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Prevailing Terms
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Definitions
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Registration; Authentication; Activation
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License and access
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HDT’s Representations, Warranties and Undertakings
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Rights and obligations of HDT
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Seller’s Representations, Warranties and Undertakings
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Rights and obligations of Seller
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Risk and title; Refunds and Returns
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Limitation of Liabilities
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Fees and settlement
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Protection of intellectual property and confidentiality
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Term, effect and termination of this Agreement
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Notice
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Governing law and dispute resolution
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Miscellaneous
1. Prevailing Terms
In the event of any conflicts or inconsistencies between the terms of this Seller T&C and any other terms incorporated by reference in relation to the use of the Services (including the Marketplace Terms of Use), the provisions of this Seller T&C shall prevail.
1.1
2. Definitions
Unless otherwise specified, the following terms shall have the following meanings in this Agreement:
“Applicable Law” means any (i) acts, ordinances, rules, regulations, by-laws, orders, wards, notices, directives, codes and proclamations or similar legislative or delegated legislative requirements; (ii) local government regulations, regional plans, district plans, regulations, by-laws, declarations, ministerial directions and other subordinate legislation; (iii) certificates, licences, consents, permits, approvals and other requirements of regulatory authorities; (iv)mandatory codes, standards and guidelines; (v) data privacy or data protection laws; (vi) applicable requirement of the common law; and (vii) applicable writ, order, injunction or judgment.
“Applicable Taxes” means any and all sales, goods and services, use, excise, premium, import, export, value added, consumption and other taxes, regulatory fees, levies (including environmental levies) or charges and duties assessed, incurred or required to be collected or paid for any reason in connection with any advertisement, offer or sale of products or services by Seller on or through or in connection with the Services.
“Card” means any debit, credit or bank card.
“Intellectual Property Rights” means rights in, without limitation, (i) patents, registered designs, design rights, copyright (including rights in computer software), database rights, trademarks, service marks, logos, moral rights, trade or business names, domain names, confidential information and knowledge and rights protecting goodwill and reputation, in all cases whether registered or unregistered; (ii) all other forms of protection having a similar nature or effect anywhere in the world to the right described in (i); and (iii) applications for or registrations of any of the above rights described in (i) or (ii).
“Payment Services Agreement” means the payment services agreement between HDT and the Payment Services Provider relating to the Payment System.
“Payment Services Provider” means the third party service provider authorised by HDT to provide the Payment System.
“Payment System” means the payment gateway and/other payment services provided by the Payment Services Provider and made available on Marketplace to facilitate sale and purchase transactions conducted through the Services.
“Registered User” means a user of Marketplace who has a User Account, and is able to make purchases on the Website but not allowed to make any sales offerings unless registered as Seller pursuant to the Seller T&C.
“Seller Offerings” means such travel and tourism related products and services listed by the Seller on the Website, and offered for sale to Registered Users through the Services;
“Services” means the e-commerce services provided by HDT through the Website, to users who have successfully registered as Seller(s) in accordance with Clause 3, to facilitate the Sellers’ sale of the Seller Offerings through the Website.
“User Account” means the registered account of a Registered User on the Website.
2.1
3. Registration; Authentication; Activation
As a condition for you to market, advertise or sell any products and/or services on the Website, you must:
(a) complete the registration form to register you as a Seller (and registration for the Services), by providing all requested information, including but not limited to, the details of the company/business entity, and the full name, identification details, email address, contact number and address for Seller’s primary contact person; and
(b)submit all required supporting documentation for the registration, including but not limited to, Seller’s valid licence issued by the relevant authority for the Seller to carry on business in the travel and tourism industry, Seller’s tax registration certificate (if any), and trademark registration certificate (if applicable).
3.1
You hereby authorise HDT to use any information collected by HDT during or after the registration process regardless of whether such information is provided by you or independently sourced to verify your registration information for the purposes of authentication. Prior to registering you as a Seller and throughout the term of this Agreement, HDT shall have the right, from time to time and in its sole and absolute discretion, to verify and authenticate any information provided by you under this Agreement or otherwise in connection with the Services. You shall provide any information requested by HDT and otherwise cooperate with HDT in connection with such verification and authentication processes.
3.2
Notwithstanding any other provision of this Agreement, the acceptance of your application for registration as a Seller to sell Products on the Website shall be subject at all times to the sole and absolute discretion of HDT. HDT reserves the right to reject any registration application made by you and to refuse to provide the Services to you and terminate this Agreement for any reason, in its sole and absolute discretion without being obliged to provide you with any reason or notification.
3.3
Prior to registering you as a Seller, if: (a) the registration information provided by you is false, inaccurate or incomplete; (b) you do not promptly notify HDT of any changes to your registration information; (c) you are otherwise in breach of this Agreement; or (d) HDT in its sole and absolute discretion is not satisfied with the responses or information gathered during the verification and authentication process or with the results of such verification and authentication, then HDT may notify you and either immediately terminate this Agreement, or, at its sole discretion, provide a time period during which you may correct any incorrect information or provide any outstanding information. If such correction or provision fails to occur within the specified time frame, you shall be deemed to have withdrawn your application to be registered as a Seller and rejected the use of the Services, and HDT shall have the right to terminate this Agreement immediately. HDT is under no obligation to provide you with any reason for its termination of this Agreement under this Clause.
3.3
3.4
Provided that you have complied with your obligations under this Clause 3 and HDT has not notified you of its refusal to provide the Services or its termination of this Agreement, HDT shall activate the Services for you as a Seller.
3.5
Before activation of the Services for you as a Seller, you shall not use your Marketplace User Account to conduct any marketing or selling activities. Any transaction conducted before the activation of the Services shall be null and void and HDT will not be obliged to facilitate any such transaction. A breach of this Clause 3.6 shall be a material breach of this Agreement and HDT shall have the right to immediately terminate this Agreement without any prior notice to you.
3.3
3.6
4. License and access
Subject to Seller’s successful registration for the Services and ongoing compliance with the terms of this Agreement, HDT grants Seller a limited, non-exclusive, non-transferable, non-sublicensable licence to access and make use of the Services during the term of this Agreement. This licence does not include or extend to any resale, use on behalf of a third party of the Services or its contents; any collection and use of any product listings, descriptions, or prices; any derivative use of the Services or its contents; any downloading or copying of account information for the benefit of another person; or any use of the Services in conjunction with any data mining tools, robots, or similar data gathering and extraction tools.
3.3
4.1
All rights not expressly granted to Seller in this Agreement are reserved and retained by HDT, its affiliates or its licensors, suppliers, publishers, rights holders, or other content providers. The Services, or any part of the Services, may not be reproduced, duplicated, copied, licensed, sold or resold without HDT’s express written consent.
3.3
4.2
5. HDT’s Representations, Warranties and Undertakings
The Services are provided on an "as is", “where-is” basis. HDT makes no other representations or warranties of any kind, express or implied, including without limitation: (a) implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement; (b) that the Services will meet Seller’s requirements, will always be available, accessible, uninterrupted, timely, secure or operate without error; (c) that the Services, or the offer and sale of Seller’s products using the Services, complies with applicable law; (d) that information, content, materials or products included or available through the Services will be as represented by any Registered User, available for sale at the time of listing, lawful to sell, or that any Registered User will perform as promised; (e) any implied warranty arising from the course of dealing or usage of trade; (f) any implied obligation, liability, right, claim or remedy under any contract or agreement; and (g) any obligation, liability, right, claim or remedy in tort whether or not arising from the negligence of HDT, in equity, or otherwise. To the fullest extent permissible under Applicable Law, HDT disclaims any and all such representations and warranties.
3.3
5.1
6. Rights and obligations of HDT
HDT shall be responsible for providing the Services and maintaining the normal operation of the Services. HDT shall also provide timely assistance to Seller in relation to issues arising out of Seller’s use of the Services. HDT may, from time to time, set out certain technical or other requirements applicable to Seller’s use of the Services. Seller agrees that it will comply with, and will not attempt to circumvent or breach, any such requirements.
3.3
6.1
Without prejudice to any other rights that HDT may have in this Agreement, HDT reserves the right in its sole and absolute discretion to refuse listings or to immediately remove any listings which HDT objects or to suspend or terminate the Services if HDT regards Seller as making inappropriate use of the Services.
3.3
6.2
HDT may, without prior notice to Seller, take such measures as deleting, screening or unlinking the following information:
(i) objectionable material, feedback, ratings, inaccurate listings, inappropriately categorised items, unlawful items or items prohibited for listing on the Services;
(ii) malicious or fraudulent information, including for evaluation or feedback;
(i) information which seeks to disturb or has already disturbed the normal functioning of the Services; or
(ii) information which may infringe the lawful rights and interests of others, including Intellectual Property Rights, confidential business information and other non-public (or previously non-public) information.
3.3
6.3
HDT shall have the sole and absolute discretion to manage, administer and amend all aspects of the Services, including the appearance, organisation, layout, categorisation, display, user interface, and promotion of Seller Offerings. Seller acknowledges and agrees that it has no right to control, manage, administer or amend any aspect of the Services unless otherwise agreed to by HDT.
3.3
6.4
Seller acknowledges and agrees that HDT shall be entitled to provide information related to Seller and to any relevant transactions conducted using the Services to any competent authorities or as otherwise required by applicable legal or judicial proceedings.mIf a court finds that Seller has committed an illegal act while using the Services or if HDT has sufficient evidence to suspect that Seller has committed an illegal act, HDT shall be entitled to terminate this Agreement immediately without any prior notice to Seller and to make a public announcement to this effect including notifying the relevant authorities.
3.3
6.5
HDT shall have the right to review each transaction conducted by Seller using the Services but this shall in no event be construed as an obligation of HDT to perform such review and Seller acknowledges and agrees that any such review shall not be deemed to be an endorsement by HDT of the relevant transaction conducted by Seller using the Services. Seller shall fully cooperate with HDT in the conduct of any such review.
3.3
6.6
7. Seller’s Representations, Warranties and Undertakings
As of the date that Seller submits the registration for the Services, and continuously until the expiration or termination of this Agreement in accordance with its terms, Seller represents, warrants and undertakes as follows:
(i) Seller is legally capable of entering into this Agreement and being bound by it;
(ii) the contact information for Seller’s contact person identified in Seller’s User Account is true and accurate, and such contact person is authorised to represent Seller in connection with its sale and purchase activities conducted through the Services. Seller shall immediately notify HDT in writing if there is any change in the contact information for Seller’s contact person;
(iii) Seller possesses all registrations, licences, certifications and other approvals that are necessary for it to sell the Seller Offerings using the Services and Seller’s User Account in the manner contemplated and to otherwise operate its business, including a business licence, tax registration certificate, trademark registration, and all such registrations, licences, certifications and other approvals are valid;
(iv) Seller’s use of the Services and sale of Seller Offerings through Seller’s User Account will comply at all times with this Agreement and does not and will not violate any Applicable Laws;
(v) Seller has provided true, valid and complete information for the purpose of its registration for the Services, and will promptly update HDT if any such information has changed;
(vi) Seller shall promptly comply with any direction or notice issued by HDT in relation to the Services; and
(vii) Seller warrants that it has the legal capacity to use Seller’s User Account, which shall be used in accordance with this Agreement and all Applicable Law.
3.3
7.1
8. Rights and obligations of Seller
Seller shall be responsible for:
(i) providing Seller Offerings to Registered Users through Seller’s User Account in accordance with the Agreement;
(ii) managing the refund and returns process in accordance with the Marketplace Refunds and Returns Policy;
(iii) providing customer support services to Registered Users; and
(iv) providing HDT with access to transaction data in accordance with the terms of this Agreement.
3.3
8.1
Seller is prohibited from gifting, lending, transferring or otherwise permitting any other person to use the Services, except that Seller may allow its employees to use the Services, subject to Clause 8.1. To the extent permitted by Applicable Law, Seller agrees to accept responsibility for all activities that occur in relation to its use of the Services, and shall be responsible for all Seller Offerings offered through Seller’s User Account, whether by Seller or by any permitted or non-permitted third parties.
3.3
8.2
Seller must take all necessary steps to ensure that any passwords, codes or information in connection with the Services are kept secure and must inform HDT immediately if it has any reason to believe that the Services are being, or are likely to be, used in an unauthorised manner. Prior to the receipt of such notice by HDT, HDT shall not be liable for any transaction conducted via Seller’s User Account.
3.3
8.3
Seller is responsible for ensuring that the information it provides to HDT are correct and complete at all times, and for promptly informing HDT of any changes to the information it has provided to HDT under this Agreement or in connection with the Services.
3.3
8.4
Seller shall be solely responsible for all Seller Offerings and shall guarantee that the quality of such Seller Offerings comply with any applicable standards and provisions under Applicable Law as well as the relevant product description provided by Seller via the Services. Seller must have the legal capacity to sell Seller Offerings via the Services, and warrants and undertakes that the information released by Seller via the Services (including but not limited to information on goods or services or information on discounts) will be true, accurate, legal and valid and that there will be no infringement of any Applicable Laws or the legitimate interests or rights of any third party.
3.3
8.5
If a dispute arises in relation to such Seller Offerings, Seller releases HDT (and its parent company, affiliates, associate companies and their respective employees, representatives and agents) from any and all claims, demands and damages (actual, direct, consequential or otherwise) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such dispute and Seller shall indemnify HDT (and its parent company, affiliates, associate companies and their respective employees, representatives and agents) from and against any claim, demand and damages arising from any such dispute. HDT does not guarantee the legality, authenticity or quality of goods listed for sale via the Services, nor does it guarantee Seller’s ability to complete a transaction with a buyer. HDT is not liable to compensate or indemnify Seller for any loss suffered by Seller as a result of Seller’s use of the Services.
3.3
8.6
Seller shall be responsible for the collection, reporting and payment of any and all Applicable Taxes, except to the extent HDT expressly agrees to receive taxes or other transaction-based charges, if applicable. All fees payable by Seller to HDT under this Agreement are exclusive of any Applicable Taxes, except where otherwise expressly stated to the contrary, and Seller will be responsible for paying HDT any and all Applicable Taxes imposed on such fees.
3.3
8.7
The following items must not be listed on the Services by Seller:
(a) offensive material, including material that incites racial hatred or promotes discrimination based on race, sex, religion, national origin, physical ability, sexual orientation or age;
(b) obscene material including pornographic material;
(c) items that infringe another party's copyright, patent, trademark, design right, database right, or other Intellectual Property Rights or other proprietary right;
(d) items whose sale, distribution or offering for sale is prohibited by any Applicable Law;
(e) items whose sale is subject to export restrictions;
(f) any other types of products that in HDT’s discretion are to be excluded from listing and/or sale using the Services.
3.3
8.8
In addition to the terms of the Marketplace Terms of Use, Seller agrees that it shall not:
(a) replicate or replace any features or experiences accessible on the User Account or Marketplace;
(b) conduct promotional or cross-promotional activities on third party platforms using Seller’s User Account without HDT’s express prior written consent;
(c) use an unreasonable amount of bandwidth;
(d) cache or store any Registered User’s content other than for reasonable periods of time and in order to provide Seller’s services to such Registered User;
(e) use Seller’s User Account for any purpose or in connection with any application that constitutes, promotes or is used with any spyware, adware or any other malicious program or code;
(f) use Seller’s User Account in any manner or for any purpose that breaches any Applicable Law or regulation, or any rights (including intellectual property and privacy rights) of any third party;
(g) use Seller’s User Account in any manner that adversely affects the stability of Marketplace, including in relation to breaches of any access rate limits and the use of any unauthorised third party tools, services or plug-ins on the Seller’s User Account or the Website;
(h) sell, lease or sublicense Seller’s User Account for any reason; or
(i) use Seller’s User Account or offer or perform Seller Offerings in a manner that is contrary to HDT’s business, reputation or operational interests.
3.3
8.9
Seller agrees that it shall not use any data or information available or obtained via the Services for any purpose other than those set out in this Agreement. Without the prior written consent of HDT, no information available via the Services shall be reproduced, disseminated or used except as permitted under this Agreement.
3.3
8.10
Where Seller collects, or receives from HDT any personal information of other Registered Users during the use of the Services and otherwise under this Agreement, Seller shall only process that personal information in compliance with the terms of this Agreement and all applicable data protection laws.
3.3
8.11
Seller acknowledges that its access to the Services and the personal information of other Registered Users is conditioned upon its compliance with the Privacy Policy and all Applicable Laws, including data protection legislation and the terms of this Agreement. As between HDT and Seller, HDT shall be the “data user” (as the term is defined under the Malaysian Personal Data Protection Act) in respect of all personal information of Registered Users, whether collected by HDT or Seller (the “Registered User Data”). For the avoidance of doubt, HDT shall be the owner of the Registered User Data. HDT hereby grants Seller a non-exclusive, revocable, non-transferable and royalty-free license to the Registered User Data provided by HDT hereunder during the term of this Agreement.
3.3
8.12
Seller shall comply with the following obligations in respect of all Registered User Data, whether provided by HDT or collected directly from Registered Users:
(a) use the Registered User Data only as permitted under this Agreement and as otherwise necessary to perform Seller Offering;
(b) ensure that Registered User Data is appropriately flagged in Seller’s database so that it is capable of being identified as
Registered User Data and segmented or separated out as may be required;
(c) ensure that Registered User Data is processed in accordance with Applicable Laws and data protection legislation;
(d) notify HDT immediately where there are reasonable grounds to believe that Registered User Data has been accessed or acquired by any unauthorised person;
(e) not disclose Registered User Data to any person, except:
A. in accordance with express written instructions from HDT; or
B. where Seller can demonstrate that such disclosure is required by Applicable Law or any regulator having applicable jurisdiction, in which case Seller shall notify HDT prior to disclosing the Registered User Data except where prohibited by Applicable Law from doing so;