ANNEX 2 DISPUTE RESOLUTION
Save as provided in the Terms, any difference, controversy, or claim, arising between the Parties will be settled by arbitration, in English, in Brunei, and in accordance with the rules of the Brunei Darussalam Arbitration Centre (BDAC) Bhd. Furthermore, the arbitral tribunal will consist of a sole arbitrator, to be designated by the Registrar of the BDAC. Any award by the arbitration tribunal will be final and binding upon the Parties. The arbitrator will award to the prevailing Party, if any, the costs and attorneys’ fees reasonably incurred by such Party in connection with the arbitration. If the arbitrator determines a Party to be the prevailing Party under circumstances where the prevailing Party won on some but not all of the claims and counterclaims, the arbitrator may award the prevailing Party an appropriate percentage of the costs and attorneys’ fees reasonably incurred by the prevailing Party in connection with the arbitration.
Notwithstanding the foregoing, in the event either Party believes that it may suffer irreparable harm prior to the resolution of any conflict by following the arbitration procedures established herein, such Party may apply to a court of competent jurisdiction for a restraining order or other equitable relief in order to prevent or alleviate such harm pending the arbitration. The Parties agree that this paragraph shall not operate as a request that the court abstain from accepting jurisdiction or from granting appropriate orders which the court may deem necessary or appropriate to protect the interests of the Parties.
ANNEX 3 FULFILLMENT
Orders for physical products are fulfilled under the following Fulfilment Models:
(a) Seller Own Fleet: Where Seller is responsible for the delivery of Products to Customers using its own logistics services;
(b) Drop-Shipping: where Seller is responsible for delivering of Products to Domo’s designated location or appointed third party logistics provider, for Domo to coordinate delivery to Customers;
(c) Fulfilment By Domo: where Seller is responsible for delivering the Goods to the location designated by Domo, for Domo to co-ordinate their storage, re-packaging (if necessary) and delivery to Customers.
2. General terms for Logistics Services
A. Domo will provide the Logistics Services to the Seller, in accordance with the Policies.
B. The Seller shall request for and use the Logistics Services in accordance with the Policies, in particular:
(d) The Seller shall include all information and supporting documents required by law Domo, or as set out in the Policies, including tax invoices for the Products, or, if required by Domo or by law, to send such information and/or supporting documents to the Customer directly;
(e) All Goods and Products shall be properly packed in a proper packaging with robust material protect the Products for Delivery or with other proper packaging for Delivery in accordance with property, weight and volume of the Products to prevent any damage to the Products, in no less standard than Domo's packaging polices as provided from time to time. Domo's may request repackaging before accepting the Products, if Domo determines that the original packaging is not suitable for Delivery and that it may cause damage to the Product/s or other Products or necessary to maintain the cleanliness, security and safety of all Products.
(f) The Seller shall not use the Logistics Services in respect of any prohibited or dangerous goods, as set out in the Policies; and
(g) The Seller shall not include any advertising or other materials in the Goods or Products, unless included by the manufacturer , or permitted by the Policies.
C. The responsibility of Domo and Seller in relation to packaging, handling, deliveries, returns, warranties and Orders will be in accordance with the chosen Fulfilment Model.
D. Domo reserves the right, in its sole discretion, to use any method or route to perform the Logistics Services, including to sub-contract all or part of the Logistics Services, and to use any sub-contractor which Domo deems appropriate.
E. Unless otherwise provided in the Agreement, Seller will be responsible for all costs incurred for shipping the Goods or Products. Any costs assessed against or incurred by Domo in relation to shipping will be debited to Seller. Seller will also be responsible for payment of all customs duties, and taxes and any other charges related to the shipping and custom clearance of Goods and Products.
F. Domo will not be listed on any import documentation relating to Goods and Products and Domo reserves the right to refuse to accept Goods or Products, and to cancel Orders, where it is listed on the import documentation, and any costs, penalties, taxes or duties assessed against or incurred by Domo will be charged to Seller.
G. Domo reserves the right to restrict the destinations to which Seller may ship Goods and Products. Domo has no obligation to provide the Logistics Services to collect or deliver Goods or Products to or from any PO Box, overseas address, addresses without proper postal codes, or any non-delivery locations set out in the Policies.
H. Seller must comply with the standard operating procedures, import procedures, weight restrictions, size restrictions and other shipping requirements.
I. Estimated shipping costs, if any, provided prior to shipment are not binding and Seller agrees that it will be liable for: i) for the actual shipping costs; or ii) the estimated shipping costs, even if the carrier determines them to be lower than the estimate submitted to Seller.
J. Except as expressly provided by these Terms, at no point in time will title to Goods or Products pass to Domo or its sub-contractors (if any). Domo or its sub-contractors shall not be or deemed to be the merchant on record of the Goods or Products.
K. Risk of loss or damage to the Goods or Products shall remain with the Seller unless risk is transferred in accordance with these Terms.
L. Domo may, in its sole discretion or at the direction of any government or law enforcement authority, at any time and without notice, open and inspect any Good or Product.
M. Domo may, in its sole discretion, reject or re-package (at the Seller’s expense) any Goods or Products for the provision of the Logistics Services, and return such Goods or Products.
N. Seller shall inform Domo within 24 hours, or such other timing set out in the Policies, if any Goods or Products which are the subject of the Logistics Services are perishable, frozen, refrigerated, or temperature controlled, or require any form of special handling. Domo may choose to provide Logistics Services in respect of such Goods or Products at its sole discretion and subject to any additional fees and expenses agreed between the Parties for such Logistics Services.
O. Service Fees in respect of the Logistics Services completed by each reconciliation cut-off date shall be deducted from any Sales Proceeds of the Seller prior to Payment of such Service Fees in accordance with this Agreement.
P. Domo shall, subject to any applicable law, have a lien on any Goods or Products in Domo’s possession for any Service Fees due and owing to Domo from the Seller.
Q. The total liability of Domo to the Seller if there is any loss or damage to Goods or Products which are the subject of the Logistics Services and where Domo is responsible for the risk shall be limited to the lower of:
(h) BND$100 (or such amount set out in the policies or Schedule A) per parcel (regardless of the number of Goods or Products in such parcel); or
(i) The replacement value of such Goods or Products,
Provided that, if the loss or damage is caused by the Seller’s instructions, the Seller failing to comply with the terms of this Agreement or the Policies, or related to the decay of perishable Goods, or otherwise directly or indirectly caused by Seller, its agents or contractors, Domo shall not be liable for any such loss or damage.
R. The Seller shall indemnify Domo and its Affiliates for any losses, penalties, fees, liabilities, and expenses arising out the Seller’s non-compliance with any applicable laws or the Policies.
S. Domo may, in its sole discretion, allow Seller to ship Goods at Seller’s expense using discounted shipping rates that Domo is able to procure from any carrier. Seller will not use the carrier account information of Domo, including, without limitation, carrier account number and shipping rates, for any purpose other than for the fulfilment of an Order, nor disclose such information to any third party, and Seller will protect such information as Confidential Information.
3. Seller Own Fleet
A. Seller will prepare and ship the Order to the address specified in the Order within the lead times set out in the Policies, provided that, where the Seller fails to comply with the deadline, Domo reserves the right to modify the deadline and/or to cancel the Order.
B. Seller shall stop or cancel any Orders if directed by Domo.
C. Seller will ensure that Domo is at all times supplied with updated Order shipment tracking information.
D. Title and risk of loss for Goods and Products will remain with Seller, and Domo will have no liability whatsoever related to the Goods and Products
including their shipping, storage, delivery delays, damage or loss.
E. Seller shall be responsible for obtaining appropriate insurance covering any damage or loss to the Goods.
A. Seller will prepare and ship the Order to Domo’s designated location (including any applicable drop-off boxes offered by Domo or to Domo’s appointed third party logistics provider) within twenty-four (24) hours from the Order being placed (taking into account Working Days) or according to the lead times specified in the Policies, provided that, where Seller fails to comply with the deadline, Domo reserves the right to modify the deadline and/or to cancel the Order.
B. Domo may, at its sole discretion, offer to pick up Products from mutually agreed pick up points, in accordance with the Policies.
C. Seller shall stop or cancel any Orders if directed by Domo.
D. Seller will ensure that Domo is at all times supplied with updated Order shipment tracking information.
E. Title and risk of loss for Goods and Products will remain with Seller, and Domo will have no liability whatsoever related to the Goods and Products including their shipping, storage, delivery delays, damage or loss.
F. Upon receiving Products that are the subject of an Order, Domo will deliver the Products to the delivery address and designated recipient, in accordance with the Policies.
Annex 4: RETURNS
1. Returns - Failed Deliveries - Inadequate Products
A. Seller will accept the return of Failed Deliveries and Returned Products in accordance with the Policies. Domo has the right to determine at its sole discretion whether a Customer will receive a refund, adjustment, or replacement, and to require Seller to reimburse Domo if Domo determines that Seller is liable to do so in accordance with the Agreement. Where Domo has refunded or paid any such aforementioned amount (whether on behalf of Seller or otherwise), such amount will be recoverable by Domo from Seller as a debt due from Seller and Domo will be entitled to deduct such amount from amounts payable to Seller, or by other methods at Domo's election.
B. Seller will promptly notify Domo of any Inadequate Product (or the threat of a public or private recall) and cooperate and assist Domo with returns, including by initiating the procedures for returning Goods or Products to Seller.
C. Domo will refund Seller the Commission related to any Failed Delivery or Order returned for Customer convenience.
D. In case of Failed Delivery, Domo will bear: i) the Payment Fee, and ii) unless the shipping has been arranged by Seller, the Shipping Cost for the shipment of the Product to the Customer and back to Seller, all other costs being borne by Seller.
E. In case of an Inadequate Product, Seller will bear all costs associated with the return and refund or replacement, including the Payment Fee, and unless the shipping has been arranged by Seller, the Shipping Cost for the shipment of the Product to the Customer, from the Customer to Domo and from Domo back to Seller, Seller will also be debited for any additional Storage Fee and Handling Fee.
F. Domo has no obligation to accept any Returned Product. Domo however may at its sole discretion request that the Product be returned to a designated location for further quality inspection. If Domo, directly or through a third party of its choice, determines during the quality inspection that the Returned Product is faulty or damaged, that it cannot be offered to other Customers because of this fault or damage and that this fault or damage has been caused by the Customer, Seller will not be liable to accept the Returned Product.
G. Unless Domo agrees to accept Returned Products at its designated location, subject to paragraph H below, Domo will organize the delivery of such Products to the address indicated by Seller within forty-five (45) days from the Fulfilled Customer Agreement date. If the parcel failed to be delivered to Seller at its designated location or not collected at collection point by the Seller within the stipulated duration, Domo reserves the right to dispose the Product.
H. Domo reserves the right to examine and determine at its own discretion if returned Goods are saleable despite having been returned and if so, Domo may return such Returned Products to Seller or place such Returned Products back in the inventory of Seller.
I. Subject to the Policies, Domo is not obliged to return any Products to the Seller if such return would not be reasonably practicable (including if the value of Products is disproportionately low relative to the cost of returning Products).
J. If (i) Domo is unable to return the Products to Seller despite taking reasonable efforts in accordance with the Policies (for example, if Seller refuses to pick-up the returned Products; or if Seller’s delivery address is incorrect) or (ii) Domo reasonably determines that it is not reasonably practicable to return the Product to Seller pursuant to Paragraph J above, Domo may, at its sole discretion, release, dispose of or sell the Products in any manner it sees fit, without any liability or payment obligations to the Seller. The Seller agrees that title to all Products will be passed to Domo prior to any release, disposal, or sale of the Products by Domo.
K. Domo will not be responsible for any risk or liable for any claims, demands, liabilities, expenses, losses, cost or damage in connection with any Failed Delivery and Returned Products (including due to a threatened recall) and will claim all costs incurred in that respect from Seller.