Domo Seller Agreement and Policies

Updated 03 MAY 2019

By entering into this Marketplace Agreement ("Agreement") on the date on which Seller clicks the “I Accept” button (“Effective Date”) you (“Seller”, “you”, "your") represent that you are an adult of at least 18 years of age, capable of validly entering into agreements and performing your obligations hereunder. BY REGISTERING FOR AND USING THE SERVICES, YOU AGREE TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT, AND ALL POLICIES OF THE PLATFORM ARE INCORPORATED BY REFERENCE.

 

The Seller shall provide a copy of the following documents upon entering into the Agreement by uploading the same documents to , and domo reserves the right to verify these documents and other submitted information prior to effecting Payments:

 

Required documents

Registered business

Individual

  1. Business registration certificate (digital copy)

  2. Bank statement bearing company name and account number

  1. National identity card (
    front and back, digital copy)

  2. Bank statement bearing name and account number

 

The Seller represents and warrants to domo that it is a Brunei registered entity, Brunei citizen (at least 18 years of age), or a Brunei Permanent Resident (at least 18 years of age), or a Brunei registered foreigner (at least 18 years of age).

 

  1. Where Seller breaches the aforementioned warranty, Seller agrees that any monies which are not yet paid to it by domo for fulfilled Order(s) shall be forfeit to domo and Seller gives up all claim and right to such monies.

 

Domo reserves the right to notify you from time to time of changes to the terms and conditions of this Agreement.

 

Overview

1. Domo Services to You

Domo offers you general services consisting of:

  • the listing of your products;

  • the offer for sale by you of your products to domo platform users;

  • customer services (for a limited time);

  • order verification and payment processing; and

  • delivery coordination,
    and other additional services that you may request and that we may offer you.

For more information see Section 2 and 6 of the Terms.

 

2. Products You Can Sell

You can sell goods that are legally permitted to be sold and that comply with our Policies. Since the goods are sold by you, you are responsible for all product warranties, defects, etc. as if you sold the goods directly to domo platform users or customers

For more information see Section 4 of the Terms.

 

3. Fulfilment

Depending on the mode of fulfillment, orders must be ready to hand over to our delivery partners by same day or next working day of the order being notified to you, or as set out in the Policies.

For more information see Annex 3.

4. Payment

Domo will remit to your bank account or stored value facility account, as the case may be, the sales proceeds after deducting Fees due and payable to domo for offering the Services to you.

 

For more information see Sections 2, 3 and 6 of the Terms.

 

5. Your Obligations

When listing your goods you must ensure that you have the right to use the advertising materials (photos, text, etc.) you upload on our site. After shipping your products, you are responsible for returns and product warranties.

For more information see Sections 4 and 9 of the Terms.

 

6. How To End Our Relationship

You may end your seller relationship with domo at any time and without penalty by providing us 14 days’ written notice of your intention to discontinue the use of our services.

For more information see Section 12 of the Terms.

 

7. Dispute Resolution

This Agreement is governed by the Laws of your jurisdiction.

 

Where we are in disagreement regarding any matter, we will first try to find an amicable solution to our disagreement. If this fails, either party may refer the matter to arbitration.

For more information see Annex 2.

 

8. Definitions and Interpretation

See Section 13 of the Terms and Annex 1.

 

 

1. Acceptance

A. Any person who wants to access the Platform and use the Services to sell Goods must accept the terms and conditions of this Agreement ("Terms") without change.

 

B. Domo reserves the right to change at any time and in its sole discretion any of the terms and conditions contained in these Terms, the Schedules, and any fees, procedures, Policies governing the Services, the Platform or . These changes will take effect seven (7) days from notification by notice to Seller or posting on the Platform , or otherwise. Changes to fees and Policies may be posted without notice. Seller is responsible for reviewing notices and Policies. Seller's continued use of the Services, the Platform and/or  following the changes taking effect will constitute Seller's acceptance of such changes, and if Seller does not agree to any changes to these Terms or to the Policies, Seller must discontinue the use of the Services, the Platform and  (except to the extent required herein), and the Agreement will be terminated. For the avoidance of doubt, newer versions of the Terms and/or Schedule(s) supersede older versions.

 

C. Use of the Services, the Platform and  is limited to parties that can enter into and form contracts under applicable law. You represent and warrant that: i) you are an adult of at least 18 years of age capable of validly entering into the Agreement and performing your obligations hereunder; ii) where you are a business, that a) you are, and will remain at all times, a business duly organized, registered, validly existing and in good standing under the laws of the country in which the business is registered; b) you have all requisite rights, powers, and authority to enter into the Agreement and perform your obligations hereunder; and c) any information provided or made available by you or your Affiliates is at all times accurate and complete. You further represent and warrant that you and any person or entity that has a financial interest in your business, or any person or entity acting on your behalf of: a) has no affiliation with any Domo employee which may result in a potential or actual conflict of interest; b) has not been barred or otherwise prevented from selling on Domo; or c) has not been involved in any lawsuit or claim that has a bearing on the Agreement.

 

2. Services – Fees

A. Domo provides a platform for third-party sellers and customers to complete transactions. Except as set out in the Agreement, and to the extent permitted by Law, Domo is not involved in the actual transaction between Seller and Customers. As owner or provider of the Goods and vendor thereof, it is up to Seller to, among others, ensure the sale is legally authorised, accurately describe the Goods, package, ship, insure, warrant and fulfil all other sale and after sale obligations applicable by law or by trade. Seller uses the Services, the Platform and , at its own risk.

 

B. Seller authorizes Domo to act as its exclusive payment processing agent for the purpose of: i) collecting the Sales Proceeds and in general any sums due or owing under the Agreement and holding the same; ii) processing customer payments, refunds, and adjustments; (iii) remitting the Payment; and iv) paying to Domo, to Domo Affiliates, and to third parties (including Customers) any amounts Seller owes to them. As a payment processing agent, Domo will have no responsibility with respect to the legality of transactions occurring between Seller and Customers and Seller undertakes that all transactions are in compliance with the Laws (including anti money-laundering regulations).

 

C. Services: The services ("Services") provided by Domo under the Agreement are classified as:


1. General Services ("General Services") consisting in: i) the listing and publishing of Content Materials regarding the Goods on the Platform; ii) the offering for sale of the Goods on behalf of Seller; iii) limited Customer care services; iv) Order verification; v) management of deliveries and returns; vi) collection, reconciliation and execution of all Sales Proceeds as payment processing agent for Seller; and vii) other services ancillary to the Services; and
2. if applicable, Additional Services that may be provided to Seller by Domo or by third parties.

 

D. Fee: in consideration of the provision of Services, Domo shall be entitled to charge and invoice seller the fee.

 

E. Administrative fee / Subscription Fee: Domo will be entitled to impose on seller om Administrative Fee / Subscription Fee, and/or take any other measure, it deems appropriate, in case of non-compliance by Seller with any undertaking stipulated herein.


F. Seller agrees that Customers satisfy their obligations to Seller as regards the Customer Agreement when Domo receives the Sales Proceeds. Domo's obligation to remit funds received by it on Seller's behalf is limited to the Payment.

 

  1. Domo will provide to Seller information in relation to each Order as necessary under the Agreement.

 

  1. Domo will provide support services to Seller by way of coordinating and answering Customer enquiries and processing returns as

provided in the Policies.

 

  1. Sellers agrees that Domo may provide Seller with electronic documents such as tax invoice, receipt, credit note, debit note, or any other document Domo may issue in compliance with the Laws.

 

3. Sales Proceeds - Payment

A. Sales Proceeds will represent an unsecured claim against Domo. Domo may combine Sales Proceeds and Payments with the funds of other users of its services. For the avoidance of doubt, Seller will not receive interest or any other earnings on Sales Proceeds or Payments.

B. Unless otherwise agreed in writing, Payments will be made by Domo to Seller in accordance with Schedule A.

C. Domo may delay, suspend or cancel any Payment in case Seller breaches any term of the Agreement or Customer Agreement and any Payment made to Seller will not in any way be considered as a waiver of Domo's rights.

D. If Domo concludes that Seller's actions and/or performance in connection with the Agreement or the Customer Agreement are likely to result, or have resulted, in Customer disputes, Disputes, chargebacks or other third party claims, or if there are any sums owed by Seller to Domo, then Domo may, at its sole discretion, withhold any Payment for the longer of: i) the Minimum Suspension Period; ii) the completion of any investigation regarding Seller's actions or performance; or iii) the resolution of any Dispute.

E. Domo reserves the right to impose limits on Order or transaction values, on Customers or on Seller and will not be liable if: i) Domo does not proceed with an Order that would exceed said limit; or ii) Domo allows a Customer to cancel an Order because the Platform or the Goods are unavailable following the commencement of a transaction.

F. Without prejudice to any other rights and remedies which Domo has against Seller, if any sums payable by Seller to Domo under the provisions of the Agreement shall become due and be unpaid, Seller shall pay to Domo the Late Payment Interest.

G. To the extent required by the Laws, Domo will be entitled to withhold any and all taxes, duties, fees and other charges in connection with any Order, Payment or otherwise under the Agreement or the Customer Agreement. If Domo is required under the Laws or the law of any jurisdiction to deduct or withhold any sum as taxes imposed on or in respect of any amount due or payable to Seller, Domo will make such deduction or withholding as required and the amount payable to Seller will be reduced by any such amount necessary. Domo will provide Seller a certificate or any similar document proving that amounts deducted refer to withholding taxes applicable to Seller.

H. Any enquiry or dispute about any Payment must be received by Domo within one hundred and eighty(180) days after the Order date, failing which, Seller waives the right to dispute such Payment. Any inquiry or dispute about any payment to the Seller shall comply/follow the claims/dispute process/policy of Domo, which may be changed from time to time.

 

Seller Undertakings

General Undertakings: By using the Services, Seller undertakes, represents and warrants that it will:

  1. comply with all applicable laws, treaties, ordinances, codes and regulations;

  2. comply with all Policies;

  3. be responsible and pay all taxes, duties, fees and other charges arising out of or associated with the Order, the Payment or in any other way owed by Seller under the Agreement or the Customer Agreement

  4. will issue a valid invoice to the Customer, if required by the Law.

  5. obtain all necessary rights, licences, permits, or approvals required for the offer, advertising, and sale of the Goods on or through the Platform prior to their listing and will provide, as such time as Domo may so request, copies of these documents to Domo;

  6. ensure that any information provided under this Agreement, including for the listing (including the Content Materials) of the Goods, is accurate, current, and complete and is not misleading or otherwise deceptive;

  7. fulfil all Orders for Goods at their stated quantity and price to Customers who meet Domo's eligibility conditions;

  8. contract appropriate insurance covering its obligations thereunder and the Goods regardless of the fulfilment model chosen;

  9. provide, in the format and at such times as Domo may require, accurate, updated and complete information about the availability status, stock level and Listing Price of the Goods;

  10. ensure that the Listing Price for any Good offered to Customers will not exceed the price offered by Seller outside the Platform for the same product in like or lesser quantities under similar terms and conditions and, where a lower price is so offered, ensurethat the Goods benefit from that lower price;

  11. give Domo written notice of any requirement or provision of any contract that may conflict with any requirement or provision of the Agreement; and

  12. ensure that any person filling-in or signing any document, operating the  account, or handling the Goods and Products, on behalf of Seller (other than a Domo employee, contractor or agent, or a third party specifically mandated by Domo) has full power and authority to do so on behalf of Seller. Seller may not dispute the actions of such person insofar as they are in apparent compliance with the Agreement.

 

B. Negative Covenants: Seller further undertakes, represents, and warrants that it will not, directly or indirectly:

  1. infringe on any Intellectual Property Rights;

  2. post or display any materials that exploits or otherwise exploits persons under the age of eighteen (18) years or display pornographic materials of any kind;

  3. post or display any political or religious content;

  4. post or disclose any personally identifying information or private information about minors or any third parties without their consent or the parent's or guardian's consent;

  5. post any content that advocates, promotes, or otherwise encourages violence against any governments, organizations, groups or individuals or activities that leads to cruelty towards animal;

  6. conduct activities such as gambling, sweepstakes, raffles and lotteries or participate in any activities related to so-called pyramid or Ponzi schemes, or any other illegal, immoral or antisocial activities;

  7. use the Platform or the Services to purchase items sold on the Platform for commercial use or for use on behalf of a third party;

  8. use, or access, input, or upload on, the Platform and/or  any material that is not directly connected with the Goods, or permit the use of Seller's account or offer "free space" on or other access to the account or the Platform to third parties;

  9. access content and information that concerns any party other than Seller, transmit unsolicited commercial or bulk email, interfere with the proper working of the Platform or , transmit any viruses, Trojan horses, or other harmful code, or attempt to bypass any mechanism used to detect or prevent such activities;

  10. create liability for Domo (and its Affiliates, directors, employees, contractors, agents, subcontractors, etc.) or expose it to undue risk or otherwise engage in activities that Domo, in its sole discretion, determines to be harmful to Domo's operations, reputation, or goodwill;

  11. contact any Customer and will not enter into any direct arrangements with the Customer for the offer of Goods or other products or services, except where notified or permitted by Domo to do so for the purposes of fulfilling a Customer Agreement;

  12. enroll or offer to enroll Customers in any scheme or program other than as strictly required for warranty purposes;

  13. open multiple shops on the Platform without Domo’s prior approval;

  14. duplicate stock keeping units on the Platform; and

  15. be a party to, whether actively or otherwise, any scheme, transaction, sale or otherwise, which are not for the bona fide sale and purchase of Goods. For the avoidance of doubt, any scheme, transaction, sale or otherwise which are not bona fide sale and purchase of Goods include: -

    1. any scheme, transaction, sale or otherwise, which primary or associated purpose is for the encashment of vouchers, codes, and/or rebates;

    2. any scheme, transaction, sale or otherwise, which primary or associated purpose is gamification for the purpose of accumulation of any rebates, loyalty points, and/or credit (whether such rebates, points, and/or credit is issued by Domo, or otherwise); and/or cycle-selling operations etc.

    3.  

The Seller and Domo agree that abovementioned activities in 15(a) and 15(b) are fraudulent activities.

 

C. Undertakings in relation to Goods: Seller undertakes, represents and warrants that:

  1. the Goods are of merchantable quality, fit for their purpose, free from defects, and strictly conform to their listed specifications;

  2. the Goods and their offer for sale are not prohibited and comply with the Laws (including all minimum age, marking and labelling requirements, product warranties, specifications and performance criteria, etc.) and conform with Policies, including prohibited and restricted items;

  3. it has full unencumbered title in the Goods and in any materials incorporated in the Goods and all the Goods are supplied free of all liens, charges or other security interests;

  4. it will provide the Goods and Products with all legally required documentation (including warranty card, warranty information and invoice) and update the same when legally required;

  5. it will provide Domo and/or Customer any document pertaining to the sale of the Goods or Customer Agreement (including sales invoice and tax invoice), as may be requested by Domo and/or Customer;

  6. it will not, directly or indirectly, sell Inadequate Products, or expired (or soon to be expired) Products;

  7. it will not, directly or indirectly, sell counterfeit, "replica" and name brand "knock off" products or products violating any Intellectual Property Rights; and

  8. the Seller shall not be a party to any scheme, sale, transaction or otherwise, which are not for bona fide sale of Goods.

 

D. Seller undertakes and warrants that all its representations, warranties and undertakings in the Agreement will be fulfilled and will remain true and correct at all times and will subsist for so long as necessary to give effect to each and every of them in accordance with the Terms, provided that and in the event of any of them becoming or unfulfilled, untrue or incorrect, Seller will promptly inform Domo of the same and rectify the situation.

 

5. Domo Rights

A. Notwithstanding any provision in these Terms, Domo shall have the right, in its sole discretion, to delay or suspend listing of, or to refuse to list, or to de-list, or to require the Seller not to list, any or all Goods that the Seller makes available to be listed for sale through the Platform or be subject to Sales Traffic Activities, if any, provided by Domo, or to deactivate the Seller Account/s of the Seller.

B. Domo may in its sole discretion withhold for investigation and/or refuse to process any Order. Domo may use the services of one or more third party processors or financial institutions or such other service providers in connection with the Services.

C. The prices indicated in the Order will not be subject to any variations and, unless otherwise agreed in writing, will include fulfilment costs (e.g., packaging, storing or delivery costs) according to the Fulfilment Model. Domo reserves the right to reject any particular form of Order or payment for the Goods, and not to honour or accept any discounts, coupons, gift certificates, or other offers or incentives made available by Seller.

D. Domo may in its sole discretion withhold for investigation, refuse to process, restrict shipping destinations for, stop and/or cancel any Order. Seller will stop and/or cancel orders of Goods if so asked by Domo (provided that Seller has transferred the Goods to the applicable carrier or shipper, Seller will use commercially reasonable efforts to stop and/or cancel delivery by such carrier or shipper). Where Seller has already received Payment, Seller will refund any Customer that has been charged for an Order that Domo has stopped or cancelled.
E. Domo (directly or through a third party) will bear the risk of credit card fraud (e.g. fraudulent purchases arising from the theft or unauthorized use of a Customer’s credit card information) occurring in connection with the Order, except with respect to: i) Orders that Seller does not fulfil in accordance with the Order information, or ii) any fraud directly or indirectly linked with Seller. Seller will bear all other risk of fraud or loss, including any losses suffered by Domo, its Affiliates, and/or its partners, for any breach of the Seller’s warranties and undertakings per Clause 4 of this Agreement. Seller will promptly inform Domo of any changes to the nature or specifications of the Goods or any pattern or behavior of fraudulent or other improper activity with respect to any of the Goods that may result in a suspicion or higher incidence of fraud or other impropriety associated with transactions involving the Goods.

F. Domo may subject the Goods or Seller to Sales Traffic Activities, use mechanisms that rate, or allow Customers to rate or review the Goods and/or Seller's performance as a seller and Domo may make these ratings and reviews publicly available.

 

6. Use of Tools - Additional Services

A. Seller hereby undertakes and represents that its use of the Services, Platform  and the selection of its user name, store name and store in store name, will not be unlawful, inaccurate, misleading, false, fraudulent, defamatory, trade libellous, or otherwise unsuitable. Any password provided by Domo to Seller may be used only during the period Seller is permitted to use the Platform manage the catalogue of Goods listed on the Platform update information about the Goods (e.g. availability status, stock levels and Prices), electronically accept and fulfil the Orders and review the completed Orders, and may not be shared with any person other than employees of Seller that need to use it for the execution of the Agreement. Seller is responsible for supplying and authorizing access to its users. Seller is responsible to terminate or reassign access to any Seller user that Seller deems to have become unauthorized to access the Services at any time.

B. Seller acknowledges that the availability of the Services, Platform  is subject to:

availability of resources, including, without limitation, resources under the control of Domo and availability of a suitable network infrastructure at the time at which the Service is requested or delivered; if applicable, geographic and technical capability of communication networks and other delivery systems at the time at which the Services are requested or delivered; provisioning time that may be required by Domo to provide the Services; and Seller meeting the technical requirements for accessing  from time to time.

C. connection with the Services, including: i) generating fraudulent, repetitive or otherwise invalid clicks, impressions, queries or other interactions, whether through the use of automated applications or otherwise; ii) other than through reporting offered by Domo under the Sales Traffic Activities, collecting any user information, indexing or caching any portion from the Platform or , whether through the use of automated applications or otherwise; iii) targeting communications of any kind on the basis of the intended recipient being a user of the Platform or ; iv) interfering with the proper working of the Platform Seller Centre, the Services or Domo's other systems; v) transmitting any viruses, Trojan horses or other harmful code; or vii) attempting to bypass any mechanism Domo uses to detect or prevent such activities.

D. Under terms and conditions agreed to in the , the Agreement and/or in a separate agreement, Seller may be offered the possibility to purchase goods and services provided by Domo and/or third parties ("Additional Services"). Domo reserves the right, in its sole discretion and at any time, to amend the terms (including scheduling, suspension and termination), of Additional Services. Payment for Additional Services will be either by deduction from Sales Proceeds, by direct payment or invoice, or by any other means of payment indicated in  or agreed to by the Parties.

 

7. Confidential Information

A. The recipient of any Confidential Information will not disclose that Confidential Information, except to Affiliates, employees, and/or agents who need to know it and who have agreed in writing to keep it confidential. The recipient will ensure that those people and entities use Confidential Information only to exercise rights and fulfil obligations under the Agreement and keep the Confidential Information confidential. The recipient may also disclose Confidential Information when required by law after giving the discloser reasonable notice and the opportunity to seek confidential treatment, a protective order or similar remedies or relief prior to disclosure.

B. Save for any copy required to be kept by the recipient of the Confidential Information for legal or regulatory reasons, the recipient will, at any time upon request from the discloser or upon the end of any relationship between the Parties, at the discloser's option either: (i) return to the discloser all Confidential Information in its possession or control together with all information and documentation containing, comprising or relating in any way to the Confidential Information, and certify that all copies of the Confidential Information have been so returned; and/or (ii) destroy all Confidential Information in its possession or control together with all information and documentation containing, comprising or relating in any way to the Confidential Information, and certify that the Confidential Information has been destroyed.

C. The rights and obligations of the Parties under this Section will survive the termination of the Agreement.

 

8. Personal Data

A. Seller undertakes, represents and warrants that it will use and process Personal Data: i) only for the purpose of the execution of the Agreement or Customer Agreement and not disclose it to third parties; ii) in accordance with the requirements under the applicable personal data protection law; and iii) in a manner that ensures Domo remains in compliance with the requirement under the applicable personal data protection laws. Seller further warrants that it does implement sufficient security measures to ensure that the Personal Data are securely kept and maintained as required by the applicable personal data protection law and agrees to subject itself to the necessary audits undertaken by Domo to ensure compliance of the above warranties and to immediately inform Domo of any Personal Data incident it becomes aware of.

B. Seller agrees to indemnify and hold harmless Domo and each of its respective officers, employees, directors and agents from, and at Domo's option defend against, any and all liens, damages, losses, liabilities, obligations, penalties, claims, litigation, demands, defences, judgements, suits, proceedings, costs, disbursements or expenses of any kind or of any nature whatsoever (including third party claims, reasonable attorney’s fees, consultants’ fees, experts' fees and other costs of litigation) ("Personal Data Claims"), to the extent such Personal Data Claims arise from or may be in any way attributable to: i) any violation of the Agreement or the Customer Agreement by Seller; ii) the negligence, gross negligence, bad faith or intentional or wilful misconduct of Seller or its subcontractors (whether or not approved by Domo); or iii) any security incident for which Seller is directly or indirectly responsible.

 

9. Content Material, Industrial and Intellectual Property Rights

A. Seller represents and warrants to Domo that it is the owner or has lawful rights with respect to the use of Intellectual Property Rights concerning the Goods and the Content Materials and that it is not aware of any claims made by any third party with regard to any alleged or actual Intellectual Property Right infringement or other claim, demand or action resulting from the Content Material, advertising, publishing, promotion, manufacture, sale, distribution or use of the Goods.

B. Undertakings in relation to Content Materials: Seller undertakes, represents and warrants that:

1. the Content Materials are not prohibited and comply with the Laws (including all minimum age, marking and labelling requirements, product warranties, specifications and performance criteria, etc.) and conform with the Policies as posted on the Platform or Seller Centre;

2. it will provide accurate and up to date Content Materials. The Content Materials must include all text, disclaimers, warnings, notices, labels or other indications required by law to be displayed in connection with the offer, merchandising, advertising or sale of the Goods and may not contain any sexually explicit (except as expressly permitted in written by Domo or allowed under applicable Laws), defamatory or obscene materials;

3. it will not directly or indirectly include in the Content Materials, in the product listing of the Goods, or with the Goods or the Products, any terms and conditions of sale (or of provision of service) other than those agreed under the Agreement or any Seller or third-party marketing materials; and

4. it will not provide any Content Materials, or seek to list for sale on the Platform any Goods, or provide any uniform resource locator ("URL") marks unless it has the right to publish the Content Material;

 

C. Seller hereby grants Domo a royalty-free, non-exclusive, right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially and non-commercially exploit in any manner, any and all of the Content Materials, and to sublicense the foregoing rights to Domo Affiliates, provided that Domo will not alter any third-party trademarks.

D. Domo has no obligation to verify the accuracy, completeness, and legality of Content Materials.

E. Domo retains the right to determine the use and placement of Content Materials, and the structure, appearance, design, functionality and all other aspects of the Platform the Services, and, if any, the Sales Traffic Activities.

F. As between the Parties, each Party retains all right, title and interest in and to its technology and Intellectual Property Rights. Neither Party acquires any rights in the foregoing from the other Party except as expressly granted under the Agreement; all other rights are reserved, and no implied licenses are granted. Neither Party shall attempt to register any distinctive trademarks or domain names that are confusingly similar to those of the other Party.

G. Seller will not be entitled to use any intellectual property belonging to Domo without Domo’s prior approval in writing.

H. This Agreement will not be deemed or construed to create, convey or transfer any Intellectual Property Rights to Seller and, other than as instructed by Domo, Seller will not decompile any software or reverse engineer any software, or other product or process. This Agreement is not a license to use or distribute any software, or other product or process.

I. This Agreement confers to Seller no rights of ownership or title, license, or other Intellectual Property Rights in any tangible or intangible property, including software (e.g. the Platform the  and any API's or other software) and data (e.g. Sales data, performance data, Customer data,  data and  name) used, obtained or created under this Agreement. If such rights were nevertheless to have accrued to it for any reason whatsoever, Seller will assign, dispose or otherwise transfer (and effect the transfer of) the full and exclusive ownership of all such rights to Domo or any other party designated by Domo, free of charge, or for a nominal fee. Seller will use and process such software and data only for the purpose of the execution of the Agreement, will not claim any Intellectual Property Rights, sell, assign, license, publish, lease or otherwise commercially exploit such software and data, and will immediately cease their use and processing upon termination of the Agreement or if so required by Domo at any time.

J. Seller undertakes, represents and warrants that it will not, directly or indirectly, participate in any of the following actions such as reverse engineering, reverse compiling or otherwise deriving the underlying source code or structure or sequence of any Domo solution or technologies, deleting or altering author attributes or copyright notices, and/or fail to obtain all required permissions when using the Platform or  to receive, upload, display, distribute, or execute programs or perform other works protected by intellectual-property laws.

K. Nothing herein contained will be deemed to limit or restrict the rights of Domo or any third party to assert claims for violation of any Intellectual Property Rights against Seller.

 

10. Customer Information - Customer Services

A. Domo will be responsible for and have sole discretion to deal with Customers relating to Orders and Seller will not confirm Orders, deliveries or give any further information about the fulfilment of the Orders to the Customer.

B. Domo will own all information regarding Customers, Orders and the supply of the Services including payments, Fees, disbursements, refunds, Administrative Fees, Cancellation Penalties, adjustments, etc. and Domo will not be liable to pay any royalties or fees to Seller in connection with the use of any such information.

C. Seller will utilise information of Customers or the Platform’s users, including Personal Data, disclosed by Domo to Seller or which Seller has otherwise collected or obtained access to pursuant to or in connection with the Agreement, solely for purposes of the Agreement and will not sell, assign, license, publish, lease or otherwise commercially exploit any such information or utilize such information in any manner for its own benefits or carry out any data mining, data compilation or data extraction for the purposes of statistical or trade analysis or otherwise, based on or in connection with the aforesaid information. No Customer information and the Platform’s Users information will be disclosed by Seller to any third party without the prior written consent of Domo, and will only be disclosed within Seller’s organisation on a need-to-know basis.

 

11. Liability - Indemnification

A. The Platform the Services and the Additional Services are provided on an "as is" basis. Except as expressly provided for in the Agreement, Domo makes no other representations or warranties of any kind, express or implied, including: i) the implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement; ii) that the Platform , the Services or the Additional Services will meet Seller's requirements, will always be available, accessible, uninterrupted, timely, secure, or operate without error; iii) that the information, content, materials, or products included on the Platform or  will be as represented by Domo, available for sale on a timely manner, lawful to sell, or that Domo or the Customers will perform as promised; iv) any implied warranty arising from course of dealing or usage of trade; and v) any obligation, liability, right, claim, or remedy in tort, unless arising from acts of fraud, negligence or wilful misconduct by Domo. Seller acknowledges that any information and any materials provided by or through the Platform , the Services and the Additional Services may contain inaccuracies or errors and Domo expressly excludes liability for any such inaccuracies or errors to the fullest extent permitted by the Laws. Any link found on the Platform or is provided for Seller's convenience to provide further information. It does not signify that Domo endorses the contents thereof and Domo has no responsibility for the content of external links.

B. Because Domo is not involved in transactions between Seller and Customers, Seller hereby agrees on its behalf and on behalf of Customers to release Domo (and its agents and employees) from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected therewith, provided such release will not apply where actual claims, demands or damages arise due to Domo's fraud, negligence or wilful misconduct.

C. Any typographical clerical or other error or omission in any acceptance, invoice, Content Material or other document on the part of Domo shall be subject to correction without any liability for Domo.

D. Any claim of Seller under the Agreement must be notified to Domo within six (6) months from the Order date. For the avoidance of doubt, Domo will not be liable for any claim made by Seller after said deadline. Any claim of the Seller shall comply/follow the claims/dispute process/Policies of Domo, which may be changed from time to time.

E. Seller will defend, indemnify and hold harmless, and at Domo's option defend against, Domo and its Affiliates and their employees, directors, agents and representatives, from and against any and all liens, damages, losses, liabilities, obligations, penalties, fines, fees, Claims, litigation, demands, defences, judgements, suits, proceedings, costs, disbursements or expenses of any kind or of any nature whatsoever (including third party claims, reasonable attorney’s fees, consultants’ fees, experts' fees and other costs of litigation) arising out of, or related to: i) any actual or alleged breach of Seller's undertakings, representations, warranties, or obligations set forth in the Agreement or the Customer Agreement; ii) any incorrect, misleading, or erroneous information provided to Domo or any third party in connection with the Services or Additional Services; iii) any non-compliance by the Seller with any applicable laws or the Policies, including any losses in respect of carriage or prohibited goods incurred by Domo or its sub-contractors; or iv) Seller's own website or other sales channels, the Goods, the Products, any Content Materials, the advertisement, offer, sale or return of the Goods, the Products, any actual or alleged infringement of any Intellectual Property Rights by the Goods, the Products or the Content Materials, or seller taxes (duties, fees and other charges, etc.) or the collection, payment or failure to collect or pay seller taxes. If at any time Domo reasonably determines that any indemnified Claim might adversely affect Domo, Domo may take control of the defences at the expense of Seller. Seller may not consent to the entry of any judgment or enter into any settlement of a Claim against Domo without the prior consent by Domo in writing, which consent may not be unreasonably withheld.

F. Domo will not be held liable for any damages of any kind, including direct, indirect, incidental, punitive, and consequential, arising out of or in connection with the Agreement, the Customer Agreement, the Platform Seller Centre, the Services, the Additional Services, the inability to use the Services, the Additional Services, the Goods, the Products, or from messages received or transactions entered into, provided that Domo will compensate Seller for any direct damages : i) resulting exclusively, or primarily from Domo's fraud, gross negligence or wilful misconduct; and ii) as provided under the Domo Rights Section of the Terms.

G. To the fullest extent permitted by the Laws, and not withstanding any other provision of this Agreement, the total liability, in the aggregate, of Domo and Domo's Affiliates and their respective officers, directors, partners, employees and contractors, and any of them, to Seller and anyone claiming by or through Seller, for any and all claims, losses, costs or damages, including attorneys’ fees and costs and expert-witness fees and costs of any nature whatsoever or claims expenses resulting from or in any way related to the Agreement from any cause or causes shall not exceed the Fee that Domo is entitled to receive from Seller for the month preceding the date the liability arose, or Brunei Dollar five thousand (BND5,000.00) (or such equivalent amount in local currencies of the Territory), whichever is greater, provided that the maximum liability of Domo towards Seller will increase to: i) Brunei Dollar ten thousand (BND10,000.00) (or such equivalent amount in local currencies of the Territory) as regards liability under the Domo Rights Section of the Terms, and ii) such maximum liability as specified in the Fulfilment Section as regards liability under the Fulfilment Section of the Terms. It is intended that this limitation apply to any and all liability or cause of action however alleged or arising, unless otherwise prohibited by the Laws.

 

12. Termination

A. Domo has the right to unilaterally and immediately terminate the Agreement upon the occurrence of any of the following: i) Seller being in breach of any provision of the Agreement and failing to remedy the same within seven(7) days from being so notified; ii) the Seller being in breach of any applicable laws or Domo’s Policies with respect to Goods and sales of Goods ii) Seller passing a winding up resolution or a court of competent jurisdiction making an order for the same; iii) the issuance of an administrative order in relation to Seller, or the appointment of a receiver over, or an encumbrance taking possession of, or the of selling any of, Seller’s assets; iv) Seller making an arrangement or composition with its creditors generally or applying to a court of competent jurisdiction for protection from its creditors; v) Seller ceasing or threatening to cease to carry on business; or vi) Seller breaching any of its warranties under this Agreement, in particular any of its undertakings per Clause 4 of this Agreement.

B. Provided they have not been corrected by Domo within fourteen (14) days from notifying Domo of the occurrence of any of the following, Seller has the right to immediately terminate the Agreement: i) Domo delaying payment for more than thirty (30) days without reason; ii) Domo delaying returns for more than sixty (60) days without valid reason; iii) the making of an administration order in relation to Domo or the appointment of a receiver over Domo’s assets; iv) the making of an arrangement or composition by Domo with its creditors generally or applying to a court of competent jurisdiction for protection from its creditors; or v) Domo ceasing or threatening to cease to carry on business.

C. Either Party may unilaterally terminate the Agreement without cause by providing fourteen (14) days’ prior written notice to the other Party.

D. Upon termination of the Agreement, Seller will notify Domo of all concluded Customer Agreements which have yet to be performed. For the avoidance of doubt, notwithstanding any termination for any reason, Seller will remain responsible for the fulfilment of any pending Order in according to the Fulfilment Model and Domo will fulfil any pending Payment obligations. Any provision of the Agreement that, by its nature, is meant to survive the term or termination.

 

13. Miscellaneous

A. The Agreement will prevail over any other agreement, terms or conditions regarding the subject matter, pre-contractual negotiations, and to the exclusion of all other terms submitted, proposed or stipulated by either Party (including any terms or conditions which Seller purports to apply under any purchase order, confirmation order, specification, invoice or other document) and no terms or conditions endorsed upon, delivered with or contained in any other document or with the Goods or Products, will form part of the Agreement. The actual or future invalidity or ineffectiveness of any provision hereof will not affect the validity or effectiveness of the whole document. The Agreement will apply to the relationship between the Parties in addition to any specific terms agreed to herein. In the event of any conflict or inconsistency between any provision of the Terms, Special Conditions, any Schedules or the Annexes, the provisions of each of the Terms, Special Conditions, Schedules and Annexes will prevail in that order.

B. The singular includes the plural and vice versa, as the context may require. The headings are inserted for convenience only and will be ignored when construing this Agreement. The term “including” or "include" shall mean “including, without limitation”, unless the context otherwise requires.

C. Unless otherwise provided in this Agreement or agreed to between the Parties, all notices, requests, demands and other communications hereunder must be in writing and will be deemed to have been fully given and received when sent with receipt received by recognized overnight delivery service, registered mail or email one (1) Working Day after being deposited for next-day delivery with a recognized overnight delivery service or emailed, or three (3) Working Days after being mailed by registered mail, charges and postage prepaid, to the Party to receive such notice at such Party’s address set forth herein or any other address that such Party may specify by notice to the other Party.

D. Seller cannot assign, transfer or subcontract all or part of its rights and/or obligations deriving from the Agreement, without the prior written consent of Domo. Domo may assign, transfer or subcontract all or part of its rights and/or obligations deriving from the Agreement.

E. Seller and Domo are independent contractors, and nothing in the Agreement will create any partnership, joint venture, agency, franchise, sales representative relationship or exclusivity between the Parties. The Agreement will not cause the establishment of any relationship of employment between the Parties or with any person who provides services to either. Seller will have no authority to make or accept any offers or representations on behalf of Domo.

F. The Agreement and all of the representations, warranties, covenants, conditions, and provisions hereof are intended to be and are for the sole and exclusive benefit of Domo and Seller. Other than as regards the rights of Customers against Seller, nothing in the Agreement will be construed as giving any third party any rights whatsoever.

G. Notwithstanding any other provision in the Agreement to the contrary, nothing contained herein will oblige Domo or Seller to engage in any action or omission to act which would be prohibited by or penalized under the Laws or of any other country.

H. The failure of a Party to exercise its rights in case of breach of contract by the other Party will not be considered as a waiver of its rights under the Terms or under the Laws.

I. No Party will be liable to the other or be deemed to be in breach of the Agreement by reason of any delay or failure to perform any of its obligations due to an event of Force Majeure. Upon the occurrence of any event of Force Majeure, Domo may, at its option, fully or partially suspend delivery/performance of its obligations hereunder while such event or circumstance continues. If any of the events of Force Majeure will continue for a period exceeding one (1) month, Domo may notify Seller that it will terminate the Agreement.

J. No variation (including amendments or crossed-out provisions) of these Terms will be valid unless: a) expressly agreed to in writing and signed by authorized representative of Domo; or b) notified to Seller as provided in the Preamble Section of these Terms.

K. All stamp duty and registration fees (if any) in respect of the Agreement will be fully borne and paid by Seller.

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