1. Definitions and Interpretation
1.1 The following terms when used in the Agreement (including these General Terms and Conditions) or any document referred to herein shall have the following meaning, unless otherwise specifically defined herein or therein:
“Agreement” means the ebayFood Merchant Registration Form to which these General Terms and Conditions are attached to, including any schedules, appendices or other attachments attached to any of the foregoing, including all amendments, additions, and variations thereto;
“Applicable Law” means any applicable law, statute, regulation, order, judgement, or guideline passed or issued by parliament, government or any competent court or authority in Malaysia existing at this time or in the future;
“Business Day” means any day other than a Saturday, Sunday or a public holiday in Kuala Lumpur, Malaysia;
“Contributions” has the meaning ascribed to it in Clause 6 of this General Terms and Conditions;
“Customer Account” means the Customer’s registered account(s) on the ebay Platform;
“Driver” means the party conducting delivery of the Products ordered by the Customers through ebay Food Platform;
“Effective Date” means the date of which ebay approves the ebay Food Merchant Registration Form submitted by the Merchant;
“Merchant Outlet” means a restaurant or place of business that is owned, managed, and registered by the Merchant to enable the ebay Food Services as can be amended and added from time to time based on the agreement of the Parties;
“Merchant Particulars” means the Merchant’s details set out in the Agreement;
“Merchant SOP” means Standard Operating Procedures for Use of ebay Food Services for Merchants, as can be amended from time to time at the sole discretion of ebay with or without any notification;
“Merchant Wallet” means the Merchant’s funds account(s) held with ebay to hold Transaction Funds;
“Net Sales” means the total price of the Products in the Transaction excluding any taxes (including but not limited to any sale and services tax): (a) after the deduction of any discounts from the Merchant on the ebay Food Platform; and (b) excluding, Merchant’s service charge, Merchant’s surcharge, and other fees (if any and as applicable) as recorded on ebay ’s or its affiliates’ system;
“Order” means the order of the Products made by the Customers on the ebay Food Platform;
“Parties” means, collectively, ebay and the Merchant and “Party” means either one of them;
“Products” means the food and/or beverages sold by the Merchant through ebay Food Platform;
“Service Fee” has the meaning ascribed to in Clause 7.1 of this General Terms and Conditions;
“ebay Platform” means e-commerce platform through mobile application or website (www.ebay .com.my) operated by ebay ;
“ebay Food Platform” means the food order and delivery platform operated by ebay on the ebay Platform for the provision of ebay Food Services;
“ebay Food Services” means a food order and delivery platform services where Merchant is able to sell its Products and the Customers can order the Products, through ebay Food Platform, where the delivery may be conducted by the Drivers or any other method as determined by ebay ;
“Transaction” means any transaction by the Customers of ordering and payment of Products from Merchant through ebay Food Platform; and
“Transaction Funds” means the total amount paid by the Customers for a Transaction through the ebay Food Services on the ebay Food Platform.
1.2 In the Agreement (including these General Terms and Conditions):
(a) a reference to a statutory provision shall include that provision and any regulations made in pursuance thereof as from time to time modified or re-enacted, whether before or after the date of the Agreement and shall include also any past statutory provision or regulation (as from time to time modified or re-enacted) which such provision or regulation has directly or indirectly replaced;
(b) a reference to “written” or “in writing” includes any means of visible reproduction;
(c) a reference to “including” shall be interpreted to mean “including, without limitation”;
(d) a reference to a “Clause” or “Schedule” is to a clause of, or a schedule to, these General Terms and Conditions (unless the context otherwise requires); and
(e) unless the context otherwise requires, words importing the singular shall include the plural and vice versa and words importing a specific gender shall include the other genders (male, female or neuter).
1.3 The headings in the Agreement (including these General Terms and Conditions) are inserted for convenience only and shall not affect the construction of the Agreement.
2. Scope
The Agreement, to which these General Terms and Conditions are attached, contains the terms for the provision of the ebay Food Services (which may be amended from time to time).
3. Term
The Agreement shall continue in full force and effect for 1 (one) year as of the Effective Date, and shall be automatically renewed for succeeding terms of 1 (one) year each unless either Party gives written notice to the other Party at least thirty (30) days prior to the expiration of any term.
4. Description of ebay Food Services
4.1 Merchant acknowledges and agrees that the ebay Food Services provided by ebay are limited to (a) referring Customers to Merchant; (b) as an intermediary between the Customer and the Merchant, accepting Orders and receiving payments from Customers on Merchant’s behalf; and (c) as an intermediary between the Customer and the Merchant, including communicating Orders and disbursing payments from Customers to Merchant. ebay may carry out changes to ebay Food Services, or suspend the ebay Food Services, without notice at its sole and absolute discretion.
4.2 ebay shall present on ebay Food Platform the range of Products offered by the Merchant, to the extent that it has been communicated to ebay and it meets the criteria determined solely by ebaymll and communicated to Merchant.
4.3 Merchant shall provide ebaymll with all information necessary for ebaymll to present the Products offerings on ebaymllFood Platform, including menus, Products, availability of Products at any Merchant Outlets, operating hours and location of Merchant Outlets, logo, images, prices, and company identity as required by ebaymll (“Necessary Information”). For the avoidance of doubt, in the event that the Merchant fails to provide ebaymll with the Necessary Information, ebaymll shall be entitled to use any information available to ebaymll, including any images relating to the Product on the ebaymllFood Platform. Any changes to such information must be communicated by Merchant to ebaymll at the latest seven (7) business days before the changes take effect.
4.4 Merchant shall verify the information published by ebaymll on an ongoing basis, and immediately notify ebaymll of any mistakes or inaccuracies (within 1 hour of discovering such mistakes or inaccuracies). For the avoidance of doubt, Merchant’s menu, Products, logo, images, prices, company identity and other relevant information of the Merchant may be published on the ebaymllFood Platform and other medias (including, but not limited to, Twitter, Facebook and Google AdWords campaign).
4.5 Merchant acknowledges and agrees that ebaymll does not provide transportation services, or act as the transportation provider, courier, postal services provider, deliver service provider, supplier of food and beverages, or the agent of any party. ebaymll makes no representations or warranties and does not ensure the quality, safety and/or legality of any Products. ebaymll does not guarantee the identity of any Customers or ensure that a Customer will complete a Transaction.
4.6 Merchant acknowledges and agrees that the actual contract for the sale of the Products is directly between Merchant and the Customers, and ebaymll is not a party to such contracts, and accepts no responsibility, liability, or obligations in connection with any such contract and any dispute arising out of any Product is between the Merchant and the relevant Customers only.
4.7 The Merchant is required to deal with any refund and/or claim settlement, including, but not limited to, chargebacks, resulting from the Transaction. ebaymll may assist the Merchant in the refund and/or claim settlement procedures and the Merchant further agrees that ebaymll may, at its sole and absolute discretion, refund the Customer the Transaction Funds without the prior approval of the Merchant.
4.8 ebaymll reserves the right to suspend a specific Transaction and/or a Customer Account and/or the Merchant Wallet and/or the ebaymllFood Services if ebaymll believes that any of the following circumstances has occurred:
(a) where ebaymll believes it is necessary or desirable to protect the security of the Customer Account and/or the Merchant Wallet and/or the ebaymllFood Services;
(b) ebaymll believes that a Transaction is (i) made in breach of the terms hereof or in breach of the security requirements of the Customer Account and/or the Merchant Wallet and/or the ebaymllFood Services; or (ii) a suspicious, unauthorized or fraudulent transaction related to, including, but without limitation to, money laundering, terrorism financing, fraud or other illicit activities;
(c) if the Transactions are for the sale of goods and/or services which fall outside of the agreed Products or business activities of the Merchant or deemed to be against the Applicable Law;
(d) if the Merchant engages in prohibited activities as specified in the Merchant SOP or any other policies of ebaymll or any Applicable Law; or
(e) otherwise in connection with ebaymll’s compliance with any Applicable Law.
4.9 ebaymll, at its sole discretion, may provide periodic education to the Merchant on the development of the ebaymllFood Services, including any changes or addition of facilities of ebaymllFood Services.
4.10 ebaymll reserves the right to deduct the Service Fee that ebaymll is entitled to and the Contributions (if any) from the Transactions Funds for the provisions of ebaymllFood Services through ebaymllFood Platform.
4.11 If ebaymll provides any equipment, including, but not limited to, an Electronic Data Capture (EDC), to the Merchant in connection with the provision of ebaymllFood Services (the “Device”), the Merchant agrees that it shall be responsible for such Device and is obliged to return it to ebaymll in good condition after termination of ebaymllFood Services. Further details on the use of, technical and operational support and/or issues settlement related to the Device may be provided by ebaymll in the Merchant SOP and/or published by ebaymll in ebaymll Platform which shall apply and bind the Parties.
5. Obligations
5.1 The Merchant shall register as a merchant using the ebaymllFood Merchant Registration Form or in any other manner to be determined by ebaymll. The Merchant shall integrate the ebaymllFood Services into the Merchant Outlet and operate the same in accordance with ebaymll’s instructions and policies (as may be amended from time to time).
5.2 The Merchant shall not permit any Transaction of any Products or items that are prohibited and restricted under Applicable Law or ebaymll’s policies.
5.3 The Merchant shall retain records relating to a Transaction for at least seven (7) years from the date on which such Transaction occurred.
5.4 The Merchant shall conduct its business and operate the Merchant Outlet in compliance with Applicable Laws and shall ensure that its business activities are not prohibited by the Applicable Laws.
5.5 The Merchant shall at all times have all relevant licences and permits to conduct the Merchant’s business, including any food safety laws and regulations. If the Merchant is aware of any violations of its business or its business is found to be in violation of any Applicable Laws by the relevant authorities, the Merchant must notify ebaymll immediately (no more than one (1) hour upon receiving the notification).
5.6 The Merchant represents and warrants to ebaymll that:
(a) to its knowledge, it is not receiving funds in connection with any illegal, fraudulent, deceptive or manipulative act or practice and that the Merchant is not sending or receiving funds to or from an illegal source. To the extent that the Merchant becomes aware of any such transaction, the Merchant agrees to notify ebaymll immediately to suspend any such transaction and/or the Customer Account(s) and/or the Merchant Wallet;
(b) the information published on ebaymllFood Platform relating to the Products offerings satisfy all legal requirements, including all information relevant to the protection and welfare of Customers and any laws and regulations related to sales of food;
(c) the information provided by Merchant to ebaymll is current and accurate and does not violate any third party’s intellectual property rights;
(d) the Products provided, prepared and sold to Customers are of merchantable quality and safe for consumption, and their storage, production and preparation comply and will comply with all relevant retail, restaurant, and food safety regulations and the quality or criteria set by ebaymll and any Applicable Laws;
(e) it possesses all licences required by prevailing laws and regulations and that there are no ongoing criminal, bankruptcy or tax proceedings or other penalties outstanding in relation to Merchant’s business operations; and
(f) It will not ask for data and/or information from Customers or other parties through any means on behalf of ebaymll and/or its affiliates without prior written approval from ebaymll and / or its affiliates.
5.7 In the event any of the Products are spoiled, defective, or which results in food poisoning, allergies or other effects that will harm any Customer, Merchant will be fully responsible and/or legally liable for such incident and it shall release and indemnify ebaymll from any claims, damages or losses related to such matter.
5.8 Neither the Merchant nor any director or officer of the Merchant is an individual or entity (“Person”) that is or is owned or controlled by a Person that is currently the subject of any sanctions administered or enforced by the applicable governmental authority in Malaysia (collectively, “Sanctions”), nor located, organized or resident in a country or territory that is currently the subject of Sanctions. The Merchant shall not use the ebaymllFood Services in any manner that will result in a violation of Sanctions by any parties. The Merchant and its subsidiaries and affiliates have not knowingly engaged in, and will not engage in, any dealings or transactions with any Person or any parties, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
5.9 The Merchant agrees that it and its affiliates shall conduct business in compliance with Applicable Laws relating to anti-corruption laws and shall not take any action, directly or indirectly, that would result in a violation of such laws, including, but not limited to, providing, offering, or promising, directly or indirectly, anything of value to any governmental authority or government official that would result in a breach of any such laws. The operations of the Merchant and its affiliates shall be at all times in compliance with all material aspects with Applicable Laws relating to anti-money laundering and financial recordkeeping and reporting requirements.
5.10 The Merchant shall not:
(a) decode or do any reverse engineering of ebaymll or ebaymllFood Platform’s system;
(b) perform any actions that may cause damages and/or disruptions to ebaymll or ebaymllFood Platform’s system; or
(c) perform any actions that aim to duplicate, replicate and/or steal the information and/or data of ebaymllFood Services, ebaymll and/or the Customers.
5.11 The Merchant agrees to participate in ebaymllFood promotional and marketing activities, including co-funding campaigns (“Campaigns”) organized by ebaymll (“Promotions”). In the event that the Merchant wishes to withdraw from participating in the Promotions, the Merchant shall notify ebaymll’s customer services of its intentions and complete the opt-out form. ebaymll shall process the withdrawal request within fourteen (14) days from the receipt of the completed opt-out form.
5.12 The Merchant shall be responsible to keep confidential any and all identifications, passwords, personal identification numbers (PINs), or any other codes to access the Merchant Wallet. The Merchant shall be fully responsible for all activities that occur under its Merchant Wallet even if such activities or uses were not committed by the Merchant. ebaymll shall not be liable for any loss or damage arising from unauthorized use of the Merchant’s credentials or the Merchant’s failure to comply with this clause.
6. ebaymllFood Co-Funding Campaigns
Where the Merchant has participated in the Campaigns, the Merchant’s contributions to the Campaigns (“Contributions”) shall be based on each of the Net Sales recorded in ebaymll’s system. ebaymll shall notify the Merchant of its share of Contributions in respect of the relevant Campaigns via e-mail or any other means as may be determined at the sole discretion of ebaymll.
7. Fees and Taxes
7.1 In consideration for the ebaymllFood Services provided by ebaymll, Merchant shall pay ebaymll a service fee (“Service Fee”) as set out in the ebaymllFood Merchant Registration Form. The Service Fee shall be charged on each of the Net Sales based on a successful Transaction recorded in the ebaymll system. The Service Fee shall be exclusive of any service and sales tax (SST) and the Merchant shall be responsible for any taxes charged by ebaymll for the Service Fee.
7.2 Terms of the settlement of the Transaction funds after deduction of the Service Fee, Contributions (if any) and/or other fees (if any) will be further provided in the Merchant SOP and shall be subject to change at the sole discretion of ebaymll.
7.3 The Merchant hereby authorizes ebaymll and/or its affiliates to initiate debit or credit entries to the Merchant Wallet at any time by written notice to the Merchant, unless otherwise stipulated by Applicable Law, based on certain reasons, which include the following:
(a) to correct any errors in the processing of any Transaction and/or instruction provided by Merchant to ebaymll, including, but not limited to, double payout;
(b) where ebaymll has determined that the Merchant has engaged in any fraudulent or suspicious activity and/or Transaction;
(c) in connection with any rewards or rebates;
(d) in connection with any uncharged fees or Contributions (if any);
(e) in connection with the settlement of any Transaction dispute, including any compensation due to, or from, the Merchant; and
(f) any other reasons relevant to any Transaction as determined by ebaymll in the future.
7.4 ebaymll may, at its sole discretion, amend the Service Fee, Contributions or any other applicable fee or include any additional fee at any time by written notice to the Merchant.
7.5 The Merchant shall be responsible for all taxes, duties, fees and other charges arising out of, or associated with, the supply of the Products or its business (“Taxes”) and undertakes to pay all such Taxes in a timely manner. In the event that the Merchant does not pay Taxes, and such Taxes and (if applicable) any associated penalties are required to be paid by ebaymll, ebaymll shall be entitled to recover such amounts paid by ebaymll.
8. Intellectual Property Rights
8.1 ebaymll and/or its licensors reserve and shall retain its entire right, title and interest in all copyrights, trademarks and other intellectual property rights therein and relating thereto, except as expressly granted to the Merchant in the Agreement.
8.2 The Merchant grants ebaymll, for the term of the Agreement only, a worldwide, non-exclusive, royalty-free, non-transferable licence to copy, use and display any logo, trademark, trade name or other intellectual property owned by, or licensed to the Merchant for the purpose of implementing the Agreement. The Merchant hereby warrants and represents that it owns or has the right to use and sub-license any intellectual property which it uses or licenses for use to ebaymll.
8.3 Merchant represents and warrants that it owns or is the legal licencee of all intellectual property rights used under the Agreement, free from any infringement or violation of any third-party ownership or intellectual property rights, and that no other party will claim to have the same ownership of such intellectual property rights.
8.4 All reports, specifications, and other similar documents compiled or prepared in the course of the Agreement, including documents, materials produced in respect of the ebaymllFood Services and any derivation of any intellectual property rights granted by any Party shall be the absolute property of such Party throughout their preparation and at all times thereafter. For the avoidance of doubt, the intellectual property rights subsisting in all reports, specifications and other similar documents set out in this clause shall at all times remain vested in the relevant Party.
8.5 Each Party warrants to the other Party that it will not use any other Party’s trademark for any marketing activities, including, but not limited to, promotional activities without prior written consent from the other Party. Notwithstanding the above, ebaymll shall be entitled to use the Merchant’s trademark to promote the ebaymllFood Services and related promotion in all platforms across all media worldwide.
9. No Warranty
9.1 THE ebaymllFOOD SERVICES ARE PROVIDED “AS-IS” AND WITHOUT ANY REPRESENTATION OR WARRANTY, WHETHER EXPRESS, IMPLIED OR STATUTORY. ebaymll AND ANY OF ITS SUBSIDIARIES AND AFFILIATES, OFFICERS, DIRECTORS, AGENTS, JOINT VENTURES, EMPLOYEES AND SUPPLIERS SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. ebaymll DOES NOT HAVE ANY CONTROL OVER PRODUCTS THAT ARE PAID FOR THROUGH THE ebaymllFOOD SERVICES. ebaymll DOES NOT GUARANTEE CONTINUOUS, UNINTERRUPTED OR SECURE ACCESS TO ANY PART OF THE FOOD SERVICES, AND OPERATION OF ebaymll SITE MAY BE TEMPORARILY SUSPENDED FOR MAINTENANCE OR UPGRADE OR INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE OF ebaymll’S CONTROL. ebaymll WILL MAKE REASONABLE EFFORTS TO ENSURE THAT ebaymllFOOD SERVICES ARE PROCESSED IN A TIMELY MANNER BUT ebaymll MAKES NO REPRESENTATIONS AND WARRANTIES REGARDING THE AMOUNT OF TIME NEEDED TO COMPLETE PROCESSING.
9.2 ebaymll shall not be liable for any of the following:
(a) any suspension or refusal to accept payments which ebaymll reasonably believes to be made fraudulently or without proper authorization;
(b) the payment instructions received contain incorrect or improperly formatted information;
(c) hardware, software, mobile device and/or internet connection is not functioning properly due to, including, but not limited to, viruses, disruptions or other forms of system disruption such as unauthorized access by third parties; or
(d) any circumstances as specified in Clause 4.8.
10. Confidentiality and Personal Data
10.1 Each Party shall keep confidential and shall not disclose to any person or use directly or indirectly for its own or any other person’s benefit (other than for the due performance by it of its obligations under the Agreement), any Confidential Information disclosed, made available or otherwise provided to the receiving Party by or on behalf of the disclosing Party. “Confidential Information” means any information having been designated in writing to be confidential or proprietary or if given orally, is confirmed promptly in writing as having been disclosed as confidential or proprietary or otherwise by the disclosing Party to the recipient including any Personal Data, all subscriber information (including viewing patterns, viewing details, quantity, time or duration of usage of equipment or viewing of the content), details (including contact details, telephone numbers, network configuration, location information, billing name, billing amounts, credit history and other payment details), information of a commercial, technical or financial nature relating to the Agreement, the disclosing Party or any of its affiliates including all trade secrets, know-how, show-how, patents research, development or technical information, confidential and proprietary product or information, intellectual property rights, business plans, operations or systems, financial and trading positions, details of customers, suppliers, debtors or creditors, information relating to the officers, directors or employees of the disclosing Party or any of its affiliates, marketing information, printed matter, rates and rate tables, contracts, all regardless of form, format or media whether machine readable or human readable, including written, oral or tangible form and also includes information communicated or obtained through meetings, documents, correspondence or inspection of tangible items. This clause shall not apply to any Confidential Information which at the time it is disclosed, made available or otherwise provided by the disclosing Party, is in the public domain and shall cease to apply to any information which subsequently becomes publicly available otherwise than as a consequence of any breach by the receiving Party.
10.2 The receiving Party may disclose Confidential Information to (a) its directors and employees to the extent that their duties will require them to have access to such Confidential Information, provided that the receiving party shall instruct such directors and employees to treat such Confidential Information as confidential and not use such Confidential Information for any purpose other than the proper discharge by them of their duties; and (b) its external auditors, lawyers and professional advisers, and the receiving Party shall ensure that the persons to whom such disclosure is made are contractually bound by the provisions of this clause by the incorporation of corresponding provisions of confidentiality in their employment and other applicable contracts.
10.3 The Parties herewith shall comply with their respective obligations as the Data User and the Data Processor as required under all Applicable Laws and the privacy policy available on ebaymll Platform in connection with any Personal Data in relation to the Agreement. For the purposes of the Agreement, “Personal Data” means personal data having the meaning ascribed that are under the control of Data User and in respect of which Data Processor is or is required to provide services for the performance of the Agreement; “Data Processor” means in relation to Personal Data, any person, other than an employee of the Data User, who processes the Personal Data solely on behalf of the Data User, and does not process the Personal Data for any of his own purposes; and “Data User” means a person who either alone or jointly or in common with other persons processes any Personal Data or has control over or authorizes the processing of any Personal Data but does not include a Data Processor.
10.4 The confidentiality obligations under this Clause 10 shall survive the termination of the Agreement, and/or until the Confidential Information enters the public domain.
11. Force Majeure
11.1 The Parties are released from responsibility to all obligations and delay of work as consequence of Force Majeure. “Force Majeure” means any extraordinary circumstances which is an unforeseeable, inevitable event and/or beyond reasonable control of the Parties including but not limited to epidemic or pandemic (except the epidemic/pandemic of Corona Virus Disease 2019 (Covid-19)), natural disaster, war, rebellion, aggression, sabotage, riot of mass, and existence of governmental regulations in monetary affairs which directly influence performance of the Agreement.
11.2 If either Party has delayed or is prevented from performing its obligations hereunder as a result of an event of Force Majeure, it shall promptly notify the other Party in writing as soon as possible after the occurrence of such an event of Force Majeure.
12. Termination
12.1 Each Party may terminate the Agreement immediately if:
(a) the other Party files a petition for bankruptcy, becomes insolvent, or makes any arrangement or composition with or assignment for the benefits of its creditors, or a receiver or an administrator is appointed for such Party or its business, or the Party goes into liquidation either voluntarily (otherwise than for reconstruction or merger) or compulsorily;
(b) upon the occurrence of a material breach of the Agreement by the other Party or if the non-defaulting Party believes that such breach is capable of remedy and provides opportunity to remedy, but the breach is not remedied within 30 (thirty) days from the date of notice of such breach by the non-defaulting Party; or
(c) ebaymll suspects that there is any unlawful, illegal and/or fraudulent act committed by Merchant and/or Merchant’s employees or agents;
(d) the other Party violates or fails to comply with any Applicable Law in a manner that may result in adverse effects on the non-defaulting Party in any material respect, including any food safety or other regulations relating to restaurants and/or meals; or
(e) by giving the other Party 30 (thirty) days’ prior written notice for any or no reason.
12.2 The termination of ebaymllFood Services shall not relieve or limit either Merchant or ebaymll from its obligations, responsibilities and liabilities accruing prior to such termination.
13. Assignment
13.1 The Merchant may not assign any of its rights under the Agreement to any person without the prior written consent of ebaymll.
13.2 The Merchant may not permit other persons (other than Customers) to use the ebaymllFood Services without the prior written consent of ebaymll.
13.3 The provisions of the Agreement shall be binding upon the Parties and their respective successors and permitted assigns.
14. Relationship of the Parties; Driver as Independent Contractor
14.1 Nothing in the Agreement shall be construed to create a partnership, joint venture or agency relationship between the Merchant and ebaymll. Neither Party has authority to enter into agreements of any kind on behalf of the other Party.
14.2 The third-party agreement pursuant to which Drivers agree to provide food delivery service to Customers is an independent agreement between the Customer and the Driver, who is not an employee or agent of ebaymll. ebaymll is only intermediary between the Customer and the Driver.
14.3 ebaymll does not provide any transportation services and shall not be held responsible whatsoever to any of the Parties for any Driver’s action, negligence, failure, lateness, or rejection to provide transportation service.
14.4 ebaymll does not and shall not guarantee the safety, reliability, compatibility, or capability of the Driver during the delivery of his/her obligation in delivering the Products from Merchant Outlets to the Customer. Therefore, Merchant hereby holds ebaymll harmless and discharge ebaymll from any and all responsibility, claim, cause, or damage which occurs from such delivery service by Drivers.
15. Indemnification
The Merchant shall fully indemnify and hold ebaymll, its affiliates, and its and their respective officers, directors, employees, agents and third party contractors (the “Indemnified Party”), harmless from any loss, liability, costs and expenses (including full reimbursement of any legal and professional costs) which the Indemnified Party suffers or incurs as a result of, or in connection with, any claim made or threatened by a third party relating to any Products, the use of Merchant of ebaymllFood Services or ebaymllFood Platform and/or any breach of any provisions of the Agreement, except for resulting from the negligence, bad faith or wilful misconduct on the part of ebaymll. Notwithstanding any other provision herein, it is agreed that neither Party shall be liable to the other Party for any loss of profit, goodwill, business opportunity, and anticipated savings or for any indirect or consequential loss or damage suffered or flowing from either Party.
16. Governing Law; Dispute Resolution
The Agreement shall be governed by the laws of Malaysia. In the event any dispute, controversy, claim or difference of any kind whatsoever shall arise between the Parties in connection with this (“Dispute Notice”), the Parties shall attempt, for a period of thirty (30) days after the receipt by one (1) Party of a notice from the other Party of the existence of a Dispute, to settle such Dispute in the first instance by mutual discussions between the senior management of each of the Parties. If the Dispute cannot be settled by mutual discussions within the thirty (30) days period, it shall be referred to and finally resolved by arbitration administered by the Asian International Arbitration Centre (“AIAC”) in accordance with the Arbitration Rules of the AIAC for the time being in force, which rules are deemed to be incorporated by reference in this clause. There will be one (1) arbitrator who shall be jointly appointed by the Parties. If the Parties are unable to agree on the arbitrator, the arbitration shall be appointed by the Director of the AIAC in accordance with the AIAC Rules. The language of the arbitration shall be English. The place and seat of arbitration shall be Kuala Lumpur, Malaysia. Both Parties agree that Part III of the Arbitration Act 2005 shall not apply to the Agreement or the arbitration proceedings arising out of the Agreement. The Agreement and the rights and obligation of the Parties shall remain in full force and effect pending the award in any arbitration proceeding hereunder, save for the part in dispute and is to be determined in the arbitration proceeding.
17. Notices
17.1 All notices under the Agreement shall be made by personal delivery, through registered letter sent through overnight courier, or e-mail, at the following addresses:
(a) if to ebaymll:
ebaymll Mobile Malaysia Sdn. Bhd.
Level 25, Menara Southpoint,
Mid Valley City, 59200,
Kuala Lumpur,
Malaysia.
E-mail: legal.my@ebaymll.com
Attention: Group General Counsel
(b) if to the Merchant, to the address set out in the Merchant Particulars or through other method or means determined by ebaymll.
17.2 All notices hereunder shall be deemed duly delivered:
(a) if delivered by personal delivery, when left at the address required by this Clause 17;
(b) if sent by overnight courier, on the second (2nd) Business Day after it is picked up by the courier; or
(c) if sent by e-mail, on the day of dispatch so long as such e-mail was sent prior to 5:00 pm on a Business Day in Malaysia; if sent after 5:00 pm on a Business Day or sent on a day that is not a Business Day, it shall be deemed delivered on the following Business Day. In the case of the Merchant sending a notice through e-mail, such e-mail shall be sent through e-mail address set out in the Merchant Particulars and shall be deemed sent by the Merchant themselves, an officer of the Merchant, or other party authorized by the Merchant on behalf of the Merchant.
18. No Waiver
The failure by a Party to enforce any provision of the Agreement shall not be construed as a waiver of such provisions or of the right to enforce that, or any other, provision of the Agreement. No waiver shall be construed as a continuing waiver.
19. Severability
If any part of the Agreement is or becomes invalid, unlawful or unenforceable then such part shall be severed from the remainder of the Agreement, which shall continue to be valid and enforceable to the fullest extent permitted by Applicable Law.
20. Entire Agreement
The Agreement (including all attachments and other documents referred to herein, including, but not limited to, the Merchant SOP and the standard operating procedures by ebaymll for the provision of ebaymllFood Services) represents the entire agreement of the Parties in relation to its subject matter, of which the Parties shall be bound to it. All the things that have not been regulated in the Agreement shall be regulated in the Merchant SOP or any other document published by ebaymll on the ebaymll Platform. The Merchant SOP is an inseparable part of the Agreement and by agreeing to the Agreement, the Merchant agrees to be subject to the Merchant SOP. If there is any discrepancy between any provision of the Agreement and any provision of the Merchant SOP on ebaymll Platform or ebaymllFood Platform for the provision of ebaymllFood Services, the provisions of the Merchant SOP shall prevail.
Last Updated: 11 October 2022