Terms and Conditions
(formerly “Partner Terms and Conditions”)
THESE TERMS AND CONDITIONS (THE “TERMS AND CONDITIONS”) MUST BE READ IN CONJUNCTION WITH THE E-COMMERCE SERVICES AGREEMENT SIGNED BETWEEN PARTNER AND LINGBLE (THE “E-COMMERCE SERVICES AGREEMENT”) AND THE OPERATING POLICIES TOGETHER WITH THE E-COMMERCE SERVICES AGREEMENT AND THE TERMS AND CONDITIONS, THE “AGREEMENT”). CAPITALIZED TERMS USED BUT NOT DEFINED HEREIN SHALL HAVE THE MEANINGS ASSIGNED TO THEM IN THE E-COMMERCE SERVICES AGREEMENT. UNLESS OTHERWISE SPECIFIED HEREIN, ALL REFERENCES TO SECTIONS ARE TO SECTIONS OF THESE TERMS AND CONDITIONS.
Last updated November 14, 2018.
1. Credit Card Fraud. Lingble will bear the risk of credit card fraud (i.e., a fraudulent purchase arising from the theft and unauthorized use of a third party’s credit card information) occurring in connection with Partner sales of Goods through the Store except in connection with Goods that are not fulfilled strictly in accordance with the Order Message and the Operating Policies. Partner will bear all other risk of fraud or loss. Lingble may in its sole discretion withhold for investigation, refuse to process, restrict shipping destinations for, stop, and/or cancel any of Partner sales of Goods. Partner shall stop or cancel orders of Goods if Lingble asks Partner to do so. If Partner has already transferred Goods to a courier, carrier or shipper when Lingble asks to stop or cancel an order, Partner will use commercially reasonable efforts to stop or cancel delivery of that order.
2.1. Partner may not spam Lingble’s system and/or impose an unreasonably or disproportionately large load on Lingble’s system. Partner may not put any material on a Lingble site that contains any viruses, trojan horses, worms, time bombs, cancelbots, or other computer programming routines that may damage, interfere with, surreptitiously intercept, or expropriate any system, data, or personal information.
2.2. Partner may not upload, post, email, transmit, or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation, except in those areas (such as shopping rooms) that are designated for such purpose.
3. Customer Information.
3.2. The Parties agree that during the Term each may disclose Customer Information in the good faith belief that such action is reasonably necessary: (a) to comply with the law; (b) to comply with legal process; (c) to enforce this Agreement; (d) to respond to claims that a Party or the Store are engaged in activities that violate the rights of third parties; or (e) to protect their rights or interests or those of others; provided, however, that nothing in this section shall impose a duty on the Parties to make any such disclosures.
4. Systems Security and Data Privacy. Lingble may change its systems and operations at its sole discretion in order to increase its systems security or improve data privacy protection. Partner shall comply with any such changes as soon as practicable after implementation.
5. Abusive User Behavior. Lingble uses certain confidential internal and third-party tools and techniques to protect users from abusive and other harmful behavior on the internet and on the Lingble servers. Lingble reserves the right to take any action it deems necessary at its sole discretion, including, without limitation, termination or suspension, to protect against such abusive or harmful behavior. Lingble updates these tools, techniques, and practices from time to time as the abusive practices and industry standards change. Partner agrees that Lingble shall not be responsible or liable for any loss or damage of any sort incurred by Partner, or any third party, as the result of Lingble taking or not taking any actions in response to any actual or perceived abusive user behavior.
6. Unauthorized Access. Partner shall not attempt to gain unauthorized access to any servers controlled or owned by Lingble.
7. Use of Partner’s Name and Trademarks.
7.1. Partner’s Name and Trademarks. Partner agrees that by using the Services, Partner grants Lingble, and its authorized independent sales representatives, subdistributors, successors, and assigns, a non-exclusive, worldwide, royalty-free, perpetual, non-revocable license under Partner’s copyrights and other intellectual property rights, if any, in all material and content displayed in the Store to use, distribute, display, reproduce, and create derivative works from such material in any and all media and display in any manner and on any Lingble’s property, including the results of search queries and comparisons conducted on the Software, and refer to and advertise itself as an authorized distributor, retailer or seller of the Goods. Partner also grants Lingble the right to maintain such content on Lingble’s servers during the term of this Agreement and to authorize the downloading, using and printing of such material, or any portion thereof, by end users for their personal use.
7.2. Notwithstanding the foregoing:
a) Partner may request that Lingble cease to use one of their trademarks, service marks or trade names in a specific location or media, so long as such request does not affect Lingble’s ability to sell or market Goods of that specific brand in the Territory or its ability to market the Services. Lingble agrees that any such request shall not be unreasonably withheld.
b) Partner may also limit the usage on the use of trademarks, service marks, and trade names of any third party licensing Partner in connection with the Goods. Lingble acknowledges that third parties licensing Partner have set contractual restrictions on Partner’s use of their trademarks, service marks or trade names, and as a result agrees that any request by Partner to limit usage of Trademarks, service marks, and trade names of any third party licensing Partner in connection with the Goods shall be acted upon by Lingble as soon as practicable.
c) Any requests pursuant to this Section 6.2 shall be made in writing by Partner.
7.3. Product and Brand Ratings. Lingble may use mechanisms that rate, or allow shoppers to rate, the Goods and Lingble may make these ratings and feedback publicly available.
7.4. Lingble’s Intellectual Property. Partner acknowledges and agrees that content available from Lingble or its services, including but not limited to text, software, music, sound, logos, trademarks, service marks, photographs, graphics, or video, is protected by copyright, trademark, patent, or other proprietary rights and laws, and may not be used in any manner other than as may be expressly agreed to in a separate agreement.
8. Product Recalls. If Partner, in its sole discretion, should determine to effect a recall (of one or more of its Goods) or if any Governmental agency having or claiming jurisdiction over any of the transactions contemplated under this Agreement, should request Partner to effect a recall, then Lingble shall promptly be notified by Partner and Lingble shall promptly remove all Goods affected by the recall from the Store, following Partner’s instructions, and shall assist in the reimbursement to Customers of the purchase price of any Goods affected by the recall and returned to Partner. Partner shall in turn reimburse Lingble the total price reimbursed to Customers by Lingble plus any shipping costs incurred by Lingble in connection with the recalled Goods, minus the Commission earned by Lingble on the Goods affected by the recall. Lingble, furthermore, shall promptly notify Customers of any recall effected and shall promptly and jointly with Partner review what steps need to be taken to carry out any recall.
9.1. Either Party may terminate this Agreement (including all related purchase orders pursuant to Section 3.a) , upon written notice to the other:
a) except as otherwise specifically provided under this Section 8, if the other Party is in material breach of this Agreement and either the breach cannot be cured or, if the breach can be cured, it is not cured within 30 days following the other Party’s receipt of written notice of such breach;
b) if the other Party:
i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due;
ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law;
iii) seeks reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition, or other relief with respect to it or its debts;
iv) makes or seeks to make a general assignment for the benefit of its creditors; or
v) applies for or has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
9.2. Lingble may terminate this Agreement at any time and for any reason by providing Partner written notice of termination, which will become effective 60 days from the date of such notice.
9.3. Effect of Expiration or Termination. Upon the expiration or earlier termination of this Agreement:
a) All related purchase orders submitted through the Store prior to termination shall be still fulfilled by the Parties; and
b) Each Party shall promptly return or destroy all documents and tangible materials (and any copies) containing, reflecting, incorporating, or based on the other Party’s Confidential Information.
Except for termination under Section 9.2, any termination under this Section 8 is effective on receipt notice of termination.
10. Confidential Information. During the negotiation of this Agreement (including all contents in this Agreement) and from time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, technology, business strategy, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information (collectively, “Confidential Information”). Confidential Information shall not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving party at the time of disclosure; or (c) rightfully obtained by receiving party on a non-confidential basis from a third party.
The receiving party shall not disclose any such Confidential Information to any person or entity, except to the receiving party’s employees who have a need to know the Confidential Information for the receiving party to perform its obligations hereunder. On the expiration or termination of this Agreement, the receiving party shall promptly return to the disclosing party all copies, whether in written, electronic, or other form or media, of the disclosing party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing party that such Confidential Information has been destroyed.
11. Compliance with Laws; Warranties.
11.1. Compliance with Laws. Partner is in compliance with and shall comply with all applicable laws, regulations, and ordinances. Partner has and shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement.
11.2. Warranties. Partner warrants to Lingble that for a period of three months from the date of delivery, all Goods delivered on that date will: (a) be free from any defects in workmanship, material, and design; (b) conform to applicable specifications and other requirements specified by Lingble; (c) be fit for their intended purpose and operate as intended; (d) be merchantable; and (e) not infringe or misappropriate any third party’s patent or other intellectual property rights. These warranties survive any delivery, inspection, acceptance, or payment of or for the Goods by Customers. These warranties are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of Lingble’s discovery of the noncompliance of the Goods with the foregoing warranties. Lingble may pass through to Customers all warranties granted by Partner under this Agreement and Partner agrees to assist Lingble in processing any warranty claims relating to the Goods.
12. Disclaimer and General Release.
12.1. The Services, including, among other things, the Store, all content, software, functions, materials, communications and information made available by Lingble, are provided “as-is.” As a user of the Services, Partner uses them at its own risk. To the fullest extent permissible by law, Lingble and its affiliates disclaim: (i) any representations or warranties regarding this Agreement, the services or the transactions contemplated by this Agreement, including any implied warranties of merchantability, fitness for a particular purpose, or non-infringement; (ii) implied warranties arising out of course of dealing, course of performance, or usage of trade; and (iii) any obligation, liability, right, claim, or remedy in tort, whether or not arising from Lingble’s negligence. Lingble does not warrant that the functions contained in the Store and the Services will meet Partner requirements or be available, timely, secure, uninterrupted, or error free, and Lingble will not be liable for any service interruptions, including but not limited to system failures or other interruptions that may affect the receipt, processing, acceptance, completion, or settlement of any transactions.
12.2. Because Lingble is only facilitating transactions between Customers and Partner, if a dispute arises between any Customers or other companies using the Store or Services and Partner, each releases Lingble (and its affiliates, agents and employees) from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
13. Tax Matters. As between the parties, Partner will be responsible for the collection, reporting, and payment of any and all of Partner Taxes. Any and all fees payable by Partner pursuant to this Agreement are exclusive of all sales, use, and similar taxes, and Partner will pay any taxes that are imposed and payable on such amounts. Except as otherwise provided in this Agreement, Partner agrees that Lingble is not obligated to determine whether taxes apply, and Lingble is not responsible to collect, report, or remit any taxes arising from any transaction. However, if a taxing authority requires Lingble to pay any of Partner’s taxes, Partner will promptly reimburse Lingble for the amounts paid. Customers may be required to pay, upon delivery of Goods, an amount related to assessed sales, goods and services, use, excise, import, value added, or other taxes or duties. Such taxes or duties, if any, are in addition to the sales proceeds collected by Lingble.
14. General Indemnification. Partner shall indemnify, defend, and hold harmless Lingble, its officers, directors, employees, agents, affiliates, successors and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, fees, and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers, incurred by Indemnified Party (collectively, “Losses”), relating to, arising out of or resulting from any claim of a third party or otherwise arising out of, relating to or occurring in connection with this Agreement, the Goods, the Store, the Services or any Partner’s actions, whether or not they amount to negligence, willful misconduct, or a breach of this Agreement. Partner shall not enter into any settlement without Lingble’s prior written consent.
15. Intellectual Property Indemnification. Partner shall indemnify, defend, and hold Indemnified Party harmless against any and all Losses arising out of or in connection with any claim that Indemnified Party’s use or possession of the Goods or materials or content displayed in the Store (including, among others, designs, trademarks, service marks, and trade names) infringes or misappropriates the patent, copyright, trade secret, or other intellectual property right of any third party. In no event shall Partner enter into any settlement without Lingble’s prior written consent.
16. DMCA Takedown Notices. Lingble supports the protection of intellectual property and expects Partners to do the same. If someone believes that Partner is infringing their intellectual property rights, they can send a DMCA takedown notice (a “DMCA Notice”) to Lingble. Upon receiving a DMCA Notice, Lingble may, at its sole discretion, remove or disable access to the materials or information claimed to be a copyright infringement. Lingble will send any notices received to Partner, and it is Partner’s responsibility to respond or send a counter notification directly to the original complainant, and provide notice of its response to Lingble. The original complainant has 14 business days after Partner sends a counter notification or response to seek a court order restraining Partner from engaging in the infringing activity, otherwise Lingble will restore the material or information.
17. Limitation of Liability. Lingble is not liable for consequential, indirect, incidental, special, exemplary, punitive, or enhanced damages, arising out of or relating to any breach of this Agreement, the operation of the Store, or the provision of the Services, whether or not the possibility of such damages had been disclosed in advance by Partner or was foreseeable, regardless of the legal or equitable theory (contract, tort or otherwise) upon which the claim is based, and notwithstanding the failure of any agreed or other remedy of its essential purpose.
18. Negative Partner Actions. If Lingble determines that Partner actions or performance may result in returns, chargebacks, claims, disputes, violations of Lingle’s terms or policies (including this Agreement), or other risks to Lingble or third parties, then Lingble may in its sole discretion withhold any payments to Partner for as long as Lingble determines any related risks to it or third parties persist. For any amounts that Lingble determines Partner owes Lingble or other third parties, Lingble may (a) charge any payment instrument Partner provide to Lingble; (b) offset any amounts that are payable by Partner to Lingble (in reimbursement or otherwise) against any payments Lingble may make to Partner or amounts Lingble may owe to Partner; (c) invoice Partner for amounts due, in which case Partner shall pay the invoiced amounts upon receipt; (d) reverse any credits to the bank account Partner designated for payments in this Agreement; or (e) collect payment or reimbursement from Partner by any other lawful means. If Lingble determines that Partner has used the Store or the Services to engage in deceptive, fraudulent, or illegal activity, then Lingble may in its sole discretion permanently withhold any payments to Partner.
19. Entire Agreement. This Agreement, including and together with any related exhibits, schedules, attachments, and appendices, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter. In the event of conflict between the terms of this Agreement and the terms of any purchase order or other document submitted by one Party to the other, this Agreement shall control unless the Parties specifically otherwise agree in writing pursuant to Section 22.
20. Survival. Subject to the limitations and other provisions of this Agreement: (a) the representations and warranties of the Parties contained herein shall survive the expiration or earlier termination of this Agreement; and (b) Sections 7.3, 7.4 and 7.5 of the E-Commerce Services Agreement and 7.1, 10, 11.2, 12, 14, 15, 17 and 18of the Terms and Conditions, as well as any other provision that, in order to give proper effect to its intent, should survive such expiration or termination, shall survive the expiration or earlier termination of this Agreement.
21. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement to effect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
22. Waiver. No waiver by any party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
23. Cumulative Remedies. All rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties or otherwise.
24. Assignment. Except as otherwise set forth in Section 2.3 of the E-Commerce Services Agreement, neither Party may assign nor use as collateral any of its rights under this Agreement without the prior written consent of the other Party. Any purported assignment or delegation in violation of this Section shall be null and void.
25. Successors and Assigns. This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns.
26. No Third-Party Beneficiaries. Subject to the next paragraph, this Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
Lingble hereby designate Indemnified Parties as third-party beneficiaries of Sections 14 and 15 with the right to enforce those provisions.
27. Choice of Law. This Agreement, including all exhibits, schedules, attachments and appendices attached to this Agreement and thereto, and all matters arising out of or relating to this Agreement, are governed by, and construed in accordance with, the laws of the State of New York, without regard to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of New York.
28. Arbitration. Any dispute, controversy, difference or claim arising out of or relating to this Agreement, including the existence, validity, interpretation, performance, breach or termination thereof or any dispute regarding non-contractual obligations arising out of or relating to it shall be referred to and finally resolved by arbitration administered by the Hong Kong International Arbitration Centre (HKIAC) under the HKIAC Administered Arbitration Rules in force when the Notice of Arbitration is submitted.
29. Waiver of Jury Trial. Each Party acknowledges and agrees that any controversy that may arise under this Agreement, including exhibits, schedules, attachments, and appendices attached to this Agreement, is likely to involve complicated and difficult issues and, therefore, each such Party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement, including any exhibits, schedules, attachments or appendices attached to this Agreement, or the transactions contemplated hereby.
30. Force Majeure. Any delay or failure of either Party to perform its obligations under this Agreement will be excused to the extent that the delay or failure was caused directly by an event beyond such Party’s reasonable control, without such Party’s fault or negligence and that by its nature could not have been foreseen by such Party or, if it could have been foreseen, was unavoidable (which events may include natural disasters, embargoes, explosions, riots, wars or acts of terrorism) (each, a “Force Majeure Event”). Changes in cost or availability of materials, components or services, market conditions, or supplier actions or contract disputes will not excuse performance by Partner under this Section 31. An interested party shall give the other Party prompt written notice of any event or circumstance that is reasonably likely to result in a Force Majeure Event, and the anticipated duration of such Force Majeure Event. An affected Party shall use all diligent efforts to end the Force Majeure Event, ensure that the effects of any Force Majeure Event are minimized, and resume full performance under this Agreement.
32. Amendments. Lingble may from time to time amend the Terms and Conditions at its sole discretion. Amendments will become effective immediately upon the posting of such changes on the Lingble website. Partner is responsible for reviewing the Terms and Conditions regularly to inform itself of the latest terms and conditions applicable to it.
33. Right to Refuse Business. Lingble reserves the right to refuse to host or continue to host on the Platform or provide the Services to any Partner which it believes, in its sole discretion: (1) offers for sale goods or services, or uses or displays materials, that are illegal, obscene, vulgar, offensive, dangerous, or are otherwise inappropriate; (2) has substantially changed its Goods from the time it was accepted; (3) has received a significant number of complaints for failing to be reasonably accessible to customer support enquiries or timely fulfill Customer orders or for products that do not meet the expected quality standard of Customers; (4) has become the subject of a government complaint or investigation; or (5) has violated or threatens to violate the letter or spirit of the Agreement.