Merchant Agreement

BETWEEN

Intermedius OpenSupermall Sdn Bhd (Company No. 1144993-D) a company incorporated in Malaysia and having its address at A-2-6, Block A, Jalan 2/142A, Megan Phoenix, Jalan Cheras, 46000, Kuala Lumpur (hereinafter called "OpenSupermall") of the one part;

And

You, a valid and legal representative of a company incorporated in Malaysia (hereinafter referred to as “the Merchant”) of the other part;

WHEREAS:-

1. OpenSupermall is involved in inter-alia, the business of operation of website as online marketplace, provision of e-commerce services and e-commerce trading platform to merchants and/or traders to market, promote, offer, and sell, their products and/or services to purchaser via internet at the Website (collectively referred to as “the Service”). The provision of the Services are governed by the terms and conditions in the agreements executed or to be executed between OpenSupermall and The Merchant.
2. The Merchant is desirous of subscribing the Service and other related products and services provided by OpenSupermall to market, promote, offer, and sell, their products and/or services at the Website subject to and based on the terms and conditions as set out in this agreement.

1. Definitions and Interpretation

In this agreement unless there is something in the subject or context inconsistent with such construction or unless it is otherwise expressly provided:-

1. words importing the masculine gender shall be deemed to include the feminine and neuter gender;
2. words importing the singular number shall include the plural and vice versa;
3. words applicable to natural persons only shall include anybody or persons firm or partnership corporate or unincorporated;
4. the words "hereof", "herein", "hereon", "hereinafter" and "hereunder", and words of similar import, when used in this agreement, shall, where the context requires or allows, refer to this agreement as a whole and not to any particular provision of this agreement;
5. where an act is required to be done within a specified number of days after or from a specified date, the period is inclusive of and begins to run from the date so specified;
6. a period of a month from the happening of an event or the doing of an act or thing shall be deemed to be inclusive of the day on which the event happens or the act or thing is or is required to be done;
7. if the last day or deadline for performing any act by any party herein stipulated in this agreement shall fall on a non-Working Day, then such deadline shall be extended to the following Working Day;
8. any reference to statutes and rules made thereunder include all amendments which may be enacted from time to time;
9. where any party hereto is represented by a firm of solicitors, a notice served on such party’s solicitors by the other party or his solicitors shall be deemed served on such party and vice versa;
10. a ‘day’ or ‘month’ or ‘year’ shall be construed by reference to the Gregorian calendar; and
11. any reference to “pay”, or cognate expressions, includes payments made in cash or by way of valid bank drafts (drawn on a bank licensed to carry on banking business under the provisions of the Financial Services Act 2013 and/or Islamic Financial Services Act 2013) or effected through inter-bank transfers to the account of the payee or other forms of payment giving the payee access to immediately available funds.
12. the expression “Ringgit Malaysia” and the abbreviation “RM” shall mean the lawful currency of Malaysia;
13. the expression “the Parties” shall mean OpenSupermall and the Merchant whereas "the Party" shall mean any of them and for both expression shall include its heirs personal representatives successors-in-title and permitted assigns;
14. the expression “the Agreement” or any similar expression shall mean these presents and any supplemental agreement thereto as may be in force from time to time or at any time;
15. the expression “the Commencement date” shall means the date of this Agreement;
16. the expression “the Working Day” means any day (excluding Saturdays, Sundays and public holidays) on which banks in Kuala Lumpur and Selangor Darul Ehsan are open for business;
17. the expression “the Website” shall mean the website operated by OpenSupermall in providing the Services;
18. any reference to "writing", or cognate expressions, includes any communication effected by facsimile transmission, electronic mail or other comparable means;
19. the expression “Commission” shall mean the commission payable by the Merchant to OpenSupermall for the Service more particularly stated in Annexure 1 hereto excluding taxes and/or the banking charges imposed on OpenSupermall and shall include any revised Commission which may be agreed by both parties in writing from time to time;
20. the expression “Station” shall mean the Merchant that is appointed by the Website to receive order made by the purchaser and to deliver the product to the said purchaser on case by case basis. The Merchant may apply to be Station but subject to the approval and appointment of the Website;
21. all Recitals and Appendices hereto in this Agreement shall be read and construed as an essential part of this Agreement;
22. unless the context otherwise requires, a reference to any clause, sub-clause, paragraph or schedule is a reference to a clause, sub clause, paragraph or schedule (as the case may be) of or to this Agreement;

2. Subscription

2.1 The Merchant hereby subscribe to the Service in accordance with the terms of this Agreement and OpenSupermall hereby agrees to provide and render the Service to the Merchant for a term of one (1) year for the subscription fees as stated in Annexure 1.

2.2 This Subscription shall be effective as at the Commencement Date and shall remain valid and effective unless terminated in accordance with the Agreement. Upon this subscription, the Merchant shall provide all information that is required and requested by OpenSupermall.

3. Obligation of the Parties

3.1 The Parties hereby agree that:-

1. OpenSupermall shall act as a facilitator and online marketplace and e-commerce trading platform service provider to help the Merchant to market, promote, offer, and/or sell, their products and/or services to purchaser via internet at the Website;
2. OpenSupermall reserves the continuing right to reject, revise, or discontinue any of the Merchant’s products and/or services, at any time and for any reason in OpenSupermall’s sole discretion, and to terminate the Merchant’s products and/or services and to remove all references to the Merchant’s products and/or services from the Website; and redirect or delete any URL used in connection with the Merchant’s products and/or services;
3. The Merchant shall honor the products and/or services sold at the Website and deliver the same within the duration as provided by them and all the expenses, taxes, and the cost of delivery and shipping shall be borne by the Merchant. In the event that the Merchant oversell and/or unable to honor the sale of the products, OpenSupermall shall have the right to charge the Merchant penalty fees at the rate 15% of the total sale amount.
4. The Merchant shall from time to time upon the request of OpenSupermall, forward, furnish and provide a copy of the certificate, license, approval, consent and/or such other documents reasonably deems necessary by OpenSupermall in order for the Merchant to subscribe to the Service and/or trade at the Website;
5. OpenSupermall does not have any control over the products or services that are transacted by the Merchant and OpenSupermall does not have any onus or liability whatsoever to the products or services transacted. The Merchant shall at its own costs and initiative to ensure the services and/or products that is marketed, offered, and/or sold at the Website are of merchantable quality. In the event of any complaint lodged against the Merchant and/or the products and/or services provided by the Merchant, the Merchant shall fully abide and practice the return and refund policy that is provided by OpenSupermall and/or the Website from time to time;
6. The Merchant shall from time to time make good use of the promotional tool provided by OpenSupermall at the Website to promote the products and/or services to be sold and/or supplied by them;
7. The Merchant shall upload all information and particulars of the products and/or services to be sold and/or supplied by them onto the Website;
8. The Merchant shall ensure and hereby undertake that the price of their products and/or at the Website shall be competitive with the same product at any other marketplace website;
9. The Merchant shall not issue any seditious statement at the Website and/or provide any seditious product and/or services at the website;
10. In the event that the Merchant is appointed as Station by the Website, the Merchant shall ensure the product to be sold and deliver to purchaser is authentic and of good quality. ;
11. OpenSupermall shall have absolute discretion to decide, determine and/or allow the Merchant to use and/or utilise any function provided in the Website, and/or to give and/or route deals to any stations/merchants ;
12. Any electronic and/or web and/or online official store created at OpenSupermall by the Merchant shall be solely owned by OpenSupermall, and shall not be assigned and/or transfer to any third party.

3.2 Notwithstanding the provision of the Service by OpenSupermall and any of the terms of this Agreement to the contrary, the Merchant acknowledges that:-

1. Each party is an independent business entity and as such, OpenSupermall is not the partner, joint venture party, employee, agent or representative of the Merchant and OpenSupermall shall not incur any obligations on behalf of the Merchant which are not specifically authorized in this Agreement;
2. OpenSupermall is not acting in the capacity of a trustee, fiduciary party or escrow agent with respect to the Merchant's funds, but is acting only as a custodian.  The Merchant agrees that it shall not receive interest or other earnings on the funds handled or processed by OpenSupermall on behalf of the Merchant and that OpenSupermall shall be entitled to the interest accrued on such funds (if any);

4. Payments and Service Charges

4.1 The Merchant acknowledge that all payments made by purchaser for purchasing and/or subscribing to the Merchant’s products and/or services from the Website, shall be made to the authorized online payment gateway operated at the Website and OpenSupermall is irrevocably authorized by the Merchant to receive the payments on behalf of the Merchant.

4.2 The Parties hereby agree that upon receiving the payments from the authorized online payment gateway, the Merchant hereby irrevocably authorize the OpenSupermall to deduct any Commission from the payments receipt and shall thereafter remit the balance sum to the Merchant in accordance to Annexure 1 of this Agreement.

4.3 The Parties hereby agree that:-

1. in the event that OpenSupermall has not remitted any payment to the Merchant and OpenSupermall did not received such payment for that purchase from authorised online payment gateway or any licensed financial institution, due to whatsoever reason not attributed to OpenSupermall (including but not limited to fraudulent transaction, the receivership or winding-up of the authorised online payment gateway or licensed financial institution), OpenSupermall shall has no obligation to remit whatsoever payment for that purchase to the Merchant; OR
2. in the event that OpenSupermall has remitted payment to the Merchant but OpenSupermall did not received any payment from authorised online payment gateway or any licensed financial institution, and/or the payment is called back and/or reversed by the authorised online payment gateway or any licensed financial institution due to whatsoever reason not attributed to OpenSupermall (including but not limited to fraudulent transaction, the receivership and/or winding-up of the authorised online payment gateway or licensed financial institution), the Merchant shall fully refund the payment to OpenSupermall.

5. Release

5.1 The parties hereby agree that OpenSupermall shall not be held liable in any manner whatsoever in the event there is a dispute between the Merchant and any of the Merchant's end users and/or purchaser, unless it can be reasonably proven by the Merchant that such dispute arose, directly or indirectly, from the negligence, fraudulent act, default or breach and/or omissions by OpenSupermall in the provision of the services under this Agreement.

6. Warranty

6.1 The Merchant expressly provides that the Merchant has all necessary license, certificate, consent and/or approval from the relevant authority, intellectual property’s proprietor, and/or such other proprietor to offer, trade, sell, and/or to operate the Merchant’s business at the Website and the Merchant shall upon request from OpenSupermall, provide a certified true copy of such license, certificate, consent and/or approval.

6.2 OpenSupermall shall use its best efforts to ensure that requests for electronic debits and credits involving bank accounts, credit cards, and check issuances are processed in a timely manner however OpenSupermall makes no representations or warranties, whether expressed or implied, regarding the amount of time needed to complete processing of such transactions.

7. Disclaimer and Limitation of Liability

7.1 OpenSupermall will not be liable to the Merchant for any incidental, consequential, reliance, special or other indirect damages, including lost profits, business, goodwill or anticipated revenue, loss of data, downtime or business interruption, or increased cost of operations, or for exemplary or punitive damages arising out of the used of the Merchant’s product and/or services that is marketed, promoted, offered, and/or sold at the Website.

7.2 OpenSupermall will not be liable to the Merchant for any incidental, consequential, reliance, special or other indirect damages, including lost profits, business, goodwill or anticipated revenue, loss of data, downtime or business interruption, or increased cost of operations, or for exemplary or punitive damages arising out of or related to the Agreement or the Services whether or not such party has been advised of the possibility of such damages.

8. Indemnification

8.1 The Merchant shall indemnify and keep OpenSupermall, its holding company, subsidiaries, affiliates, officers, directors and employees harmless from and against any claims, lawsuits, investigations, penalties, damages, losses or expenses (including but not limited to legal fees and costs on solicitor to client basis) made or incurred by any third party due to or arising out of the products and/or services that is marketed, promoted, offered, and/or sold at the Website.

8.2 The defaulting party hereto agrees to indemnify and hold the non-defaulting party, its holding company, subsidiaries, affiliates, officers, directors and employees harmless from and against any claims, lawsuits, investigations, penalties, damages, losses or expenses (including but not limited to legal fees and costs on solicitor to client basis) made or incurred by any third party due to or arising out of the defaulting party's breach of any of the terms of this Agreement or the violation of any provisions of law in connection with the transactions contemplated under this Agreement.

9. Violations by the Merchant

9.1 If the Merchant engages in any of the following behavior, OpenSupermall shall be entitled, at its sole discretion, to limit the Service provided to the Merchant or immediately terminate the Service and this Agreement by notice in writing to the Merchant:

1. Using the Service to trade any sexually oriented or obscene materials or services in violation of OpenSupermall's policy;
2. Using the Service to trade any narcotics, other controlled or illegal substances, steroids or prescription drugs in violation of any laws;
3. Using the Service to trade for wagers, gambling debts or gambling winnings, regardless of the location or type of gambling activity;
4. Using the Service to trade any replica products or goods;
5. Using the Service to trade any firearms, ammunition, high capacity magazines, tasers, air guns;
6. Using the Service to trade any fireworks or pyrotechnic devices or supplies;
7. Attempts to tamper, hack, modify or otherwise corrupt the security or functionality of the Website;
8. Using the Service for money laundering activities;
9. Using the Service for pyramid scheme program;
10. Using the Service for any illegal or immoral activities, including but not limited to violate the Countries laws and/or Bank Negara Malaysia rules; or
11. Using the Service to trade, promote, sell and/or offer any product that requires approval, license, consent, and/or certificate from the relevant authority and/or proprietor, without the said license, consent, and/or certificate.

The Merchant and OpenSupermall agree that the damages that OpenSupermall will sustain as a result of the above behavior by the Merchant will be substantial, including (without limitation) fines and other related expenses from its payment processors and service providers and damage to its reputation, but may be extremely difficult and impracticable to ascertain and that damages may not be an adequate remedy for such breach by the Merchant. The Merchant further acknowledges that OpenSupermall shall be entitled to all equitable relief, including but not limited to injunctions and specific performance, in the event of any such breach or threatened breach by the Merchant.

10. Commission

10.1 The Merchant shall pay OpenSupermall the Commission as set forth in Annexure 1 of this Agreement. OpenSupermall shall be entitled to deduct all Commission payable to it from the funds received by OpenSupermall on behalf of the Merchant as set out in Clause 4 above.

10.2 All Commission will be assessed in the currency of the payment. The Merchant's account and all transactions are made and displayed in Ringgit Malaysia unless otherwise specified and may be subject to exchange rates.

11. Payment

11.1 The Parties hereby agree that payment and fund paid by purchaser shall be released to the Merchant in accordance to Annexure 1 of this Agreement and provided always that there is no claim for return and/or refund by purchaser for that respective transaction.

11.2 In the event of any claim for return and refund, OpenSupermall shall withhold the release of the payment and fund and shall proceed to resolve with the claim pursuant to return and refund policy of the Website, and shall upon the claim being resolved, release such balance of payment and fund, if any, to the Merchant.

11.3 The Merchant agrees that if any reversal occurs on a credit card funded payment made to its account, OpenSupermall will reverse the payment and debit the Merchant's account balance that is maintained with OpenSupermall to pay for the reversal. The Merchant shall not take any legal action against OpenSupermall due to non-payment as caused by this reversal. If there are insufficient funds in the Merchant’s account balance, the Merchant agrees to reimburse OpenSupermall through other means within 14 days of receipt of the notification in writing.

12. Warranties in respect of Merchant's Information and Product and Services

12.1 The Merchant is solely responsible for the Merchant's information and products and/or services and the Merchant acknowledges that OpenSupermall acts solely as a passive conduit for the online platform to market, promote, offer and/or sell the Merchant’s products and/or services. Notwithstanding the foregoing, OpenSupermall shall not use any of the Merchant's Information for any other purpose which is not related to the provision of the Service pursuant to the terms of this Agreement without the consent of the Merchant.

12.2 The Merchant shall use its best endeavor to ensure that the Merchant's Information and the Merchant's products and/or services that are transacted through OpenSupermall Service shall not:

1. be of poor and not merchantable quality;
2. be false, inaccurate or misleading;
3. be fraudulent or involve the sale of counterfeit or stolen items;
4. be related in any way to gambling and/or gaming activities, including but not limited to payment or the acceptance of payments for wagers, gambling debts or gambling winnings, regardless of the location or type of gambling activity (including online and offline casinos, sports wagering and office pools);
5. violate this agreement as defined by Clause 9 herein;
6. infringe on any third party's copyright, patent, trademark, trade secret or other property rights or rights of publicity or privacy;
7. violate any law, statute, ordinance, contract or regulation (including, but not limited to, those governing financial services, consumer protection, unfair competition, antidiscrimination, or false advertising);
8. be defamatory, trade libelous, unlawfully threatening or unlawfully harassing;
9. be obscene or contain child pornography;
10. contain any viruses, Trojan horses, worms, time bombs cancelbots, easter eggs or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or other personal information; or
11. jeopardize any reputation or liability for OpenSupermall or cause OpenSupermall to lose (in whole or in part) the services of OpenSupermall's ISP or other suppliers.

13. Confidentiality

13.1 All information, including but not limited to Confidential information that the Merchant may obtain from or through the Services and/or the Website in connection with or in the course of its use of the Service, whether intended or by accident, shall at all-time, regardless of whether this Agreement is still in effect or otherwise, be kept confidential and the Merchant shall not disclose such information or use the same, regardless of whether this Agreement is effective or terminated, other than disclosure to authorized third parties or as obviously contemplated under this Agreement or with OpenSupermall's express written consent.

13.2  All information that OpenSupermall may obtain from or through the Services and/or the Website in connection with or in the course of the provision of the Service, whether intended or by accident, shall at all-time, regardless of whether this Agreement is still in effect or otherwise, be kept confidential and OpenSupermall shall not disclose such information or use the same other than disclosure to authorized third parties or as obviously contemplated under this Agreement or with the Merchant's express written consent.

13.3 “Confidential Information” means any of the Party’s proprietary information, technical data, trade secrets, or know-how, including, but not limited to, business plans, research, product plans, Web Application, services, customer lists, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, or other business information disclosed by one Party to the other Party either directly or indirectly.

14. Intellectual Property Rights

14.1 The Merchant grants to OpenSupermall a non-exclusive, worldwide, royalty free, paid-up, perpetual, irrevocable, transferable and sub-licensable license and right to use, modify, reproduce, sublicense, publicly display, distribute, broadcast, transmit, stream, publish and publicly perform:-

1. the Merchant's name, logos, trademarks, service marks, domain names, and any audiovisual content, video recordings, audio recordings, photographs, graphics, artwork, text and any other content provided, specified, recommended, directed, authorized or approved to use by the Merchant (collectively referred to as "the Merchant IP"); and
2. any third party's name, logos, trademarks, service marks, domain names, audiovisual recordings, video recordings, audio recordings, photographs, graphics, artwork, text and any other content provided, specified, recommended, directed, authorized or approved for use by the Merchant (collectively referred to as "the Third Party IP") in connection with the promotion and resale of the goods and services in all media or formats now known or hereinafter developed ("License"). Any use of the Merchant IP or the Third Party IP as contemplated in this Agreement is within OpenSupermall's sole discretion.

14.2 The Merchant acknowledges and agrees that, as between the parties, OpenSupermall owns all interest in and to the Services, the Website, Customer Data, OpenSupermall trade names, logos, trademarks, service marks, domain names, social media identifiers, all data collected through or from the Website, all audiovisual content, video recordings, audio recordings, photographs, graphics, artwork, text or any other content created by OpenSupermall or at OpenSupermall's direction, or assigned to OpenSupermall, and any materials, software, technology or tools used or provided by OpenSupermall to promote, resell or distribute the goods and services and conduct its business in connection therewith (collectively referred to as "OpenSupermall’s IP").

14.3 Save and except with OpenSupermall’s written consent, the Merchant shall not use, sell, rent, lease, sublicense, distribute, broadcast, transmit, stream, place shift, transfer, copy, reproduce, download, time shift, display, perform, modify or timeshare OpenSupermall’s IP or any portion thereof, or use such OpenSupermall’s IP as a component of or a base for products or services prepared for commercial use, sale, sublicense, lease, access or distribution.

14.4 The Merchant shall keep OpenSupermall’s IP confidential, and shall not prepare any derivative work based on OpenSupermall’s IP or translate, reverse engineer, decompile or disassemble OpenSupermall’s IP. Merchant shall not take any action to challenge or object to the validity of OpenSupermall's rights in OpenSupermall’s IP or OpenSupermall's ownership or registration thereof.

14.5 Save and except as specifically provided in this Agreement, the Merchant and any third party assisting the Merchant with its obligations in this Agreement, are not authorised to use OpenSupermall’s IP in any medium without prior written approval from OpenSupermall.

14.6 The Merchant shall not include any trade name, trademark, service mark, domain name, social media identifier, of OpenSupermall or its affiliates, or any variant or misspelling thereof, in any trademark, domain name, email address, social network identifier, metadata or search engine keyword.

14.7 The Merchant shall not use or display any of OpenSupermall’s IP in a manner that could reasonably imply an endorsement, relationship, affiliation with, or sponsorship between Merchant or a third party and OpenSupermall. All rights to OpenSupermall’s IP not expressly granted in this Agreement are reserved by OpenSupermall.

15. Termination

15.1 This Agreement may be terminated as follows:

1. If a Party (hereinafter referred to as "the Defaulting Party"):
   1. shall hereto commit or permit any material breach of any of the obligations herein contained and on its part to be performed or observed and shall not have remedied such breach (if capable of remedy) within fourteen (14) days after written notice shall have been given to it by any other Party requiring such remedy;
   2. shall go into voluntary liquidation otherwise than for the purpose of reconstruction or amalgamation or an Order of Court is made for its compulsory liquidation or being an individual shall become bankrupt or have a receiving order made against any of his assets;
   3. shall enter into any composition or arrangement with its creditors;
   4. shall have a receiver appointed over the whole or any part of its undertaking or assets;
   5. shall suffer any encumbrances taking possession of or a receiver or trustee being appointed over the whole or any part of its undertaking, property or assets; or
   6. shall have a bankruptcy order and/or winding up order made against it or have a resolution passed for its winding-up, otherwise than for the purpose of a reconstruction or amalgamation previously approved by the other Party, then and in any such event (hereinafter referred to as an "Event of Default") the Party not in default (the "Non-Defaulting Party") shall be entitled (but shall not be obliged) to give notice in writing to terminate this Agreement to the Defaulting Party within fourteen (14) days from the date of which the Non-Defaulting Party becomes aware of the occurrence of the Event of Default. OR

15.2 Upon the termination of this Agreement, the following provisions shall apply:

1. Any pending transactions to be performed under the Service will be cancelled;
2. OpenSupermall shall continue to hold the Merchant’s funds for up to 180 days as appropriate to protect OpenSupermall against the risk of reversals. If the Merchant is later determined to be entitled to some or all of the funds in dispute, OpenSupermall will release those funds to the Merchant within 30 days after the expiration of 180 days. The Merchant will remain liable for all obligations related to its account even after such account is closed.

16. Remedies and OpenSupermall's Right to Collect From the Merchant

16.1 If any of the following events occur:

1. the Merchant commits a breach of any of the terms of this Agreement as provided herein;
2. OpenSupermall is unable to verify or authenticate any information provided by the Merchant to OpenSupermall and the Merchant refuses to co-operate or assist OpenSupermall to verify and authenticate such information;
3. OpenSupermall believes with reasonable cause that the Merchant's account or activities pose a significant credit or fraud risk to OpenSupermall; or
4. OpenSupermall believes with reasonable cause that the Merchant's actions may cause financial loss or legal liability for OpenSupermall or its users.

16.2 In addition and without limiting the above clause, OpenSupermall reserves the right to hold funds beyond the normal distribution periods for transactions it reasonably deems necessary to determine the dispute by purchase and/or authorised online payment gateway.

17. Compliance with Applicable Laws

17.1 The Merchant shall comply with and shall not contravene any and all applicable laws and regulations of Malaysia relating to the Service, the Website or otherwise, including but not limited to Personal Data Protection Act 2010, Consumer Protection (Electronic Trade Transactions) Regulations 2012, Communications and Multimedia Act 1998 and its subsidiary legislation, other Acts of Parliament, local by-laws, rules and regulations issued by relevant government bodies and/or authorities.

18. Assignment

18.1 Neither party shall transfer or assign its rights or obligations here under in whole or in part without the prior written consent of the other party, which consent, shall not be unreasonably withheld. Notwithstanding the aforesaid, OpenSupermall may assign all or any part of its rights and obligations hereunder or its rights, interest or obligations for the provision of the Products at any time to any of its affiliate which can sufficiently execute the obligations under the Agreement.

19. Representations

1. it has all requisite power and authority to enter into this Agreement and to carry out the transactions contemplated hereby;
2. it has the rights, licenses, permits and power to perform all obligations incurred by it under this Agreement;
3. the execution, delivery and performance of this Agreement are duly authorized;
4. this Agreement has been duly executed and delivered by it and is a valid and binding obligation of it; and
5. the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby do not conflict with or violate its constituent documents, any other contract or agreement to which it is a party, any applicable laws or any order or judgment of any court or governmental authority.

20. Notices

1. if sent by a local pre-paid registered or recorded delivery post, four (4) Working Days after it is posted;
2. if sent by electronic mail, twenty four (24) hours after e-mail is sent; or
3. if delivered by hand to the party to be served or his solicitors when receipt of the same is acknowledged by the party to be served or his solicitors on the duplicate of the same.

20.2 Any notice, request, consent, demand or other communication to be given to either party shall, if the same is to be posted, be addressed to the party to be served at his address mentioned in this Agreement hereto or his solicitors unless any party hereof shall have previously notified the others in writing of any other postal address to which notices, requests, consents, demand or other communication are to be sent in which case the same shall be sent to that address.

20.3 In proving such service it shall be sufficient to prove that personal delivery was made or that the envelope containing such notice was properly addressed and delivered into the custody of the postal authorities as a pre-paid registered or recorded delivery letter.

21. Force Majeure

21.1 If either party is temporarily unable by reason of Force Majeure or the laws or regulations of Malaysia to meet any of its obligations under the Agreement, and if such party gives to the other party written notice of the event within seven (7) days after such occurrence the obligations of the party as it is unable to perform by reason of the event shall be suspended for as long as the disabling situation continues.

21.2 In the event of a Force Majeure situation which hinders any party in the discharge of its respective obligations under the Agreement, the party claiming to be affected thereby shall promptly notify the other party giving the estimated extent and duration of such inability to perform its obligations hereunder and other reasonable full particulars and shall use its best endeavors to remedy the situation and the parties shall consult each other with respect to the appropriate measures to be taken.

21.3 The performance of any obligation or obligations suspended while Force Majeure is operative shall be resumed as soon as such Force Majeure event ceases. Any loss or damage or delays in, or failure of performance by either party hereto shall not constitute default hereunder or give rise to any claims for damages or loss of anticipated profits, if and to the extent that such loss, damage, delay or failure is caused by Force Majeure.

21.4 The term “Force Majeure” as employed herein shall include but not limited to acts of God, strike, lockouts or other industrial disturbances, wars, insurrection, epidemics, landslides, earthquakes, storms, lightning, floods, civil disturbances, explosions, and any other similar events not within the control of either party and which by the exercise of due diligence neither party is able to overcome.

22. Waiver

22.1 A party's failure to exercise or delay in exercising any right, power or privilege under this Agreement shall not operate as a waiver; nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof.

23. Variation

23.1 The Parties may be necessitated by any directive or regulation from any governmental or statutory authority having jurisdiction over the matters herein, to vary the terms, conditions and provisions of this Agreement or its accompanying Annexure by submitting a copy of the proposed variations to the other Party specifying a reasonable period in which the other Party is to provide written notice of acceptance or rejection of the proposed variations.

23.2 OpenSupermall reserves the right to update or revise the terms and conditions of this Agreement from time to time. OpenSupermall may give notice of such amendment to the Merchant and/or user in such manner as OpenSupermall deems appropriate. Continuation in the access or use of the Service and/or the Website signifies acceptance of the changes to the terms and conditions with regards to the Service and/or the Website and its use.

24. Applicable Law

24.1 This Agreement shall be governed by and construed in all respects in accordance with Malaysian Law and the parties irrevocably agree that the Courts of Malaya shall have exclusive jurisdiction in respect of any dispute, suit, action or proceedings which may arise out of or in connection with this Agreement.

25. Dispute Resolution

25.1 All disputes, controversies or differences which may arise between the parties out of, in relation to, or in connection with, the Agreement or breach thereof, shall be amicably settled by the parties, failing which the same shall be referred to arbitration under the Rules for Arbitration of the Kuala Lumpur Regional Centre for Arbitration which Rules are deemed to be incorporated by reference into this clause.

25.2 Notwithstanding Clause 25.1 above, the Merchant agrees that OpenSupermall shall have the exclusive right, at its sole option and for its benefit, to refer any dispute or difference arising out of or in connection with the Products or the Agreement including any question regarding its existence, validity or termination to the exclusive jurisdiction of the Courts of Malaysia.

25.3 For the avoidance of doubt, the right of OpenSupermall to refer any dispute or difference to the exclusive jurisdiction of the Courts of Malaysia in Clause 25.2 above shall be exercisable even if the Merchant has or has purported to commence arbitration proceedings under Clause 25.1 and is also exercisable in respect of such arbitration proceedings as are commenced or purported to be commenced. Where OpenSupermall has elected to refer any such proceedings to the exclusive jurisdiction of the Courts of Malaysia under this clause, the parties shall take all steps and do all necessary to ensure that any arbitration proceedings so initiated are stayed in favour of the legal proceedings.

25.4 For the avoidance of doubt, the right of OpenSupermall to exercise the option in Clause 25.2 arises each time there is a dispute or difference that is covered by Clause 25.1 and Clause 25.2 and shall not be fettered by any previous election made under Clause 25.2 and/or Clause 25.3.

26. Time

26.1 Time is of the essence of this Agreement.

27. Costs

27.1 Each party shall bear their own solicitors' costs in respect of this Agreement and the stamp duty incidental to this Agreement shall be borne by the Merchant.

28. Entirety

28.1 This Agreement sets forth and shall constitute the entire agreement between the parties hereto with respect to the subject matter hereof and shall supersede any and all promises, representations, warranties or other statements whether written or oral made by or on behalf of one party to the other of any nature whatsoever or contained in any leaflet, brochure or other document given by one party to the other concerning such subject matter. This Agreement may not be released, discharged, supplemented, amended, varied or modified in any manner except by an instrument in writing signed by each of the parties hereto. As from the date of this Agreement, all previous arrangements, agreements, compromise, commitments, negotiation and moratorium executed hereto shall be superseded by this Agreement.

29. Severance

29.1 Any of the terms conditions stipulations provisions covenants or undertakings contained herein which are illegal void prohibited or unenforceable in any respect under the law governing this Agreement or its performance, such illegality, invalidity or unenforceability shall be ineffective to the extent of such illegality voidness prohibitions or unenforceability without invalidating the remaining provisions hereof and any such illegality, voidness, prohibition or unenforceability shall not invalidate or render illegal void or unenforceable any other terms conditions stipulations provisions covenants or undertakings contained herein.

30. Headings

30.1 The titles and headings of the paragraphs of this Agreement are inserted and used for convenience and ease of reference only and are not intended to define, limit or describe or be part of or to affect the meaning or interpretation of this Agreement.

31. Binding Effect of Agreement

31.1 This Agreement shall be binding upon the respective heirs, personal representatives, successors-in-title and permitted assigns of the Parties hereto.