Version date: 1 June 2023

MARKATO HK LIMITED

TERMS OF SERVICE FOR RETAILERS ("Retailer Terms")

1. Overview

1. Welcome to Markato!
2. Thank you for your interest in becoming a retailer 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”).
3. Throughout these Retailer 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 "Retailer", "user", “you” and/or “your” shall refer to you as a user of the Services as a Retailer.
4. 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.
5. 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).
6. 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.

2. TERMS OF ACCEPTANCE

1. These Retailer Terms, along with:

1. any Retailer Addendum that we have agreed with you (if any); and
2. our Privacy Policy

(together, the "Terms of Service"), shall govern your acquisition of products as a Retailer through the Services, and the terms on which we shall make the Services available to you. To the extent of any inconsistency between the components of the Terms of Service, such inconsistency shall be resolved in the following order of priority: Retailer Addendum, Privacy Policy, Retailer Terms.

2. We recommend that you carefully review the Terms of Service prior to submitting an application for a Retailer Account (defined below). If you have any questions about any of the Terms of Service please contact [email protected] 
3. By registering to become a user of the Services as a Retailer, or using the Services:

1. you acknowledge and agree that you have read, understood and accepted the Terms of Service, including the Retailer Terms and our [Privacy Policy]; and
2. 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.

4. 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.
5. 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 Retailer 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.
6. Capitalized terms used herein are defined in Paragraph 26, below.

3. Account Registration – Retailer Account

1. Retailer Account

1. To acquire products through the Services as a Retailer, you must submit an application to become a retailer and be approved by Markato for an account (“Retailer Account”).
2. When registering your Retailer 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 appropriate licenses and registrations applicable to your acquisition of Products (where applicable)).
3. 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 Retailer 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).
4. You represent and warrant that any and all Retailer 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.
5. You acknowledge that your access to the Services may be altered as a result of the Retailer Information that you provide to us.
6. If any (or we suspect that any) of the Retailer Information is not complete, accurate, or up-to-date, or is misleading, in any respect, or you fail to provide updates to any Retailer 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 Retailer Account at our discretion.
7. You acknowledge that we may use your Retailer Information for one or more of the following purposes, and authorise us to do so:

1. exercising our rights or performing our obligations under the Terms of Service;

2. 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 Retailer Information to such Intermediary Service Providers);

3. complying with the requirements of any Intermediary Service Provider, credit reference and fraud prevention or financial crime agencies, Regulatory Authorities or applicable laws, including:

1. making enquiries, directly or through third parties, that we consider necessary to verify your identity or the information that you have provided; and
2. 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;

4. assessing financial, information security, sector, credit and insurance risks;

5. assessing any breach of or enforcing the Terms of Service;

6. recovering any debt that arises in relation to a party's insolvency;

7. maintaining, testing and developing customer relationships, services and systems; and

8. analysing your personal information and/or usage of the Services (in anonymised and aggregated format) for the purposes of developing and improving the Services.

8. You acknowledge  and agree that we may disclose your Retailer Information to our Representatives, our Affiliates and their Representatives, Intermediary Service Providers, credit reference and fraud prevention or financial crime agencies, Regulatory Authorities, and other third parties, in each case for the purpose of  providing the Services (or exercising our rights or performing our obligations under these Retailer Terms), including for the purposes set out in Paragraph 3.1.7. In each case we shall, and shall use our  reasonable endeavours to procure that each other person to whom we disclose your Retailer Information shall, treat your Retailer Information as strictly confidential and not use or disclose your Retailer Information other than for the purpose of providing the Services (or exercising our rights or performing our obligations under these Retailer Terms, or complying with the requirements of any Intermediary Service Provider, credit reference and fraud prevention or financial crime  agencies, Regulatory Authorities or applicable laws). Any such disclosures shall remain subject to the terms of our Privacy Policy.
9. We reserve the right to maintain your Retailer Account registration information after you close your Retailer Account for business and regulatory compliance purposes, subject to applicable laws.
10. Markato will use good faith efforts to review your application to become a Retailer as soon as possible. You acknowledge that Markato is only able to accept a limited number of Retailers at any given time, and that Markato is not obligated to accept you as a Retailer. You hereby release Markato from any liability regarding the acceptance process.
11. We reserve the right to suspend or close your Retailer Account (or remove or block your acquisition 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.
12. You may close your Retailer Account at any time using the functionality made available via the Services.

2. Eligibility

3. In order to be eligible to open a Retailer Account or use the Services you must meet (and you represent and warrant that you do meet), the following eligibility criteria:

1. If you are an individual, you must be at least 18 years of age, have the capacity to accept the Retailer 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.
2. If you are registering to use the Services on behalf of a legal entity then:

1. you must be duly authorised by such legal entity to act on its behalf for the purpose of entering into the Retailer Terms;
2. the legal entity must be duly organised and validly existing under the laws of the jurisdiction of its organisation; and
3. 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.

3. You will not be using the Services for any illegal activity.

4. 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 Retailer Account at our discretion, without notice and without liability.

5. Your Retailer Account: security of user information

1. You may access your Retailer 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 Retailer 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 Retailer Account (and the Services).
2. 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 Retailer Account profile.
3. You are only permitted to access your Retailer Account using your own User Credentials and Security Passwords. You must ensure that your Retailer 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 Retailer Account.
4. 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 Retailer 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 Retailer Account or your User information.
5. Markato reserves the right to suspend your ability to use the Services or close your Retailer Account if we suspect that the person logged into your Retailer 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.
6. In order to access your Retailer 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.

6. Services

1. 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 Retailer Account or the other contact details that you have provided to us, but shall have no obligation to do so.
2. 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 Retailer 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.

4. Orders

1. Acceptance

1. Upon the creation of your Retailer Account, you will be able to submit orders for Brand Products.
2. By obtaining a Retailer Account and using the Services, you agree that Brands may accept orders from you for the purchase of the products made available via the Services (each a “Product”) and that such acceptance will result in the conclusion of a contract (each an “Order”) for the sale of the relevant Product to you in accordance with these Retailer Terms and any applicable Brand Terms and Conditions.

2. Order Minimums (Quantity and Value)

1. Brands may set minimum order quantities for their Products (i.e. the minimum quantity of Product that a Retailer must order in each Order), which will be displayed on the Brand Page ("Minimum Order Quantity").
2. Brands may set minimum order values for their Products (i.e. the minimum value of Product that a Retailer must order in each Order), which will be displayed on the 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 Products which is less than Markato's Minimum Order Value (even where the order value is more than a Brand's Minimum Order Value).

3. Right to Refuse

You acknowledge and agree that Brands may refuse to complete your purchase (either at the  time of submission of,  or following the submission of, an Order) and Markato may cancel a purchase (i.e. the relevant Order) for any reason.

4. Inventory

Markato will encourage Brands to have sufficient inventory to sell goods to Retailers. However, you acknowledge and agree that Markato does not guarantee a Brand's inventory or that there will be enough product to sell to you.

5. Samples

Brands may, from time to time, include samples in orders that are shipped to you. Any samples that you receive are made available on an“as is” basis, and are non- returnable and non-refundable. Markato will not be responsible for, and disclaimers any and all liability incurred by you in relation to, any samples that you receive from a Brand.

6. No Circumvention

1. You acknowledge and agree that you will place all orders for a Brand's product through the Services for any Brand that you are first introduced to through the Services.
2. You further agree to not influence Brands to, or otherwise circumvent Markato’s process, to transact offline outside of the Services in any manner.
3. You agree to not fulfil orders for Products on third party websites unless they are approved by Markato.
4. Failure to comply with this provision may result in temporary suspension or permanent termination of your Retailer Account and your ability to purchase products on Markato in the future.

7. Shipping Address and Drop Shipping

You agree to provide a valid, physical address to receive any product that you order through the Services. Markato does not offer drop shipping to customers of Retailers. Retailers are also not allowed to forward purchased products to overseas locations, whether through mail forwarding services or otherwise.

8. Fraudulent Activity and Monitoring

1. You acknowledge and agree that Markato shall be permitted to monitor transactions, activities and behaviours associated with your Retailer Account, including the volume any type of Orders entered into via your Retailer Account and the incidents of fraud (or attempted fraud), and disclose such information (and any other data, metrics or Retailer Information collected in connection with your Retailer 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.
2. 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 Retailer Account.
3. If you suspect that any Order 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 Retailer, immediately cease to submit such Order.
4. If Markato has reason to suspect that any transactions, activities or behaviours associated with your Retailer Account, including any Orders entered into via your Retailer Account 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 Retailer Account (or remove or block your acquisition of one or more Products), without notice and without liability.

9. Taxes

1. To the extent of transactions entered into by you with Brands via the Services, Markato will calculate the tax (generally, VAT or GST) payable, if applicable, and include this on the order invoice issued for or on behalf of the Brand.
2. You acknowledge that you are liable and required to pay to the Brand any taxes so calculated and agree to assume liability for payment for the full amount of the order invoice including any taxes calculated by Markato on behalf of the Brands. You hereby release Markato with respect thereto, and agree to indemnify, defend and hold Markato harmless against any and all such (withholding or other) taxes, contributions, penalties and/or interest.

5. Product and Content Compliance

1. Markato reserves the right to accept or reject any Products.
2. You acknowledge and agree that Brands are prohibited from selling or offering for sale (and that you will not procure or solicit the acquisition of), via the Services, any of the following products or services:

1. Drugs, Drug Proprietaries, Druggist Sundries
2. Drug Stores, Pharmacies
3. Direct Marketing – Travel-Related Arrangement Services
4. Direct Marketing – Outbound Telemarketing Merchants
5. Direct Marketing – Inbound Telemarketing Merchants
6. Cigar Stores and Stands
7. Dating and Escort Services
8. Betting, including Lottery Tickets, Casino Gaming Chips, Off-Track Betting, and Wagers at Race Tracks
9. Computer Network/Information Services, for the sale of access to cyberlockers or remote digital file-sharing services
10. Digital Goods – Games, for Transactions involving skilled game wagering (for example: daily fantasy sports)
11. 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.

3. You acknowledge and agree that Markato is not required to determine whether the products sold on the Services, or any Content related thereto:

1. abide by Markato’s Product Guidelines and/or are not prohibited under Markato’s Product Guidelines;
2. comply with all laws, rules and regulations, including but not limited to, safety, labelling, testing, warning, import/export, and/or other consumer protection law requirements;
3. do not infringe upon the intellectual property rights, publicity or other rights of others;
4. do not contain false, inaccurate or misleading information;
5. possess or comply with necessary rights, licenses, permissions and consents for the offering of sale or sale of such Products through the Services;
6. are allowed to be sold from the Brand’s jurisdiction and/or into your jurisdiction; and/or
7. are allowed to be sold by you from your jurisdiction into your customer’s jurisdiction.

4. You agree to conduct the necessary due diligence for compliance and suitability of Brands and their products and accept the legal implications of purchasing products sold on the Services, including but not limited to tax and duties, licensing and any customs formalities, duties or tariffs associated with international purchases.
5. You hereby release Markato from any liability with respect thereto, and agree to indemnify, defend and hold harmless Markato (and each other Indemnified Party) for any claims as set forth in the indemnification section below.

6. Content License, Representations and Warranties

1. License from Markato

2. Limited License

1. Markato displays various Content related to the products, including photographs, product descriptions, Brand stories and any other related content for sale on its Services. You are granted a limited, royalty-free, non-assignable, non- sublicensable and revocable license to use Content related to a product that you purchase on the Services on your own company’s website for the sole purpose of reselling that same product. Notwithstanding the foregoing, you agree that you will not use any such Content in any ad or media campaign, including postings, emails, ads or any other communication, without the express written consent from the owner of that Content.
2. You acknowledge and agree that you are merely a licensee of the Content and that you do not own, and will not claim any ownership rights in, the Content. You further acknowledge and agree that Markato is not responsible, nor shall Markato be held liable, for any Content, and Markato makes no representation or warranty that the Content does not infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy, or contain libellous or otherwise unlawful, abusive, harassing or obscene material, or result in the violation of any applicable law or regulation.

3. License from Retailer

1. 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 Retailer Materials") in connection with your Retailer Account, in each case for the purposes of providing you with the Services.
2. Markato does not claim any ownership rights in any of Your Retailer Materials and nothing in these Retailer Terms will be deemed to restrict any rights that you may have to use and exploit Your Retailer Materials.
3. You hereby agree that Markato may, at its option, grant a limited, royalty-free, revocable sublicense 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).

4. Representations and Warranties

1. You acknowledge and agree that you are solely responsible for Your Retailer Materials that you make available to us. Accordingly, you represent and warrant that:

1. you are either the sole and exclusive owner of Your Retailer 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 Retailer Materials as contemplated under these Retailer Terms;
2. neither Your Retailer Materials nor your posting, uploading, publication, submission or transmittal of Your Retailer Materials or the use by Markato or any of its permitted sub-licensees of Your Retailer 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
3. 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 Retailer 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 Retailer 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.

5. Feedback

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.

7. Payment

1. Payment Methods

1. You may purchase Products via the Services using the approved payment methods made available to you via the Services in the relevant territory. These payment methods may include:(i) a credit or debit card; (ii) a bank transfer; or (iii) such other methods as are made available to you via the Services.. In order to use a particular payment method you must provide the payment information requested via the Services. Approved payment methods may vary by region.
2. By submitting payment details, in conjunction with registering for a Retailer Account and/or purchasing goods, you agree to pay for the goods purchased, and any applicable taxes and other fees that may accrue in relation to the purchase of such goods, and you authorize each relevant Brand, Markato, each of their respective affiliates and any payment processor for any of them to charge the payment method with any payment due from you using the information you have supplied to Markato, and/or (where applicable) to credit that payment method and/or to make any adjustments if necessary.
3. Markato reserves the right to correct any errors in pricing.
4. If you elect to settle the amounts that you owe in respect of an order on a Buy Now Pay Later basis, then we may require you to provide us with details of a “default payment method”.The default payment method on file in your Retailer Account shall be charged for amounts due from you for your outstanding Buy Now Pay Later amount. If this fails, any other payment method you have included in your Retailer Account may be charged.

2. Payment Processors

1. You acknowledge that from time to time Markato may enter into arrangements with one or more payment processors for the purpose of facilitating payments of the Purchase Price in respect of the Orders ("Payment Processor Arrangement").
2. 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 of the Purchase Price 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 of the Purchase Price in respect of the Orders).
3. As at the date of these Retailer Terms, Markato has entered into an arrangement with the payment processor [Airwallex] (the “Airwallex”) to enable Airwallex to facilitate payments of the Purchase Price in respect of your Orders ("Airwallex Payment Processor Arrangement").
4. Airwallex will facilitate payments for Orders by acting on the behalf of Brands in relation to the acquiring and collection of payments of the Purchase Price from Retailers and the making of applicable payments to Brands. [For this purpose, you are required to enter into and comply with certain terms of Airwallex (the “Airwallex Terms”), and by accepting these Retailer Terms you agree to be bound by the Airwallex Terms. The Airwallex Terms can be found here:

1. https://www.airwallex.com/hk/terms/payout-and-fx;
2. https://www.airwallex.com/hk/terms/merchant-scale-terms; and
3. 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 7 and the Airwallex Terms, the Airwallex Terms shall prevail.

5. 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 terminates 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.
6. You acknowledge that, for the duration of the Airwallex Payment Processor Arrangement:

1. no payment services that are regulated under Applicable Laws are provided by Markato and that all such payment services are provided by Airwallex;

2. Markato is designated as each Brand's authorised representative for the purposes of giving instructions to Airwallex, on behalf of each Brand, in relation to the collection of the Purchase Price of each Order from the Retailer and the payment of amounts due to the Brand in respect of  each Order to each Brand (including in relation to advising the Airwallex of the amount and timing of to apply to each such payment);

3. 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);

4. Markato shall be entitled to instruct Airwallex to pay to Markato the amount of any fees or commissions payable by Brands to Markato by way of deduction from any amount at any time being held by Airwallex for a Brand; and

5. 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.

7. Without limit to the other consents and authorisations provided in these Retailer Terms, you authorise Markato to:

1. perform the Services; and

2. provide Settlement Data to Airwallex for the allocation by Airwallex of funds received from Acquirers to the Global Accounts of you (and other Retailers) in accordance with such Settlement Data.

3. Conclusion of Order Contracts

1. In relation to the conclusion through the Markato platform of any contract for the purchase of goods by you from a Brand (a “Contract”), Markato is appointed and authorised by the Brand to process such orders and provide certain services on Brand’s behalf.
2. Accordingly, where payment of any amount payable by you to a Brand in respect of any Contract with that Brand is made to Markato, this shall discharge your obligation to the Brand to the extent of the amount so paid. Markato does not act as agent for you in relation to the negotiation or conclusion of, or any payment made under, any Contract.

4. Payment timings / Buy Now Pay Later Timing

1. In respect of payments by you to Brands in respect of Contracts, Markato is granted a discretion by the Brands to determine which of two payment timings shall be available to you in respect of the purchase price under such Contracts (the “Purchase Price”), these being:

1. Payment on Order check-out confirmation: the Retailer is obliged to make payment of the Purchase Price at the time at which they place the Order via the Services (the “Check-out confirmation Date”); or
2. 60-day terms (also known as 60-day Buy Now Pay Later 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 ("Buy Now Pay Later").

2. In determining whether to make Buy Now Pay Later payment timing available to you in respect of any Contract, Markato will consider your credit standing and the aggregate amount outstanding from you in respect of all other Contracts under which payment has not yet been made in full (the “Outstanding Credit Amount”).
3. Markato may in its discretion set a credit limit (the “Credit Limit”) which shall apply to all your Contracts such that, although you will generally be approved by Markato for the provision of Buy Now Pay Later payment  timing, if the extension of such Buy Now Pay Later payment timing to any new Contract will cause the Outstanding Credit Amount to exceed such Credit Limit, payment on Check-out confirmation Date shall be applied to that Contract. However, you shall have the option to avoid this consequence by logging onto your Retailer Account and paying down amounts outstanding under other Contracts to reduce the Outstanding Credit Amount by the requisite amount. Markato reserves the right to change any Credit Limit from time to time in its entire discretion and you may request an increase to your Credit Limit through your Retailer Account.
4. Markato may also apply a maximum Contract purchase price size for Contracts to which Buy Now Pay Later payment timing may be applied. You agree that you will not create multiple accounts in an attempt to circumvent spending limits.
5. Markato shall arrange for you to be provided with an invoice for the amounts payable in respect of an Order (including the Purchase Price and Shipping Costs).

5. Failure to Make Payment

1. You acknowledge and agree that if you fail to make payment when due of any part of the Outstanding Credit Amount or any other amount owing under these Terms, Markato may:

1. on behalf of the parties to whom the Outstanding Credit Amount is then owed, give notice making the whole of the Outstanding Credit Amount and any other amount payable by you under these Terms due and payable immediately (if not so already);
2. on behalf of the relevant Brands, cancel or suspend any Contracts;
3. temporarily suspend or permanently terminate your Retailer Account;
4. reduce any Credit Limit to zero;
5. apply any amount in Markato’s possession or control which is owed to you toward reduction of the Outstanding Credit Amount; and/or
6. assess an additional fee in respect of collection and related services which shall be calculated by applying interest        on any amount outstanding from you at the rate of 8% per annum from the due date of such amount to its date of payment.

2. Markato reserves the right in these circumstances, acting on behalf of the relevant creditor, to turn over the collection of any amount due from you to a collection agency or seek any other legal or equitable remedies available to collect any outstanding debt.

6. Indemnity to Markato

1. You acknowledge that, if you fail to make payment when due of any part of the Outstanding Credit Amount or other amount owing under these Terms, Markato may, as a matter of good platform management, make payment of the amount due to the relevant creditor (the “Discharged Creditor”). You acknowledge and agree that to the extent that Markato does this, you shall be liable to Markato in the same amount and to the same extent as you were liable to the Discharged Creditor and you shall indemnify Markato (and each other Indemnified Party) against any costs, detriment, damage or losses which it suffers as a consequence of your non-payment of any part of the Outstanding Credit Amount or other amount owing under these Terms when due.

8. Shipping, Costs, Lead Times, Shipping Providers, Damaged Products

1. Shipping

1. Markato shall make available to Retailers the option to select an appropriate shipping method for 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 the 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.
2. You acknowledge that each Brand:

1. shall be responsible for packaging its Products that are the subject of an Order to the relevant Retailer, in accordance with the details specified in the relevant Order.
2. shall ensure that its Products, and all packaging of its 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. You acknowledge and agree that Markato will not be responsible, and disclaimers any and all liability, for any failure by a Brand's Products or any packaging of its  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.

3. You acknowledge that lead times vary on how long it takes for a Brand to ship a product. Average lead times are displayed on the Brand's page and/or when the product is in your cart.
4. Once the Brand accepts the order, the expected ship date will be updated in your Retailer Account. You will receive a notice once the product has shipped, giving you a tracking number and letting you know the cost of shipping. This information is also available in your Retailer Account.

2. Shipping Costs

1. At the time that the Retailer places an order for the purchaser of goods and selects an appropriate shipping method the Retailer shall be notified of the applicable shipping costs ("Shipping Costs"). Unless Markato has authorized free shipping, you are responsible for and agree to pay for all shipping costs displayed on your invoice as well as any customs and/or duties on international orders. Shipping costs will be included in your invoice. Shipping costs will vary depending on the weight of the package and where the package is being shipped from.
2. 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 paid for the Products).
3. Shipping Costs may appear on a Retailer’s invoice, and shall reflect the actual shipping costs incurred to ship the Products.

3. Tracking Number

Upon the acceptance of any Order, Markato shall arrange for a tracking number to be issued to you, which may be used for tracking the status of such Order (including packaging, shipment and delivery details). You acknowledge that each shipping provider engaged to ship your Orders (and not Markato) shall be responsible for preparing each tracking number, and for keeping the information regarding the status of your Order that is linked to the tracking number uptodate and accurate.

4. Shipping Insurance

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 Brand.

9. Returns, Refunds, Cancellations

1. Returns

1. Markato offers each Retailer 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. To be eligible to return and collect a refund for such Products you must notify us of your intention to return the relevant Products within the time period specified on the Site (“Return Eligibility Period”) and comply with such other guidance set out on the Site regarding returns, refunds and cancellations (“Returns, Refunds and Cancellations Policy”). You may notify us of your intention to return a Product using the functionality provided in the Services and, where you have complied with the relevant terms, Markato will fund a full refund of the paid value of the Products (excluding shipping costs, and discounts applied, or and VAT/GST which may apply) in the form of "Markato Wallet Credits" for any qualifying Product. This right shall not apply to second and subsequent Orders between a Retailer and Brand.  
2. Markato, not the Brand, takes on this return risk. 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.
3. Markato may at its discretion take title to all Products returned by a Retailer, subject to its return policies (not all Products are eligible for return).
4. Markato may, at its discretion, require you to ship the returned order to a specified location, in which case Markato will cover the associated shipping costs. When goods are returned to Markato by a Retailer, Markato may at its option redistribute those products through its various redistribution channels.
5. To qualify for free returns and prevent future charges, you must adhere to Markato return policies as outlined in our Returns, Refunds and Cancellations Policy.
6. You acknowledge and agree that any orders from a Brand not covered in Markato’s Returns, Refunds and Cancellations Policy are not eligible for return, except under certain limited circumstances described therein. You acknowledge and agree that you shall pay for all shipping costs to your retail store, and those shipping costs are non-refundable, even if you later return the relevant Products for free under this Paragraph.

2. Refunds and cancellations

1. Retailers may contact us via the Services if they have any issues relating to damaged or missing items in an order. Markato will notify the relevant Brand 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.
2. If you receive a product that is damaged, the shipment includes missing items or you do not receive the product by the expected ship date, you must report the issue within 7 days of receiving the product as outlined in our Returns, Refunds and Cancellations Policy. You agree that if you do not timely report the issue, the product shall be deemed delivered and satisfactory.
3. Markato reserves the right to accept or reject any missing or damaged report filed by a Retailer in its sole reasonable discretion, including in the event Markato suspects any fraudulent activity. Markato’s decision whether to accept a damaged or missing claim shall be final.

10. Commitment to Quality and Service

1. Minimum Standards

1. Brand and Retailer satisfaction is of utmost importance to the long-term health and success of the Markato community.
2. Accordingly, Brands are subject to the following minimum standards in connection with the Services:

1. to accurately list and describe available Products on Brand Pages;

2. to ensure that any cancellation of an Order is effected in a timely manner;

3. to timely package and prepare for shipment Products that are the subject of an Order (in accordance with the specifications of the Order);

4. to promptly and effectively respond to Retailer inquiries; and

5. to promptly resolve missing or damaged orders with a Retailer.

3. Please notify Markato if you have any concerns with a Brand's compliance with any of the foregoing.

2. Metrics

1. Markato will track and measure your use of the Services using a variety of metrics, including collecting reviews and ratings from your Brands. 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 Brands.
2. Such metrics may include:

1. your timely payment for Orders;
2. how often your orders are reported as damaged or missing Products:
3. how often your Orders are returned or cancelled; and
4. how promptly and effectively you respond to Brand inquiries.

3. Volume Considerations

Markato takes volume consideration into account when calculating metrics.

4. Evaluation

Markato typically evaluates a Retailer'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 Retailer Account and/or the extent of available data. Markato reserves the right to adjust its evaluation criteria as needed.

5. Accountability

1. If Markato determines that you are not meeting the minimum standards, Markato may reach out to you in an attempt to resolve the issue and/or temporarily suspend or permanently terminate your Retailer Account.
2. Markato also reserves the right to put limits on your Retailer Account.

6. Suspended Accounts

If your Retailer 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 acquiring through the Services. If you believe that the flag on your Retailer Account is erroneous, you may contact Markato and explain why.

11. Product Liability Insurance

1. All Retailers are encouraged to maintain, at their own cost and expense, general commercial liability insurance (including comprehensive product liability) with respect to the Products acquired via the Services 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.

12. your general obligations

1. You agree that you shall not use the Site, Application or Services to:

1. 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.
2. 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;
3. 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;
4. access, use or attempt to use another user's User Credentials and Security Passwords;
5. attempt to access all or part of the Service without authorisation;
6. use data mining tools, bots or any other similar tools for collecting and extracting data from the Site, Application or Services;
7. hinder the operation of the Site, Application or Services and/or the Service;
8. 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
9. do anything that would be likely to harm the image and/or reputation of Markato or the Site, Application or Services.

13. Indemnity

1. 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:

1. any breach by you of the Terms of Service (including these Retailer Terms); and
2. any breach by you of applicable laws,

(each, a "Claim").

2. Subject to  13.3, the Indemnified Party shall:

1. promptly notify you in writing of any Claim that arises; and

2. provide you, at your cost, with all assistance as it may reasonably require in relation to the conduct of such Claim.

3. 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.

4. Markato holds the benefit of the indemnities under this Paragraph 15 (and each other indemnity provided by you under the Retailer 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.

14. LiabilitY and DISCLAIMERS

1. The limitations on liability set out in these Retailer Terms do not apply in respect of any liability:

1. for death or personal injury resulting from negligence;

2. for fraud or fraudulent misrepresentation;

3. for wilful default of these Retailer Terms; or

4. that cannot be excluded by law.

2. 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 14.1, 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 Retailer 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.
3. Subject to Paragraph 14.1, 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:

1. the Services (or any products, information, or other materials obtained by you in connection with the Services) will meet your requirements or expectations; or
2. the Services will be uninterrupted, timely, secure, or error-free.

4. Subject to Paragraph 14.1, 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 Retailer Terms for:

1. loss or corruption of data or information (whether direct or indirect);

2. 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);

3. 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;

5. Subject to Paragraph 14.1, 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: (i) any Order shall not exceed the amounts actually paid by you in respect of such Orders; and (ii) in all other cases, arising out of or in connection with these Retailer Terms (or any other Terms of Services), shall not exceed US$1,000..
6. You acknowledge 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 14.1, 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.

15. Prohibited Uses

1. Markato will have the right to investigate and prosecute violations of these Retailer Terms to the fullest extent permitted by law.
2. 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 Retailer 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.
3. Markato reserves the right, at any time and without prior notice, to remove or disable access to any of Your Retailer Materials, in its sole discretion, considers to be in violation of these Retailer Terms, applicable laws or otherwise harmful to the Services.
4. 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.

16. Termination

1. 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 Retailer Terms for your breach, you will remain liable for all amounts due hereunder.
2. If you breach any of these Retailer Terms, Markato will have the right to temporarily suspend or permanently terminate your Retailer Account, and/or terminate these Retailer Terms, in its sole discretion and without prior notice to you.
3. You may terminate your relationship with Markato at any time by contacting us or as otherwise indicated in your Retailer Account portal. Markato will close your Retailer Account once there has been an accounting of all monies due and owing.

17. applicable laws and Regulations

1. You agree and understand that by opening a Retailer 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 Retailer Account.
2. Without limitation to the above, your access to and use of your Retailer Account and the Services, and the receipt of any amounts due to you under these Retailer 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.

18. confidentiality

1. 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 Retailer 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").
2. You may use the Confidential Information solely to the extent necessary to receive the benefit of the Services in accordance with the Retailer Terms.
3. The obligation to maintain confidentiality under this paragraph shall not apply to any Confidential Information to the extent that such information is:

1. in the public domain through no breach of the Retailer Terms;
2. 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
3. required to be disclosed to a Regulatory Authority or by applicable laws.

4. 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.
5. Any Confidential Information shall remain the property of Markato and may be copied or reproduced only with our prior written consent.
6. 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.

19. PRIVACY POLICY

We are committed to protecting your personal information and to helping you understand exactly how your personal information is being used. You should carefully read our Privacy Policy, which provides details on how your personal information is collected, stored, protected, and used.

20. cookies

By accessing the Site, you agree to use cookies in agreement with Markato's Privacy Policy. The Site uses cookies to enable us to retrieve user details for each visit, and to enable the functionality of certain areas of the Site to make it easier for users visiting the Site to access and use the Services.

21. general

1. Assignment and Subcontracting

2. You may not assign, novate, or otherwise transfer, any of your rights or obligations under the Retailer Terms, or sub-contract the performance of any of your obligations under the Retailer Terms, without the prior written consent of Markato. Any attempted assignment, novation, transfer or sub-contracting without our consent shall be void.
3. Markato may assign, novate, or otherwise transfer any of its rights or obligations under the Retailer Terms to any other person, or sub-contract the performance of any of its obligations under the Retailer 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 Retailer Account portal.

4. Entire agreement

1. You agree that the Retailer Terms (together with the Terms of Service) constitute the entire agreement between you and Markato with respect to the use of the Services.
2. You agree that in agreeing to and entering into the Retailer 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 Retailer Terms.
3. You agree that your only right of action in relation to any innocent or negligent Representation set out in the Retailer Terms or given in connection with the Retailer 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.

5. Notices

1. Any notice (including any approval, consent or other communication) to be given in connection with these Retailer Terms (a "Notice") shall be in writing and in the English language.
2. 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.
3. 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 Retailer, the contact details submitted as part of registering your Retailer Account.
4. Any Notice given in accordance with this Paragraph 21.5 shall be deemed to have been served or delivered:

1. if given or served by hand, at the time of delivery;
2. if sent by pre-paid registered or recorded delivery, on the second Business Day after the day of posting; or
3. 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.

6. Survival

All rights and obligations of the parties that by their nature are continuing will survive the termination of the Retailer Terms.

7. Severability

If any provision or part of the Retailer Terms is void or unenforceable due to any applicable laws, it shall be deemed to be deleted and the remaining provisions of the Retailer Terms shall continue in full force and effect. If any invalid, unenforceable or illegal provision of the Retailer 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.

8. Successors and assigns

The Retailer Terms shall be binding on, and ensure to the benefit of, the parties to the Retailer 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.

9. Variation and waiver

1. No waiver by Markato of any right or remedy provided by the Retailer 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 Retailer 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.

10. No partnership or agency

Nothing in the Retailer 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 Retailer 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.

11. Set off

1. Notwithstanding that any amount is from time to time payable by Markato to you under or by virtue of the Retailer Terms or otherwise, you shall not set off such amount against any amount payable by you to Markato under the Retailer Terms.
2. Markato may set off any amounts which from time to time are payable by Markato to you under or by virtue of the Retailer Terms or otherwise against any amounts payable by you to Markato under the Retailer Terms.

12. Equitable remedies

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 Retailer 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 Retailer Terms may be more appropriate remedies.

13. Third party rights

Save as otherwise expressly provided in the Retailer Terms:

3. the Retailer 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 Retailer Terms; and
4. no other person shall assert any rights as a third party beneficiary hereunder (notwithstanding any legislation to the contrary anywhere in the world).

14. Counterparts

The Retailer 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.

15. Electronic signature

The Retailer Terms may be entered into by electronic means.

22. Controlling law and jurisdiction

1. These Retailer Terms and any Dispute shall be governed by the laws of Hong Kong.
2. 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.
3. Each party irrevocably agrees that the Courts of Hong Kong shall have exclusive jurisdiction in relation to any Dispute.
4. 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.]
5. For any disputes regarding an order or product from a Brand, you may contact Markato to help resolve the issue. Markato will use good faith efforts to assist you and the applicable Brand to resolve such dispute.

23. Key Definitions

"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" 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.

"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 Retailer 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 Retailer 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 a Brand makes 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 Addendum" means any Retailer Addendum that we agree to enter into with you. The purpose of a Retailer 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 Retailer Addendum with you in our sole and absolute discretion.

"Retailer" means a buyer who purchases Products through the Services for the purpose of resale.

"Retailer 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.

"Returns, Refunds and Cancellations Policy" means Markato's policy for the return of any Product, the refund of amounts paid in respect of any Product, and the cancellation of any Order, via the Services. Markato shall make available to you the Returns, Refunds and Cancellations Policy via the Services. Markato reserves the right to modify the Returns, Refunds and Cancellations Policy in its sole and absolute discretion, from time to time.

"Settlement Data" has the meaning given to it in the Airwallex Terms.