
"Distributor” means a seller who offers to sell and/or sells a third party brand’s Products to Retailers on the Services under express, valid and continuous authorization from such third party brand.
"Intellectual Property Rights” or "IP" means all intellectual property rights, including copyrights (including databases and other compilations of information), moral rights, patent rights, trade secrets and know-how, confidential information, trade marks, trade names, and service marks, domain names, get-up, logos, registered and unregistered design rights (including applications for, and registrations, extensions, renewals, and re-issuances of, the foregoing),and any other intellectual property or proprietary rights and all other similar rights in or to intangible property recognized in any jurisdiction in the world, now or hereafter existing, whether or not registered or registrable.
"Intermediary Service Provider" means any third party supplier, consultant or other person engaged by or on behalf of Markato, whether directly or indirectly, for the purposes of enabling Markato to provide the Services, including any Payments Processor, but excluding any Representatives of Markato.
"Losses" means claims, liabilities, expenses, fines, penalties, costs, losses or damages of whatever nature (including legal costs on a full indemnity basis).
"Marks" means any trade mark, service mark, trade name, trade dress, get up, brand, logo, tagline, slogan, product name, corporate name, internet domain name or other designation or distinctive sign whether registered or not (including any applications or registrations related thereto and the goodwill associated therewith).
"Product Guidelines" means Markato's guidelines for any products to be sold or purchased via the Services. Markato shall make available to you the Product Guidelines via the Services. Markato reserves the right to modify the Product Guidelines, in its sole and absolute discretion, from time to time.
"Products" means the products which you make available for sale through the Services.
"Regulatory Authority" means any foreign, domestic, state, federal, cantonal, municipal or local governmental, executive, legislative, judicial, administrative, supervisory or regulatory authority, agency, quasi-governmental authority, court, commission, government organisation, self-regulatory organisation having regulatory authority, tribunal, arbitration tribunal or panel or supra-national organisation, or any division or instrumentality thereof, including any tax authority.
"Representatives" means, in relation to a party, its directors, officers, employees, agents, permitted contractors and subcontractors, permitted sub-licensees, and professional advisers.
"Retailer" means a buyer who purchases Products through the Services for the purpose of resale.
“Settlement Data” means a data file which contains all information necessary, including such type of information as Markato or any Intermediary Service Provider may inform you from time to time, to allow Markato or any Intermediary Service Provider to allocate any funds received from Retailers to Markato’s Airwallex Global Account and your Airwallex Global Accounts.