Merchant Terms & Conditions

 

GENERAL TERMS AND CONDITIONS

1         DEFINITIONS

 

In this Agreement, the following words shall have the following meanings:

 

“Agreement ”

means Parts 1 to 3 of the merchant agreement, these general terms and conditions, comprising together with schedules, annexes and any attachments, and any documents expressly incorporated by reference;

 

“Commencement Date”

means the date set out at the head of the Agreement;

 

“Commission”

has the meaning given in Part 2 and clause 6.1;

 

“Customer Order”

means a contract for sale and purchase of the Products made between Party B and a buyer through Booloopz;

 

“Fulfilled Order”

means in respect of a Customer Order, where the ordered Products have been delivered to buyer and full payment of the invoice has been settled by buyer;

 

Booloopz

means Booloopz located at www. booloopz.com and Booloopz mobile app / site;

 

“Intellectual Property”

means any and all of the following items, whether or not registered, applications for the following items (whether or not registrable) and the right to apply for the items (where registrable):

 

(a) trade marks, logos, trade / brand names

(b) design rights, registered designs, and unregistered designs,

(c) copyright,

(d) domain names and URLs,

(e) rights in respect of confidential information, and

(f) all other intellectual property rights and similar rights in any country of the world,

 

in which Party B has an ownership interest or legal right of use;

 

“Parties”

means Party A and Party B, and “Party” shall mean either one of them;

 

“Products”

means services and/or products to which Party B has a licence, authorisation, or right to sell in the Territory;

 

“Term”

the meaning given in Part 3 and clause 8 below; and

 

“Territory or Hong Kong”

means the Hong Kong Special Administrative Region of the People’s Republic of China.

2         PARTY A’S OBLIGATIONS

2.1         Party A shall design, develop, operate and maintain Booloopz, and shall endeavor to make available Booloopz for open access at all times.

2.2         In pursuance of its objectives set out in clause 2.1, Party A undertakes to:

2.2.1    Perform as an executive producer to maintain the design, layout, “look and feel” of Booloopz with the following features –

2.2.1.1   a payment gateway capable of managing multiple means of payment for transaction between Party B and buyers;

2.2.1.2   an email/whatsapp for Party A to provide customer service support to customers;

2.2.1.3   an enabled access function for personal computers and mobile devices;

2.2.2    run regular marketing and promotional campaigns on a platform-wide basis; and

2.2.3    Upon receipt of a Customer Order, Party A shall pass the order information in its prescribed form, including customer name, product code and/or description and quantity to Party B.

3         PARTY B’S OBLIGATIONS

3.1         In order to maintain uniform high standards of the registered merchants, protect the Intellectual Property rights and maintain the goodwill of Booloopz, Party B agrees during the Term to strictly observe the obligations set out below:

3.1.1    Party B shall maintain its business conduct and ethics in the highest standards.

3.1.2    Party B shall carry on its business diligently and in a manner in all material respects reasonably satisfactory to Party A, and as may be reasonably required by Party A from time to time to maintain the goodwill of Booloopz.

3.1.3    Party B shall ensure that the Products offered for sale are of merchantable quality, fit for purpose, or fit for human use or consumption. Without limitation, Party B shall ensure that any Products past the “due by date” or “best before date”, or marked as “not for sale”, “not for individual sale”, “tester”, “sample” or with wording to a similar effect are not offered for sale.

3.1.4    Party B shall set its own prices of the Products, and shall not enter into any anti-competitive agreements, concerted practices and decisions with any of its competitors, or any other person whatsoever in relation to the prices at which Party B will provide the Products. To ensure that consumer interest will be protected, Party B shall ensure that the Products offered for sale at Booloopz will be on no less favourable terms than those offered by Party B at its physical stores or online stores in the Territory.

3.1.5    If the Product is provided in the form of voucher, Party B shall take reasonable steps to ensure voucher buyers will receive non-discriminatory treatment, and accept unconditional returns and refunds upon Party A’s instructions.

3.1.6    Party B shall be responsible for publishing and maintaining all content relating to the Products on Booloopz, including without limitation content on the store page, shop banner and product description pages. All content on the store page and product description pages shall be in traditional Chinese, simplified Chinese and English. Party B shall on a regular basis provide Party A with its price list, catalogues, sales literature, and up-to-date information concerning the Products.

3.1.7    Party B shall maintain a dedicated level of stock / quota to fulfill the Customer Orders to the reasonable satisfaction of Party A, and provide Party A with a daily updated appraisal of stock / quota changes. Where Party B is unable to fulfill the Customer Order or if the Products are sold in the form of voucher and Party B is unable to fulfil the redemption, due to (i) the Product(s) being out of stock / quota, (ii) early delivery (iii) late delivery, (iv) non-delivery, (v) incomplete or wrong delivery (including non-merchantable quality) and/or (vi) any cancellation of the Customer Order by Party B, Party B shall pay Party A a penalty charge at the rate of HK$100 (or such reasonable sum as determined by Party A) for each subsequent delivery and/or collection of wrongly delivered items to fulfill the Customer Order, or for cancellation of the Customer Order.

3.1.8    Party B shall strictly comply with the provisions of this Agreement, information security, and data protection policy, as may be published by Party A.

3.1.9    Party B shall provide continuing support and assistance to Party A in facilitating transaction processes and effective operations of Booloopz to the reasonable satisfaction of Party A.

3.1.10 Party B shall make available a representative of Party B who shall be contacted by Party A for general enquiries during office hours and emergency enquiries 24 hours a day and 7 days a week.

3.1.11 Party B shall provide sale and post-sale service to buyers to the reasonable satisfaction of Party A.

3.1.12 Party B shall install a dedicated electronic system for processing the Customer Orders.

3.1.13 Party B shall perform its obligations under this Agreement with all due care, skill and diligence in accordance with all applicable laws, rules and regulations, and Party A’s policies and/or guidelines in relation to the operations of Booloopz, fair trade practices, and product safety.

3.1.14 Party B shall obtain any necessary import licences, certificates of origin or other requisite documents, and pay all applicable customs, duties and taxes in respect of the importation of the Products into the Territory and the distribution in the Territory.

3.1.15 Party B shall ensure that the Products (as for food) are in compliance with all labelling, packaging, distribution and other applicable legal requirements in the Territory, including without limitation food and nutrition labelling requirements under the Food and Drugs (Composition and Labelling) Regulations (Cap.132W) and Public Health and Municipal Services Ordinance (Cap.132) and restrictions on labelling and advertisements under the Undesirable Medical Advertisements Ordinance (Cap.231).

3.1.16 Party B shall ensure that the Products (as for consumer goods) are in compliance with all labelling, packaging, distribution, safety and other applicable legal requirements in the Territory, including without limitation Chinese and English safety warning labelling requirements under the Consumer Goods and Safety Ordinance (Cap.456) and its regulations and the Toys and Children’s Products Safety Ordinance (Cap.424).

3.1.17 Party B shall ensure that the Products (as for electronics) have valid safety certificates as legally required and are in compliance with all safety and other applicable legal requirements in the Territory, including without limitation the Electricity Ordinance (Cap.406) and the Electrical Products (Safety) Regulations (Cap.406G).

3.1.18 Party B shall ensure that the Products (as for pesticides) are registered pesticides under the Pesticides Ordinance (Cap.133) and in compliance with all labelling, packaging, distribution, safety and other applicable legal requirements in the Territory, including w i t h o u t l i m i t a t i o n Chinese and English safety labelling requirements under the Pesticides Ordinance (Cap.133) and the Pesticides Regulations (Cap.133A), and that it holds a valid licence or permit for the supply or sale of pesticides.

3.1.19 Party B shall ensure that it holds all necessary licences and/or permits for the supply of all Products under applicable laws.

3.1.20 Party B shall ensure that the Products and all content published on Booloopz in relation to the Products comply with all legal requirements in the Territory, including without limitation the Trade Descriptions Ordinance (Cap.362) and the Control of Obscene and Indecent Articles Ordinance (Cap.390).

3.1.21 Party B shall not offer to sell any prohibited goods or services as set forth in Schedule 2.

3.1.22 Party B shall provide information and documents as Party A may require evidencing authenticity of Products and regulatory compliance.

3.1.23 Party B shall take down the Products from Booloopz and follow Party A’s product recall instructions upon Party A’s immediate notice. For the avoidance of doubt, Party A will only provide product recall instructions to Party B where such product recall is required or requested by regulatory authorities.

3.1.24 Party B shall follow Party A’s reasonable product return instructions upon Party A’s immediate notice, as set forth in Schedule 1.

3.1.25 Party B shall not publish any contact information or content on Booloopz, display any promotional information on the goods packaging, place any promotional material (including without limitation leaflets, business cards, posters and brochures) and/or do any act that may advertise or promote (i) Party B’s own website and/or social media platform(s), which carries on any e-commerce business, and/or (ii) any sales channels other than Booloopz. For the avoidance of doubt, any product warranty details that contain contact information shall be completed and displayed in accordance with Party A’s instructions.

3.1.26 Party B shall comply with Party A’s goods packaging standards as determined by Party A from time to time.

3.1.27 Party B shall not permit third party couriers to charge additional delivery fees to customers (for example, additional fees for home delivery).

3.1.28 Party B shall ensure that Party B’s staff and their immediate family members do not leave any comments on Booloopz on any Products. Party B shall not contribute to any false comments on Booloopz.

3.1.29 In order to maintain uniform high standards of the registered merchants, maintain the goodwill of Booloopz, and protect the legitimate interests of Party A, including its trade secrets, intellectual property rights, know-how, and promotional efforts invested, Party B shall not be directly or indirectly engaged or involved in any online shopping business which competes with Party A within Hong Kong during the Term. Nothing in this clause shall restrict Party B from operating its own online stores on TMall.com, on other online shopping platforms which are subject to an unexpired contract which commenced before Party B had any business relationship with Party A, and its websites carrying on an e -commerce business on its own account. The above condition is considered by the Parties to be reasonable and necessary in the circumstances to protect the legitimate interests of Party A.

4         ADVERTISING

4.1         Party B acknowledges that Party A shall have the exclusive advertising right of Booloopz and shall be entitled to all revenue received in connection with Booloopz, including without limitation advertising revenue in connection with Booloopz’s promotional, marketing and advertising activities. Party A shall not be required to make any payment to Party B except as expressly provided in this Agreement.

4.2         Party B undertakes not to do anything which may compromise Party A’s receipt of the advertising revenue referred to in clause 4.1 above, including without limitation interfering in any way with advertising contents and activities of Booloopz.

5         EXPENSES
Each Party shall bear its own costs and expenses in carrying out its obligations under this Agreement.

6         COMMISSION AND PAYMENT

6.1         Party B shall pay the Commission to Party A for each Fulfilled Order at the rate set out in New Merchant Form or at the rate as adjusted by Party A in accordance with clause 6.2 of this Agreement.

6.2         Party A reserves the right to adjust the Commission by prior notice, provided that if Party B disagrees with the adjusted Commission, either Party may terminate this Agreement upon thirty (30) days’ written notice which shall be given within thirty (30) days from the date of notice of the adjusted Commission.

6.3         In respect of the Products other than sold in the form of voucher, Party A shall pay Party B the amount of net revenue (after deduction of all applicable charges, including without limitation store credit used, store offered discount or rebates, the Commission, penalty charges, amount refunded or refundable or subject to charge-back to buyers, payers or third parties and advertising fees in accordance with clause 6.9) once per month together with a transaction report to Party B showing the Fulfilled Orders (which the product return period as specified in clause D1(i), Schedule 1 has lapsed) to which the Commission relates and the amount of the Commission and the amount of net revenue payable to Party B. The amount of net revenue payable to Party B shall deem to be final and conclusive if no written notice of dispute is given by Party B within fourteen (14) days from the date of receipt of the transaction report (except for those amount refunded, refundable or subject to charge-back to buyers, payers or third parties as requested subsequently by such parties after the product return period as specified in clause D1(i), Schedule 1). In the event that the amount in dispute raised by Party B is accepted by Party A, the said amount will be adjusted in the next transaction report.

6.4         In respect of the Products sold in the form of voucher, Party A will compute the net amount (after deduction of all applicable charges, including store credit used, store offered discount or rebates, the Commission, penalty charges, and amount refunded or refundable or subject to charge-back to buyers, payers or third parties) in respect of each voucher redeemed in accordance with Party A’s records (which shall be final and conclusive) and shall settle the appropriate payment for such net amount once per month together with a transaction report provided to Party B. In case of dispute, the Parties agree and accept that Party A’s decision shall be final.

6.5         For the avoidance of doubt, Party A shall only be liable to pay the relevant net revenue or net amount to Party B under this Agreement when such revenue or amount is actually received by Party A in accordance with Party A’s records (which shall be final and conclusive), and such revenue or amount is not subject to any refund, refund requests, charge-back or charge-back requests by any financial institution, payment processor, buyer, payer or third party and is not otherwise deemed to be a suspicious transaction in Party A’s sole opinion.

6.6         Party B shall be liable to pay Party A for any amount refunded, refundable, charged-back or subject to charge-back to any financial institution, payment processor, buyer, payer or third party for whatever reason subsequently after payment by Party A to Party B, and Party B shall settle the payment within seven (7) working days upon notice from Party A.

6.7         Party B shall be liable to pay Party A for the amount refunded / refundable to buyers as requested subsequently by buyers after the product return period as specified in clause D1(i), Schedule 1, and Party B shall settle the payment within seven (7) working days upon notice from Party A.

6.8         Party A has the right to demand penalty charges from Party B as specified in clause F, Schedule 1 and Schedule 3 and Party B shall settle the payment within seven (7) working days upon notice from Party A and/or allow the said amount to be adjusted in the next transaction report.

6.9         In respect of advertising fees charged by Party A for marketing and promotional activities provided for Party B including without limitation electronic direct mail campaigns and banner advertisements on Booloopz, such advertising fees will be adjusted in the transaction report of the following month, unless such advertising fees are required to be prepaid by Party B before the marketing and promotional activities are provided.

6.10      Party A may set off against any amounts payable to Party B any amount owed by Party B to Party A (or to a third party, if such third party claims such amount from Party A or, in Party A’s sole opinion, will likely do so). Party B shall not have the right to set off any amounts owed by Party A. Any payment made by Party A to Party B shall be without prejudice to any claims or rights which Party A may have against Party B.

7         CONFIDENTIALITY
The Parties undertake that they shall at all times keep confidential the terms and contents of this Agreement and any confidential information concerning the other Party (“Confidential Information”). Each Party shall not, without the prior written consent of the other Party, use or disclose the Confidential Information to any person save and except for the proper performance and discharge of its obligations and responsibilities under this Agreement or where such disclosure is required by law or by the rules, regulations, directives or orders of the regulatory body having jurisdiction over the disclosing Party or required for any legal proceedings or process or if such disclosure is made by a Party to its auditors or other professional advisers or required to be made pursuant to the rules of a stock exchange.

8         TERM
The Term of the Agreement shall commence on the Commencement Date and unless terminated earlier in accordance with the provisions of this Agreement shall continue for a period specified in Part 3. This Agreement shall thereafter automatically be renewed for periods of one (1) year unless either Party shall give the other Party three (3) months’ written notice that the Agreement is at an end before the expiry of the Term.

9         TERMINATION

9.1         This Agreement may be terminated by either Party on giving immediate written notice to the other if (i) the other Party is in material breach of the terms of this Agreement, or (ii) the other Party files a petition in bankruptcy, or has filed against it an involuntary petition in bankruptcy not dismissed within sixty (60) days after filing, or applies for or consent to the appointment of a receiver, custodian, trustee or liquidator, or makes a general assignment for the benefit of creditors. Party B agrees and accepts that any breach of the provisions under clauses 3, 4, 6, 7, 10 and 11 shall constitute a material breach.

9.2         Party A may terminate this Agreement at any time by giving Party B a thirty (30) days’ advance written notice.

9.3         Either Party may terminate this Agreement in accordance with clause 6.2.

9.4         On expiry or termination of this Agreement, Party A and Party B shall settle the Commission on all Fulfilled Orders up to the date of termination within fourteen (14) days of termination.

10      INTELLECTUAL PROPERTY

10.1      Party B hereby grants to Party A and its subsidiaries, a non-exclusive and royalty-free licence to use the Intellectual Property during the Term in relation to the Products, including without limitation trade marks, Product photographs, videos and Product descriptions, for the purposes of exercising Party A’s rights and performing its obligations under this Agreement. Party B hereby acknowledges that the Intellectual Property rights licensed to Party A under this clause may be sub-licensed by Party A to Party A’s business partners and service providers during the Term for the purpose of advertising or promoting the Products and/or Booloopz. Party A acknowledges that except as expressly provided in this Agreement it will not acquire any rights in respect of such rights and goodwill and that they are, and shall remain, vested in Party B or its licensors.

10.2      All rights in the design, text, graphics, photographs (including product photographs produced by Party A), and other material on Booloopz, and the selection or arrangement thereof are the copyright of Party A. Party B acknowledges that except as expressly provided in this Agreement it will not acquire any rights in respect of such rights and goodwill and that they are, and shall remain, vested in Party A or its licensors.

10.3      Party A hereby grants to Party B, a non-exclusive and royalty-free licence to use the product photographs produced by Party A for the purpose of promoting the Products during the Term.

11      REPRESENTATIONS AND WARRANTIES

11.1      Each Party represents and warrants that it has full power and authority to enter into this Agreement and that upon execution and delivery hereof, this Agreement will constitute the valid and binding obligations of the Party.

11.2      Party B warrants, represents and undertakes to Party A as follows:

11.2.1 Party B is free to enter into this Agreement and grant Party A the rights and licences granted under it and is not under any disability, restriction or prohibition which might prevent Party B from performing or observing any of Party B’s obligations under this Agreement;

11.2.2 Party B has not entered into and will not enter into any arrangement which may conflict with this Agreement; and all third party liabilities shall be the sole responsibility of Party B, and Party A shall not incur any liability for these;

11.2.3 Party B is entitled to grant the rights and licences herein, and will maintain throughout the Term all rights, authorisations and licences that are required in order for it to perform its obligations hereunder;

11.2.4 there are no allegations or proceedings, pending or threatened, which assert that development, manufacture, use or sale of the Products and/or any content published or to be published on Booloopz infringe or will infringe third party rights;

11.2.5 the use or sale of any of the Products and/or any content published or to be published on Booloopz do not and will not infringe any third party rights;

11.2.6 the Products are fit for human use or consumption;

11.2.7 all content in relation to the Products and/or Party B including without limitation content on the store page, shop banner, product description pages and Party B’s price list, catalogues, and sales literature are true and accurate and will not contain any untrue, misleading, and deceptive statements, representations or claims in respect of the Products, and Party B will be solely responsible for any errors, omissions or losses in relation to its information published on Booloopz;

11.2.8 all promotional materials and information published on Booloopz or otherwise made available to Party A shall be solely related to the Products available for sale on Booloopz;

11.2.9 Party B acknowledges that the ownership of the customer data is vested with Party A solely and Party B will not use the customer data for Party B’s own marketing purposes nor any purposes other than for handling the Customer Order and will not transfer any customer data to any person unless such transfer is necessary for handling the Customer Order; and

11.2.10           Party B will not conduct its business for any fraudulent or unlawful purpose.

12      INDEMNIFICATION

12.1      Party B shall indemnify Party A, its holding company and affiliated companies and their respective officers, employees, consultants, agents and representatives from any and all claims, demands, liabilities, damage and/or expenses, including without limitation legal fees, incurred or sustained by Party A as follows:

12.1.1 in respect of any alleged or actual infringement of any intellectual property rights, copyright, trade mark, design rights or any other rights of any third party;

12.1.2 any loss and/or damage sustained by Party A and/or for which Party A may be liable as a result of the failure of Party B to perform its obligations to Party A;

12.1.3 in respect of any claims which may be asserted against or suffered by Party A relating to the use of the Products, including without limitation claims based on product liability laws;

12.1.4 in respect of any breach by Party B of the warranties, representations, and obligations under this Agreement; and

12.1.5 in respect of any fraudulent, unlawful and/or suspicious transactions in respect of the purchase and/or resale of the Products or otherwise relating to or in connection with the Products (regardless of any negligence, default, conduct or fault, in whole or in part, by Party A or any indemnified parties).

13      LIMITATION OF LIABILITY

13.1      To the extent permitted by law, the Parties exclude all warranties, conditions, and representations other than expressly stated in this Agreement.

13.2      Party A disclaims and excludes all other warranties conditions, representations and guarantees, express or implied, including but not limited to (i) implied warranties of merchantability, fitness for a particular purpose, and non-infringement (ii) warranties as to the quality or performance of the materials, information, goods, services, technology and/or content provided under or in connection with this Agreement, including but not limited to the quality, completeness or accuracy of any content made available on Booloopz. Party A further makes no warranty that Booloopz will be uninterrupted, timely or error-free or that the results or information obtained from use of Booloopz will be accurate or reliable.

13.3      To the extent permitted by law, Party A’s liability under or in connection with this Agreement, whether arising in contract, tort, negligence, breach of statutory duty or otherwise, shall not exceed the sum of the Commission received from Party B for the preceding twelve (12) months.

13.4      Neither Party shall be liable to the other Party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other Party of an indirect or consequential nature including without limitation any economic loss or other loss of turnover, profits, business or goodwill.

13.5      Party A does not intend, and does not undertake, to monitor the materials and information provided by Party B, and accepts no responsibility arising therefrom. Party A shall have the right, at its sole determination, to delete any Party B’s materials and information from Booloopz without any prior notice to Party B.

14      GENERAL

14.1      No failure or delay by any Party in exercising any right or remedy provided by law under or pursuant to this Agreement shall impair such right or remedy or operate or be construed as a waiver or variation of it or preclude its exercise at any subsequent time and no single or partial exercise of any such right or remedy shall preclude any other or further exercise of it or the exercise of any other right or remedy.

14.2      If and to the extent that any provision of this Agreement is held to be illegal, void or unenforceable, such provision shall be given no effect and shall be deemed not to be included in this Agreement but without invalidating any of the remaining provisions of this Agreement.

14.3      This Agreement sets forth the entire agreement and understanding of the Parties and supersedes all prior oral or written agreements, understandings or arrangements relating to the subject matter of this Agreement. Neither Party shall be entitled to rely on any agreement, understanding or arrangement that is not expressly set forth in this Agreement.

14.4      This Agreement may be executed in any number of counterparts and by the Parties to it on separate counterparts, each of which is an original but all of which together constitute one and the same instrument.

14.5      Subject to the following sentence, neither Party may assign, delegate, sub-contract, mortgage, charge or otherwise transfer any or all of its rights and obligations under this Agreement without the prior written agreement of the other Party. Party A may, however, assign and transfer all its rights and obligations under this Agreement to any person to which it transfers all of its business, provided that the assignee undertakes in writing to the other Party to be bound by the obligations of the assignor under this Agreement.

14.6      No Party shall issue or make any public announcement or disclose any information regarding this Agreement unless prior to such public announcement or disclosure it furnishes all the Parties with a copy of such announcement or information and obtains the approval of such persons to its terms. However, no Party shall be prohibited from issuing or making any such public announcement or disclosing such information if it is necessary to do so to comply with any applicable law or the regulations of a recognised stock exchange.

14.7      Nothing in this Agreement shall be deemed to constitute a partnership between the Parties, nor constitute any Party the agent of the other Party.

14.8      Any notice to be given under this Agreement shall be in writing and shall be sent by mail, by fax or email to the relevant Party. Notices sent as above shall be deemed to have been received 4 working days after the day of posting (in the case of local mail), or 7 working days after the date of posting (in the case of air mail), or on the next working day after transmission (in the case of fax messages, but only if a transmission report is generated by the sender’s fax machine recording a message from the recipient’s fax machine, confirming that the fax was sent to the number indicated above and confirming that all pages were successfully transmitted), or on the next working day after sending (in the case of email). The Parties agree that it shall be effective service of process of any legal action or proceedings arising out of or in connection with this Agreement by serving the process on a Party upon the address set out in this Agreement.

14.9      Clauses 6, 7, 9.4, 11, 12, 13, and 14 of this Agreement shall survive the termination of this Agreement.

14.10  Each Party shall ensure that, in performing its obligations under this Agreement, it complies with the provisions of the Prevention of Bribery Ordinance and any other applicable anti-bribery law.

14.11  Party A’s holding company and affiliated companies, and their respective officers, employees, consultants, agents and representatives (each a “Party A Third Party”) may, pursuant to the Contracts (Rights of Third Parties) Ordinance (Cap.623), rely on any provision of this Agreement (including without limitation any indemnity, limitation or exclusion of liability) which expressly confers rights or benefits on that person. Subject to this, no person who is not party to this Agreement shall have any right to enforce any term of this Agreement under the Contracts (Rights of Third Parties) Ordinance (Cap.623). The parties may, without the consent of any Party A Third Party, rescind or vary this Agreement in such a way as to extinguish or alter the benefits or rights conferred by this clause.

14.12  Party A reserves the right to make changes to these general terms and conditions from time to time without providing any prior notification. The amended general terms and conditions are effective from the date they are notified to Party B. Party B’s continued use of Party A’s services and/or placement of the Products on Booloopz shall represent Party B’s unconditional acceptance of the latest version of the general terms and conditions.

14.13  This Agreement is governed by the laws of Hong Kong. The courts of Hong Kong shall have exclusive jurisdiction to hear and determine any suit, action or proceedings, and to settle any dispute, which may arise out of or in connection with this Agreement.

 

 

SCHEDULE 1

DELIVERY AND RETURN UNDERTAKINGS

A. DELIVERY

1.      Delivery of the Products to the buyers shall be handled by Party B. A penalty charge arising from Party B’s breach of clause 3.1.8 or this clause A1 shall be borne by Party B.

2.      Upon receipt of a Customer Order, Party A shall pass the order information in its prescribed form, including customer name, product code and/or description and quantity to Party B.

3.      The ownership of the Products remains with Party B and will be at Party B’s risk until receipt by the buyer. Party B shall be responsible for, without limitation, the cost of each unit of product lost or damaged in transit.

4.      The Products shall be deemed to have been delivered to buyer when the Products are to be left at buyer’s address or acknowledged receipt by recipient, irrespective in each case of whether the Products are to be carried to buyer by Party A or its authorised agents. If the Product is in the form of electronic voucher, receipt of the voucher is deemed to be made at the time the electronic record is accepted by the buyer’s information system.

5.      Products shall be handled by Party B at its own costs and expenses within the Territory in accordance with the agreed delivery schedule between Party B and buyer.

 

B. PRODUCT RETURNS AND PRODUCT RECALLS

1         Where the Products that have been sold to the buyer are incomplete or missing in the delivery, or the wrong product has been delivered, Party B shall, at the instructions of Party A, either replace the Products or credit the buyer’s account at Booloopz through Party A for the price of the Products (after deduction of any store offered discount/rebate on that particular item at purchase), provided that the return conforms to Party A’s returns policy as published on Booloopz.

2         Where Party A recognises that the returnable Products are damaged or defective for reasons not connected with any fault on the part of buyer, Party B shall, at the instructions of Party A:

2.1         replace the Products (whether entirely or as to any damaged or defective part); or

2.2         credit the buyer’s account at Booloopz through Party A for the price of the Products (or an appropriate portion of the price) after deduction of any store offered discount/rebate on that particular item at purchase.

3         Party B undertakes that any replacement Products will meet the standards and other requirements applicable to the Products originally supplied under the Customer Order.

4         For product recalls under clause 3.1.25 and all product returns, the amounts refunded or refundable to buyers shall be adjusted in the next transaction report in accordance with clause 6 of this Agreement or Party B shall settle the payment within seven (7) working days upon notice from Party A.

 

C. INSURANCE

Party B shall maintain valid comprehensive public liability, product liability, storage, local and overseas transit insurance policies with a reasonable insured sum, covering any claims, actions, or damages which may arise as a direct or indirect result of the use by the public of the Products. Party B shall also ensure that the Party A’s interest is noted on such policy as named insured and loss payee and shall upon request provide Party A with full information and documentation concerning such insurance coverage including but not limited to a copy of the insurance policy and receipts for all premiums.

 

D. PENALTY CHARGES

Party B agrees to pay to Party A the penalty charges as set out in Schedule 3 (Penalty Charges) which forms an integral part of these general terms and conditions. Party A reserves the right to make changes to Schedule 3 from time to time without providing any prior notification. The amended Schedule 3 is effective from the date they are notified to Party B. Party B’s continued use of Party A’s services and/or placement of the Products on Booloopz shall represent Party B’s unconditional acceptance of the latest version of Schedule 3.

For the avoidance of doubt, the penalty charges in this clause do not affect the application of clauses 9 (termination) and 12 (indemnification).

 

 

SCHEDULE 2

 

RESTRICTED OR PROHIBITED GOODS / SERVICES

Party B shall not offer to sell any restricted or prohibited goods / services, including but not limited to the followings:

 

1.      any infringing goods / services of whatsoever nature arising from or in relation to any infringement or alleged infringement of any intellectual property rights;

2.      Any used articles and stolen goods;

3.      Dutiable commodities;

4.      Obscene and indecent articles;

5.      Explosives, firearms and ammunition, and prohibited weapons;

6.      Strategic commodities;

7.      Animals;

8.      Controlled and hazardous chemicals, and infectious goods;

9.      Dangerous drugs, pharmaceutical products and medicine, and proprietary Chinese medicines and Chinese herbal medicines; and

10.   Any goods / services prohibited by law or regulated by licence or permit.

 

 

SCHEDULE 3

PENALTY CHARGES

 

Party B (“Merchant”) agrees to pay to Party A (“Booloopz”) the penalty charges as set out in this Schedule 3 (Penalty Charges) which forms an integral part of the Merchant Agreement General Terms and Conditions. Merchant agrees that any penalty charges and price of any refunds shall be deducted by Booloopz in the transaction report of the following month.

In order to ensure the quality of Products offered for sale by Merchants on Booloopz, and that the Products conform to related regulations and the Merchant Agreement General Terms and Conditions and Booloopz’s written guidelines, we have implemented a Penalty Charge Scheme. Merchants are liable to a payment of the penalty where (i) Booloopz receives any written enquiry, request for information, notice, warning letter, notice of legal action or penalty in respect of any breach or suspected breach of any applicable law or regulation of the Product from any tribunal, court or regulatory authority, and/ or (ii) there is any breach or suspected breach, in Booloopz s sole opinion, in relation to the Merchant’s Product of any applicable law, regulation, the Merchant

 

Agreement General Terms and Conditions or Booloopz’s written guidelines.

Merchant shall be liable to pay the price of any Products to be refunded for Customers Orders within six (6) months prior to the date of the abovementioned cases at Booloopz’s sole discretion, and agrees that the commission shall be retained by Booloopz and the relevant Product SKUs shall immediately be taken offline at Booloopz’s sole discretion. Booloopz reserves its right to terminate the Merchant Agreement and/or to claim Merchant for any damages, loss or expenses incurred on an indemnity basis, under the Merchant Agreement General Terms and Conditions.

 

Please refer to the following tables for details:

 

Table 1: Penalty charge of any written enquiry, request for information, notice, warning letter, notice of legal action or penalty in respect of any breach or suspected breach of any applicable law or regulation of the Product from regulatory authorities, tribunals or courts

Related Regulations

Penalty Charge (per SKU)

supply or offer to supply counterfeit product

HK $ 20,000, plus refund of Customer Orders within previous six months

Cap. 406 & Cap. 406G Electricity Ordinance & Electrical Products (Safety) Regulation—

supply or offer to supply an electrical product which does not comply with the essential safety requirements and/ or the specific safety requirements for the electrical product;

HK $ 20,000 plus refund of Customer Orders within previous six months

 

Cap. 138: Pharmacy and Poisons Ordinance—

supply or offer to supply pharmaceutical products containing regulated poison ingredients

HK $ 20,000 plus refund of Customer Orders within previous six months

 

Cap. 549 Chinese Medicine Ordinance—

1. supply or offer to supply proprietary Chinese medicine not registered under Hong Kong Regulations; or

2. supply or offer to supply Chinese herbal medicine which is listed in Schedule 1 of the Ordinance

 

HK $ 20,000 plus refund of Customer Orders within previous six months

 

Cap. 231: Undesirable Medical Advertisements Ordinance—

publishing product advertisements referring to certain diseases or conditions

HK $ 20,000

 

Cap. 603: Product Eco-responsibility Ordinance—

Merchant who offers electrical products cannot comply with the removal service plan endorsed under Environmental Protection Department

HK $ 20,000 plus refund of Customer Orders within previous six months

 

Cap. 132 & Cap. 132W: Public Health and Municipal Services Ordinance & Food and Drugs (Composition and Labelling) Regulations—

1. Merchant who offers food services cannot provide valid licenses; or

2. supply or offer to supply prepackaged food without food label (including nutrition label) in compliance with the regulations;

3. supply or offer to supply food not complying with the nature, substance or quality demanded by consumers

HK $ 1,000

 

Cap. 456: Consumer Goods Safety Ordinance—

supply or offer to supply products which do not contain proper safety warnings

HK $ 1,000

 

Cap. 424: Toys and Children’s Products Safety Ordinance—

supply or offer to supply toys and children’s products which do not comply with the general safety requirement or additional safety standards

HK $ 1,000

 

Cap. 133: Pesticides Ordinance—

1. Merchant who offers controlled pesticide product cannot provide valid pesticide license; or

2. supply or offer to supply pesticide product containing active ingredients that exceeds the upper concentration limit stated in Registered Pesticide List- Part I; or

3. supply or offer to supply pesticide product containing active ingredients stated on Registered Pesticide List- Part II;

 

HK $ 1,000

 

Cap. 362: Trade Descriptions Ordinance—

1. supply or offer to supply any goods to which a false trade description is applied; or

2. engage in unfair trade practices prohibited under the Trade Descriptions Ordinance

 

HK $ 1,000

 

Copyright Infringement—

use or publishing of copyright materials without permission of the copyright owner

HK $ 1,000

 

Cap. 390 Control of Obscene and Indecent Articles Ordinance—

display of any indecent content (including advertisements)

HK $ 1,000

 

Table 2: Penalty charge for cases determined by Booloopz

Related Regulations and Merchant Agreement General Terms & Conditions (“Booloopz Terms”)

Penalty Charge (per SKU)

 

Cap. 406 & Cap. 406G Electricity Ordinance & Electrical Products (Safety) Regulation—

1. supply or offer to supply an electrical product which does not comply with the essential safety requirements and/ or the specific safety requirements for the electrical product; or

2. cannot provide Certificate of Safety Compliance for the electrical product

Cap. 138 Pharmacy and Poisons Ordinance—

supply or offer to supply pharmaceutical products containing regulated poison ingredient

HK $ 500

 

 

 

HK $ 500

 

Cap. 549 Chinese Medicine Ordinance—

1. supply or offer to supply proprietary Chinese medicine not registered under Hong Kong Regulations; or

2. supply or offer to supply Chinese herbal medicine which is listed Schedule 1 of the Ordinance

HK $ 500

 

Cap. 231 Undesirable Medical Advertisements Ordinance—

publish product advertisements referring to certain diseases or conditions

HK $ 500

 

Cap. 603 Product Eco-responsibility Ordinance—

Merchant who offers electrical products cannot comply with the removal service plan endorsed under Environmental Protection Department

HK $ 500

 

Cap. 132 & Cap. 132W: Public Health and Municipal Services Ordinance & Food and Drugs (Composition and Labelling) Regulations—

1. Merchant who offers food services cannot provide valid licenses; or

2. supply or offer to supply prepackaged food without food label (including nutrition label) in compliance with the regulations;

3. supply or offer to supply food not complying with the nature, substance or quality demanded by consumers

HK $ 500

 

Cap. 456 Consumer Goods Safety Ordinance—

supply or offer to supply products which do not contain proper safety warnings

HK $ 500

 

Cap. 424 Toys and Children’s Products Safety Ordinance—

supply or offer to supply toys and children’s products which do not comply with the general safety requirement or additional safety standards

HK $ 500

 

Cap. 133 Pesticides Ordinance—

1. Merchant who offers controlled pesticide product cannot provide valid pesticide license; or

2. supply or offer to supply pesticide product containing active ingredients that exceeds the upper concentration limit stated in Registered Pesticide List- Part I; or

3. supply or offer to supply pesticide product containing active ingredients stated on Registered Pesticide List- Part II;

HK $ 500

 

Cap. 362 Trade Descriptions Ordinance—

1. supply or offer to supply any goods to which a false trade description is applied; or

2. engage in unfair trade practices prohibited under the Trade Descriptions Ordinance

HK $ 500

 

Copyright Infringement—

use or publishing of copyright materials without permission of the copyright owner

HK $ 500

 

Cap. 390 Control of Obscene and Indecent Articles Ordinance—

display of any indecent content (including advertisements)

HK $ 500

 

Booloopz Terms Section 3.1.25—

Unauthorized customer redirection (in sole opinion of Booloopz) including without limitation—

1. unauthorized or improper use of customers’ data; or

2. displaying or placing any promotional information on

i. store page; or

ii. product description page; or

iii. goods packaging;

3. inappropriate marketing techniques (e.g. Merchant’s website or other sales channel)

4. displaying or placing any contact information relating to merchant (e.g. phone number) on store pages or product description page

Penalty charge would be different based on the circumstances:

1. HK$20,000; plus immediate termination of this Agreement;

2. i. HK $ 1,000 (per store)

 

ii. HK $ 1,000 (per SKU)

iii. HK $100 (per package)

3. HK $ 1,000 (per store)

4. HK $100 (per store)

 

Booloopz Terms Section 3.1.3—

supply or offer to supply products marked as “not for sale”, “not for individual sale”, “sample”, “tester”, or with wording to a similar effect

HK $ 500

 

Booloopz Terms Section 3.1.28—

Merchant leaves comment on its Products on Booloopz or contributes to any false comments on Booloopz (including Merchant’s staff and their immediate family members)

HK $ 500 (per comment);

related comment would be removed immediately

Booloopz Terms Section 3.1.27—

1. customer being charged for additional delivery fees by third party couriers (e.g. residential surcharge)

2. display information about additional delivery fees on store page and/ or product description page(s) except for large furniture or large electrical appliances

Penalty charge would be different based on the circumstances:

1. HK $ 500 (per order)

2. HK $ 500 (per store)

 

Booloopz Terms Section 3.1.3—

supply or offer to supply products past the “due by date” or “best before date”

HK $ 100 (per order)

 

Booloopz Terms Section 3.1.13—

failure to comply with Booloopz’s marketing campaign rules

1. Large marketing campaigns e.g. Thanksgiving and seasonal campaigns

2. Other marketing campaigns

Penalty charge would be different based on the circumstances:

1. Dependent on factors which may include losses incurred and value of Customer Orders

2. HK $ 100 (per SKU)

Booloopz Terms Section 3.1.13—

use of incorrect category code on the product description page

HK $100 (per SKU)

 

Table 3: Penalty charge for cases about delivery:

Related Regulations and Merchant Agreement General Terms & Conditions (“Booloopz Terms”)

Penalty Charge

Booloopz Terms Section 3.1.7—

wrong delivery, early delivery, late delivery, non-delivery, incomplete delivery

HK $100 (per order)

 

Booloopz Terms Section 3.1.7—

any cancellation of the Customer Order by Merchant

HK $100 (per order)

 

Booloopz Terms Section 3.1.26—

failed to comply with Booloopz’s goods packaging standards or packing guidelines (in sole opinion of Booloopz)

HK $100 (per order)

 

Schedule 3 — Party B does not take the initiative to cancel incomplete orders which caused by out of stock.

HK $200 (per order)

Schedule 1 — Merchant Delivery arrangement used for items not falling under Schedule 4 (Merchant Delivery – Exempted Products) without Booloopz’s prior approval

HK $100 (per SKU / order, as applicable)

 

Important Note:

If a Merchant’s Products are found to have violated the same regulations or guidelines in a subsequent product inspection, the penalty charge shall be calculated at a rate of two (2) times of the penalty charge for the previous violation (excluding violations under Table 3).

Booloopz reserves the right to make changes to this Schedule 3 (Penalty Charges) from time to time without providing any prior notification. The amended general terms and conditions are effective from the date they are notified to Merchant. Merchant’s continued use of Booloopz’s services and/or placement of the Products on Booloopz shall represent Merchant’s unconditional acceptance of the latest version of Schedule 3 (Penalty Charges).

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