Clients Terms & Conditions
The SOW, any schedules, annexes, amendments and any supplemental agreements shall become the integral part of this Agreement.
aCommerce reserves the right to amend, modify, adjust and enhance these terms from time to time as it may deem fit and the same shall be notified to the Client by providing one month notice before any such amendment.
VALIDITY
This Agreement shall remain valid from the Effective Date until terminated as per Section 3.
PAYMENT OBLIGATIONS
2.1 The Client shall pay Service Fees by such method and into the aComerce Bank Account within the date as specified in the invoice issued under the Agreement.
2.2 The Service Fees are stated prior to the addition of any applicable taxes and shall be payable in full without set-off, deduction, withholding or counterclaim (except to the extent required by law).
2.3 PASS THROUGH COSTS – All applicable taxes shall be borne by the Client in addition to the Service Fees. In addition, if any Sales Channel or third party distribution partner modifies any of its service fee affecting the Service Fees, aCommerce shall notify the Client in writing within fifteen (15) days from such cost modification, thereupon, revising the Service Fees to the extent required.
2.4 Non-payment by Client is a material breach of their contractual obligations, amounting to right of aCommerce to suspension by providing a written notice of fifteen (15) days (“Suspension”) and thereafter Termination as per Section 3 (ii) of this Agreement.
2.5 Overdue payment is subject to a default interest rate of as detailed in the SOW.
2.6 In the event of suspension or termination, all the Service Fees and payments under the SOW shall become due immediately. Client shall pay up to the date of suspension or termination (i) all Service Fees due and costs incurred for the completed Services and work in progress, and (ii) any other additional amounts due, in good faith.
2.7 aCommerce shall have the right to set off, deduct or withhold relevant amounts from the Client’s account. aCommerce shall also have the right, at its sole discretion, to set off and deduct, from any and all amounts payable by aCommerce to the Client any and all amounts recoverable from or owed by Client to aCommerce under the SOW or under any other agreements or arrangements between the Parties or for any other reasons.
TERMINATION/ EXPIRATION
3.1 TERMINATION WITHOUT CAUSE – aCommerce has a right to terminate this Agreement, any SOW under this Agreement or a part thereof at anytime during the Term by providing thirty (30) days’ notice in writing.
3.2 TERMINATION ON CAUSE – Either Party may issue notice to terminate this Agreement, upon written notice to the other Party, if the other Party defaults in the performance of any provisions contained in this Agreement and if such default continues for thirty (30) days after the affected Party has given to the defaulting Party a written notice of the existence of such default.
3.3 This Agreement shall be terminated with immediate effect, without any requirement of notice upon the occurrence of the following events:
(i) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of either Party or if it becomes insolvent;
(ii) the Client novates, assigns, transfers all or any parts of its rights hereunder without prior written consent of aCommerce; or
(iii) the Client does not pay to aCommerce the amount due in accordance with Section 2; or (iv) the Client suspends, ceases, threatens to suspend, or ceases to carry on all or substantial part of its business.
3.4 The expiration of the term or the termination of this Agreement shall not affect:
(i) any accrued rights, remedies, obligations or liabilities of the Parties;
(ii) Client’s obligation to provide the Merchandise to aCommerce in order to facilitate the provision of Services under this Agreement prior to the expiration of the term or the Termination of this Agreement, unless the Parties agree otherwise;
(iii) any provisions in this Agreement, which by their nature extend beyond the expiration or Termination of this Agreement, including but not limited to:
- the delivery of the Merchandise which has existed before the date of Termination or expiration;
- the right to claim damages in respect of any breach of the Agreement which has existed at or before the date of Termination or expiration; and
- provision relating to Data Privacy and Ownership, Confidentiality, Non-Competition and Non-Solicitation.
3.5 In the event of termination or expiration of this Agreement, aCommerce will in good faith work with the Client to transition this arrangement with minimum disruption, subject to the obligations of the Client as under this Agreement. Where this requires any cost or commitment from aCommerce, aCommerce reserves the right to charge Migration Fee for this offboarding service. Further, where the Client requires ongoing access to any of the ad hoc Services or Data, such provision shall be subject to terms, conditions and fees to be agreed in good faith and governed by a separate SOW.
3.6 FORCE MAJEURE – If all or any part of either Party’s performance of its obligations under this Agreement is prevented, hindered or delayed or otherwise made impracticable by any event beyond the reasonable control of either Party (reason of a Force Majeure Event), the affected Party shall be excused from such performance during the continuance of any such contingency and for so long as such contingency shall continue to prevent, hinder or delay such performance; provided, that in the case of any such contingency, the affected Party shall endeavor to use its best efforts to overcome the cause and effect of such contingency; and provided, further, that if such Force Majeure event shall prevent the affected Party from performing its obligations hereunder for more than ninety (90) days, the other Party shall have an option to terminate this Agreement promptly upon giving a written notice to the other Party. Notwithstanding the provisions hereof, in every case, the affected Party claiming Force Majeure shall exercise all reasonable efforts to mitigate the extent of such delay or failure.
PROPRIETARY RIGHTS
4.1 Client shall provide all necessary rights to aCommerce over its Intellectual Property and to the extent required for providing Services under the Agreement. Client further consents to use of Client’s Content to provide the Services.
4.2 Client represents and warrants to aCommerce that all right, title, and interest in the Client Intellectual Property and Client Content is owned by the Client and the Client has all rights necessary to grant the rights contemplated by this Agreement.
4.3 Client provides consent to aCommerce to process the Raw Data belonging to the extent required for providing Services under the Agreement.
4.4 All the Analyzed Data created from the Raw Data belongs to aCommerce and aCommerce consents to provide such Analyzed Data to the Client as part of the Services during the Term of the respective SOW. The Analyzed Data provided to the Client shall remain the property of aCommerce and shall be considered as Confidential Information. The Client shall not use the Analyzed Data in any manner or for any purpose other than as mutually agreed by the Parties in writing.
4.5 aCommerce owns all right, title, and interest in and to the Platform, Services, aCommerce Content, and all related technology and aCommerce Intellectual Property. Subject to the terms of this Agreement, aCommerce grants to the Client a limited, royalty-free, revocable, non-exclusive, non-sublicensable, non-transferrable license to use the Platform, aCommerce Content, related technology solely for the purposes of Services during the Term of the relevant SOWs.
4.6 The Parties agree that the arrangement under this Agreement does not convey to the other Party any rights or licenses other than for fulfillment of their obligations under this Agreement. Upon Termination of this Agreement, all the Analyzed Data and proprietary information under this section shall belong solely to aCommerce and upon request by aCommerce, the Client shall return such Data.
DATA PROTECTION and DATA PRIVACY
5.1 Please refer to the Company’s Data Privacy Policy at https://www.acommerce.asia/privacy-policy/
5.2 Please refer to the Data Protecion Agreement of the Company which forms part of this Agreement and shall be updated from time to time as required to stay compliant with the governing laws and industry standards.
5.3 Any complaints in relation to data privacy must be addressed to: privacy@acommerce.asia
CONFIDENTIAL INFORMATION
6.1 The Parties acknowledge that any Confidential Information shared between the Parties under this Agreement, incidentally or through disclosure with or without indication of confidentiality during the execution of this Agreement, constitutes a valuable asset of and is proprietary to the Disclosing Party. Therefore, the Receiving Party shall not use such Confidential Information for the Receiving Party’s own or any third Party’s benefit, nor shall the Receiving Party disclose, transfer, exploit or make them available to any third Party, unless provided with the prior written consent of the Disclosing Party.
6.2 The Receiving Party may use the Confidential Information only for the purpose of performing its obligations under this Agreement, protecting them from unauthorized disclosure with the higher degree of care. The Receiving Party may further disclose the Confidential Information to third parties on a need-to-know basis only if bound by confidentiality obligations no less restrictive than those contained herein.
6.3 No obligation is imposed upon the Receiving Party with respect to any information or material which: (i) was available to the public or in possession of the Receiving Party prior to its receipt from the Disclosing Party or subsequently available without any confidentiality breach (iv) is received by the Receiving Party from a third party free to disclose them; or (v) is independently developed by the Receiving Party without any reference to the Confidential information.
6.4 The Receiving Party may disclose the Confidential Information upon judicial order or by any government authority with jurisdiction over the Receiving Party, but only to the extent that such disclosure is legally enforceable.
6.5 Upon the expiration or termination of this Agreement for any reason, each Party shall either promptly return or destroy all Confidential Information of the other Party without exclusions in all formats and types
REPRESENTATION AND WARRANTIES
7.1 Either Party hereby represents and warrants that:
(i) it is duly organized, fully authorized and validly constituted under applicable laws, to enter into this Agreement and to have full capability to carry out the provisions hereof (including but not limited to possessing all requisite rights for the performance of this Agreement);
(ii) this Agreement has been duly executed by the Authorized Representative of the Party and constitutes a legal, valid, binding and enforceable obligation,
(iii) this provision will survive after termination or expiration of this Agreement.
7.2 Client hereby further represents and warrants that:
(i) it has a good title to, and is the sole beneficial owner of the Merchandise supplied to aCommerce under this Agreement and has obtained and will maintain for the whole validity of the Agreement all necessary permits, authority, approvals and licenses for the sale and distribution of the Merchandise, solely bearing their costs.
(ii) the Merchandise will be free from defects in design, materials and workmanship and its packaging and labelling will meet all applicable legal standards and comply with all relevant laws.
(iii) that it maintains and shall remain solely responsible for obtaining and maintaining all the necessary licenses pertaining to the Merchandise. Further, it shall solely bear the costs of obtaining such licenses or permits.
(iv) there is no claim for infringement of Intellectual Property rights or any breach arising out of the manufacture, sale or use of the Merchandise and will immediately notify aCommerce if such a claim is made
(v) that, at no further cost to aCommerce, it will procure all licenses and consents to use any Intellectual Property rights of a third party which are necessary to provide or use the Merchandise;
(vi) any of the provided marketing or promotional content will not violate any law or regulation or be defamatory, obscene, counterfeit, harmful to minors or child pornography; and
(viii) all the provided codes will be clean and free from any commonly known viruses, Trojan horses, worms, time bombs, cancel bots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.
INDEMNITY AND LIMITATION OF LIABILITY
8.1 Client shall indemnify and hold harmless aCommerce, all its associated entities and its officers, without exclusions, at Client’s sole expense, from any and all (i) breach of any representation and warranty above; and (ii) third party claims (including all costs, without exclusions) brought against aCommerce under this Agreement, in so far as such claim is not a result of aCommerce’s failure to perform a specific provision under this Agreement; and (iii) failure by the Client to comply with any standard, regulations, law, decision, ruling or ordinance which the Merchandise or Client may be subject to.
8.2 Client further agrees to defend, indemnify and hold harmless aCommerce, all its associated entities, and its officers, without exclusions, at Client’s sole expense, from and against any and all product liability losses, costs, damages, Intellectual Property infringement, fees or expenses, without exclusions, arising out of or in connection with the use or sale of any Merchandise, including but not limited to, any actual or alleged injury, damage, death or other consequence occurring to any person as a result, directly or indirectly, of the possession, use or consumption of any Merchandise, whether claimed by reason of breach of compliance, warranty, negligence, product defect or otherwise, and regardless of the form in which any such claim is made. In the event of any such claim against aCommerce or any of its associated entities, or officers, aCommerce shall promptly notify Client in writing of the claim and Client shall manage and control, at its sole expense, the defense of the claim and its settlement.
8.3 The total liability of aCommerce under or in connection with this Agreement shall be limited up to one hundred thousand (100,000) Thai Baht (or currency equivalent) per occurrence but not exceeding one million (1,000,000) Thai Baht per calendar year or the total value of Merchandise invoice, whichever is lower, provided that, in no event shall aCommerce’s liability to Client arising from or relating to this Agreement exceed the amount of the invoice value of the Merchandise in aCommerce’s custody under this Agreement at the day of the event’s occurrence.
8.4 Nothing in this Agreement excludes or limits the liability of (i) the Client for the product liability; or (ii) either Party for death or personal injury caused by either Party’s negligence or fraudulent misrepresentation.
8.5 Notwithstanding the above, the Client acknowledges that that aCommerce does not have industrial or technical knowledge of the Merchandise and shall in no event be held liable for any inherent damages, defects, technical failure or malfunction of any Merchandise howsoever caused and, in particular, in the event that any seals and/or packaging of the Merchandise are compromised.
8.6 The Client remains solely responsible for any actions of its appointed third parties under this Agreement.
8.7 All claim shall be raised by the Client to aCommerce within the same fiscal year in which such loss or damage is occurred, failing which any right to such claims shall be forfeited.
8.8 The Client agrees to indemnify and hold harmless aCommerce from any claims, damages, liabilities, costs, and expenses, arising out of or related to the online media and promotional content to be publicized across all the channels, offline and online, that is developed by aCommerce on request of the Client. This indemnification shall apply to, but not be limited to, claims of copyright infringement, defamation, violation of privacy rights, or any other claim that might arise under this Agreement.
NON-COMPETE/NON-SOLICITATION
9.1 During the term of this Agreement and for a period of twelve (12) months after the expiration or termination of this Agreement, the Client or its affiliates shall, directly or indirectly, without the express written authorization of aCommerce, not employ or permit any company or business directly or indirectly controlled by the Client to employ, any person who is employed by aCommerce or any of its affiliates. Upon violation of this Clause, the Client agrees to pay aCommerce the amount equivalent to six (6) months base compensation of such employee as liquidated damages. For the exclusive purpose of this clause, an employee of aCommerce or any of its affiliates, shall be considered only those employees who are or have been in direct contact with the Client while working at aCommerce.
9.2 In addition, during the term of this Agreement and for a period of twelve (12) months after the expiration or termination of this Agreement, Client agrees that it will not engage in any business competitive to that of aCommerce.
GOVERNING LAW AND FORUM
This Agreement shall be governed by and construed in accordance with Law of the Kingdom of Thailand. The parties hereby submit to the jurisdiction of the relevant Courts of Thailand in Bangkok over any claim arising in the execution of this agreement.
SEVERABILITY
If the whole or any part of a provision of this Agreement is found to be invalid, unenforceable or illegal, it shall be deleted and the remainder of this Agreement shall remain in full force and effect. This Agreement shall prevail in the event of a conflict with any other agreements between the Parties with respect to the subject matter hereof. The failure of either Party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights.
RIGHTS OF THIRD PARTIES
Nothing in this Agreement, whether express or implied, is intended or shall be construed to confer, directly or indirectly, upon or give to any Person, other than the Parties hereto, any legal or equitable right, remedy or claim under or in respect of this Agreement or any covenant, condition or other provision contained herein.
NOTICES AND AUTHORIZED REPRESENTATIVES
All notices, demands, and other communications hereunder shall be in writing, given to the Authorised Representatives provided by each Party and shall be deemed given to the other Party when delivered by personal delivery, e-mail, or courier services with proof of delivery.
THIRD PARTY SERVICE PROVIDER
In order for aCommerce to provide Services under this Agreement, aCommerce engages various third party providers from time to time. aCommerce shall engage and disengage such third party providers at its own discretion and shall remain solely responsible for their Services as though being provided by aCommerce. If requested by the Client, aCommerce shall immediately provide details of such third party providers.
RELATIONSHIP
The relationship of the Parties is that of independent contracting Parties, and shall not be deemed to be any other relationship, including, without limitation, any agency, partnership, or joint-venture relationship, except where expressly provided otherwise herein. Each Party shall not present itself in any manner as acting in the other Party’s name, other Party’s trademark, or for the other Party’s account, except as expressly permitted otherwise herein. In particular, each Party shall not enter into any obligations for or on behalf of the other Party, nor issue any representations, warranties, or undertakings that are binding on the other Party, unless there are express written agreements between the Parties providing for the same.
DEFINITIONS
(a) aCommerce Bank Account means the designated bank account of aCommerce as detailed in the SOW or any of the following invoices.
(b) aCommerce Content means any proprietary information and details developed by aCommerce for the purposes of the Services that may or may not include Intellectual Property.
(c) aCommerce means the contracting entity as described in the SOW
(d) Agreement means this Agreement, including the SOW, its Schedules, Annexes, Amendments and any Supplemental Agreements.
(e) Analyzed Data means any data resulting from analysis of Raw Data, including but not limited to, historical reports, analysis and research results.
(f) Authorized Representative means persons listed by both Parties in the SOW and any replacement appointed by each Party from time to time.
(g) Client means the contracting entity as described in the SOW
(h) Client’s Content means any proprietary details provided by the Client to aCommerce for the purposes of the Services that may or may not include Intellectual Property.
(i) Client Intellectual Property means Intellectual Property owned by the Client that is or has been created independently from this Agreement (whether prior to the Effective Date or otherwise).
(j) Confidential Information means the content of this Agreement and all other information in any form or medium that is secret or otherwise not publicly available, including accounts, business plans, business methods, strategies and financial forecasts, tax records, correspondence, designs, drawings, manuals, specifications, customer, or sales information, technical or commercial expertise, software, formulae, processes, methods, know- how, trade secrets, Data, Raw Data, Analyzed Data, content, whether disclosed orally or in writing before on, or after the Effective Date, together with any copies, summaries or extracts of any of such information, and including information designated by the Party as being confidential.
(k) Customer means the ultimate buyers who buy Merchandise from Sales Channel.
(l) Data means recorded information, regardless of form or characteristics, of a scientific or technical nature.
(m) Disclosing Party means the Party providing any Confidential Information.
(n) Force Majeure Event means any event beyond the reasonable control of either Party that materially affects its ability to perform its obligations under this Agreement, including an act of God, fire, earthquake, war, Government declared calamities but excluding strikes, lock-outs or other industrial actions (whether of the affected party’s own employees or others), failure of supplies of power, fuel, transport, equipment, or other goods or services.
(o) Intellectual Property means any current or future intellectual property rights including patents, utility models, designs, design rights, copyright (including all rights of whatsoever nature in computer software and data), database rights, privacy rights, semiconductor topographies, trademarks, trade names, rights in logos and get up, service marks, domain names, trade secrets, know-how (including technical and commercial know-how), rights in confidential information and image rights, and all intangible rights and privileges of a nature similar analogous or allied to any of the previously mentioned rights, and in every case and any part of the world, whether registered or not, any applications for registration, any renewals, reversions or extensions of such rights, the right to sue for damages for past infringement, and all forms of protection of a similar nature which may subsist in any part of the world.
(p) Margin Reconciliation means the calculation of the adjustment required to account for the fact that sales were made at below the [RSP] and in order to maintain the agreed percentage margin on final sales price a reimbursement from the Client may be required.
(q) Margin Reimbursement means any additional charges due from the Client in order to maintain the agreed commercial terms once the final sales price is determined.
(r) Merchandise means all products or items of the Client that aCommerce will sell to Customers under this Agreement as listed in the SOW, which the Parties agree to mutually update from time to time.
(s) Migration Fee means any additional fees payable by Client to aCommerce for migration of Services, at the time of Termination of this Agreement, the terms and fee to be agreed between the parties through a separate agreement, provided that all fees will be subject to a minimum of a cost-plus formula.
(t) Platform means totality of aCommerce-owned, co-owned and -contracted software solutions that aCommerce and its clients use as an integrated solution or standalone to operate their business
(u) Point of Delivery means aCommerce Warehouse or any place/facilities instructed by aCommerce where aCommerce accepted the unload of Merchandise and signed the relevant delivery documents and return such documents to the Client or its representatives.
(v) Purchase Price means the price of Merchandise that aCommerce agrees to pay the Client for purchasing the Merchandise.
(w) Rate Card means the Schedule attached to SOW specifying fee of each service item.
(x) Raw Data means Data provided by the Client to aCommerce under this Agreement.
(y) Receiving Party means the Party to whom Confidential Information is made available by the Disclosing Party.
(z) Retail Selling Price (RSP) means the price at which aCommerce shall sell the Merchandises to Customers.
(aa) Sales Channel means an e-commerce website, marketplace, or any digital platform enabled by aCommerce capable of displaying, marketing, and selling Merchandise and Services in relation to this Agreement.
(bb) Selling Price means the price of Merchandise listed on the Sales Channel (after the deduction of any promotional discounts but before any vouchers).
(cc) Service Fees means the service charges agreed between the Parties, as set out in the SOW including but not limited to the services listed out in the Rate Card, claw back payments, interests, termination fees, other payment obligations and any amended fees.
(dd) Services means all services to be delivered by aCommerce to Client as listed in SOW and as amended from time to time, subject to mutual agreement between the Parties.
(ee) Shrinkage Variance means any net loss (counting both excess and loss) in inventory occurred in aCommerce Warehouse that is less than zero point two five percent (0.25%) of the total average inventory value each month in aCommerce Warehouse, shall be deemed as an operational margin of error and subject to no liabilities and penalties or as a cause to terminate this Agreement. The compensation thereof for each item lost shall be calculated from the average Purchase Price of all the items lost in the month.
(ff) Slow Moving Merchandise means any Merchandise that has been stocked in aCommerce Warehouse for equal to or more than sixty (60) days.
(gg) Statement of Work (SOW) means the binding document that specifies the scope of work, Service Fees, specific tasks, deliverables, timelines, and other essential details of engagement between the parties
(hh) Stock Count means a one hundred percent (100%) physical verification of the quantities and conditions of Merchandise held in aCommerce Warehouse. Such Stock Count shall be done annually.
(ii) Term means period starting from the Effective Date till the termination or expiration of this Agreement as per the details provided in this Agreement.
(jj) Termination Date means that subject to any other ongoing Services or migration plans, the date on which this Agreement ends, either by way of termination or expiration, and the final payment is made and no further Services under this Agreement shall be provided.
(kk) Voucher Reimbursement means any additional charges due from the Client from the share of vouchers utilized by Customers that are agreed to be paid for by the Client.
(ll) Warehouse means the warehouse space belonging to aCommerce or any third party, to be used for the purpose of this Agreement.