Merchant Agreement

This Marketplace Sellers Agreement (hereinafter referred to as “Agreement”) is made and entered into by and between Beauty People Cooperate Limited., a company incorporated pursuant to the laws of Hong Kong with registration number 60599172-000 and having its registered address at Unit 1305, Wang Fai Industrial Building, 29 Luk Hop Street, Sang Po Kong, Hong Kong, hereinafter referred to as “rosy rain”; and and “You” /“Seller” as identified in Seller Center under the head ‘Seller Profile’.

This Agreement will come into effect on the date at which the Seller accepts the electronic Agreement in Seller Center (“Effective Date”).

The aforesaid organisations are hereinafter referred to individually as “Party” and collectively as “Parties”.

WHEREAS

(A)        ROSY RAIN conducts business through, inter alia, the sale of various products on the internet.

(B)        The Seller is the owner and/or authorised distributor of the Brand and the Products, including but not limited to the Intellectual Property Rights embodied in the Brand and the Products.

(C)       The Seller intends to sell the Products on the Website and ROSY RAIN has agreed to provide its Website as a platform for the sale of such Products in accordance with the terms and conditions contained herein.

AND NOW IT IS HEREBY AGREED AS FOLLOWS:

1.          INTERPRETATION

1.1.         The Commercial Terms as set out in your Seller Profile in Vendor Platform an integral part of this Agreement and shall be read and construed as one document.

1.2          In this Agreement, unless the subject or context otherwise requires, the following words and expressions shall have the following meanings

Agreement

this Framework Purchase Agreement duly signed and stamped by the Parties, including any schedules, appendices and annexures attached hereto, including the agreement concluded between the Seller and the Customer via the Website for the sale of the Products to Customers;

Business Day

a day, from 10.00 a.m. to 6.00 p.m., (excluding Saturdays, Sundays and Public Holidays) on which commercial banks are open for business in Hong Kong;

Conditions

the general terms and conditions set out in this Agreement and (unless the context otherwise requires) any additional terms and conditions mutually agreed upon in writing by both Parties;

Commercial Terms

Commercial terms governing your relationship with ROSY RAIN, which are legally binding and are available on Seller Center. These include but are not limited to certain service fees, Seller Handling Time etc.

Failed Delivery

(a)       An event when the Seller is not present when ROSY RAIN’s 3PL arrives for collection of Products, and/or

(b)      the Products are not ready for delivery;

Seller Handling Time

the time taken for the Seller to confirm and prepare the order for collection . Seller Handling Time is prescribed in the Commercial Terms;

HKD

Hong Kong Dollar, being the lawful currency in Hong Kong;

in writing / written

in written form by means of  a letter and signed, which includes any electronic mail sent from the e-mail address of and provided by the Parties and any comparable means of communication that  results in a permanent record being made;

Indemnified Party

ROSY RAIN and its affiliates, shareholders, directors, employees, associates, agents, users, successors, and assigns;

Intellectual Property Rights

the legal rights or interests evidenced by or embodied in:

(i)        any idea, design, concept, method, technique, invention, discovery, improvement and enhancement regardless of patentability, including but not limited to patents, patent applications, trade secrets and know-how;

(ii)       any work of authorship, regardless of copyright ability, including but not limited to copyrights and any moral rights recognized by law; and/or

(iii)      any trade mark, trade name, trade dress or domain name or reference mark or identification, whether registered or unregistered, together with any and all worldwide vested and/or inchoate rights in and to any or all of the foregoing under any issued, pending and/or later filed applications for patent or trade mark registration, utility models and/or any form of protection of various forms of intellectual and/or industrial property recognized anywhere in the world including any and all rights of domestic and/or foreign priority, the right to sue and recover damages for infringements including without limitation, any past infringements;

List Price

the actual selling price set by the Seller and represented to the Customers on the Website;

Losses

all claims, losses (including without limitation, all damages, expenses, fees, fines, penalties, court costs and reasonable attorneys’ fees), liabilities (criminal or civil), demands, suits, causes of action of every kind and character;

Payment Gateways

online payment services offered by ROSY RAIN to the Seller;

Payment Gateway Fee

the fee payable by the Seller to ROSY RAIN in consideration of the Payment Gateways provided by ROSY RAIN, to be calculated in accordance with the Commercial Terms;

Per Product Service Fee

The fee charged by ROSY RAIN for provision of shipping and handling services. This fee shall be charged per Product, and shall be first borne by ROSY RAIN on behalf of the Seller which the Seller shall reimburse to ROSY RAIN in accordance with the Commercial Terms;

Products

Products (including any installment of the Products or any parts thereof) and services where appropriate, marketed under the Brand which the Seller intends to sell to Customers through the Website;

Seller Center

portion or part of the Website which is specifically created and set aside by ROSY RAIN for use by the Seller for the sale of the Products on the Website ;

Sellers Revenue

means the difference of: the List Price (excluding VAT) minus the Selling Fee and any ROSY RAIN promotional voucher agreed to be absorbed by the Seller;

Selling Fee

the fee that ROSY RAIN will charge to the Seller on each Product sold via the Website, which shall be in accordance with the Commercial Terms;

Subscription Fee

the monthly subscription fee payable by the Seller to ROSY RAIN in accordance with the Commercial Terms;

SKU

(Stock Keeping Unit)

the distinct Product offered for sale by the Seller which embodies all attributes associated with the Product and that distinguishes it from all other products;

Territory

Hong Kong;

VAT

value added tax;

Website

the website located a https://www.rosy-rain.com/;

ROSY RAIN’s 3PL / 3PL

the third party logistics services provider engaged by ROSY RAIN to collect the Products from the Seller and to deliver the Products to the Customers or from ROSY RAIN’s warehouse to the Customers.

 1.3    In this Agreement, unless otherwise stated (or unless the context otherwise requires):

(a)        references to “Clauses” and “Appendices” are, unless otherwise stated, to clauses and appendices to this Agreement;

(b)        words importing the singular shall include the plural and vice versa;

(c)        words importing the masculine gender shall include the feminine gender and vice versa;

(d)        words importing an individual shall include a corporation and vice versa;

(e)        the headings are inserted for convenience only and shall not affect the construction of this Agreement;

(f)         the terms “other”, “include”, “including”, “for example” and “in particular” do not limit the generality of any preceding words and any words which follow them shall not be construed as being limited in scope to the same class as the preceding words where a wider construction is possible;

(g)        the expression “this Agreement” or any similar expression shall mean this Agreement and any supplemental written Agreement hereto as may be in force from time to time; and

(h)        references to a particular law (including a statute or statutory provision) shall be construed as references to that law as it is in force at the relevant time taking account of any amendment, re-enactment or extension and shall include any subordinate legislation for the time being in force made under it.

2.          BASIS OF THE AGREEMENT

2.1       Subject to this Agreement, to the exclusion of any other terms and conditions contained or referred to in any documentation submitted by the Seller or in correspondence or implied trade custom practice or course of dealing, which outlines the terms and conditions under which, ROSY RAIN and the Seller will work together so as to enable the Seller to use of the Website as a platform for the sale of the Products.

2.2       No variation or amendment made by the Seller to this Agreement shall be binding unless expressly agreed in writing and signed by the authorised representatives of both Parties. For the avoidance of doubt, any director of the Seller and ROSY RAIN shall be deemed to be authorised representatives of the Seller and ROSY RAIN respectively.

2.3       In the event the Seller ascertains any requirement or provision of this Agreement that may conflict with any other requirement or provision, the Seller shall give ROSY RAIN a written notice of such alleged conflict within seven (7) calendar days from the Effective Date. Any such conflict shall be referred to ROSY RAIN for resolution in ROSY RAIN’s absolute and sole discretion. In the event that the Seller fails to provide such written notice within the time stipulated, any costs incurred in correcting the erroneous interpretation shall be borne fully by the Seller.

3.          TERM AND RENEWAL

3.1       Upon execution of this Agreement by the Parties, this Agreement shall remain in effect for a period of ten (10) years unless earlier terminated by the Parties in accordance with the terms of this Agreement.

3.2       Both Parties acknowledge and agree that:

(a)        the expiry or early termination of this Agreement for whatever cause shall not affect any provision of this Agreement which by its construction, was intended to survive or operate (expressly or by implication) in the event of such expiry or early termination and such obligations shall continue to survive until the completion of the Parties’ obligations; and

(b)        upon the expiry or early termination of this Agreement, with the exception of any loss, cost or expense incurred arising from any default, willful misconduct, fraud or gross negligence of the other Party, no Party shall have any obligation or liability to pay the other Party any form of compensation whatsoever.

4.          SUPPLIER PARTNERSHIP

4.1       ROSY RAIN agrees to provide the Website as a platform to the Seller for the sale of the Products, provided all Conditions set out in this Agreement are complied with by the Seller.

4.2       ROSY RAIN shall facilitate the Customers to purchase the Products through the Website, upon which ROSY RAIN will forward each order made by the Customers through the Website to the Seller in accordance with Clause 8 below. For the avoidance of doubt, each order made by the Customers for the sale of Products shall be deemed to be an Agreement entered into between the Customer and the Seller.

4.3       Each Party represents and undertakes that it is entering this Agreement as independent contractors. Neither Party shall have any right, power or authority to enter into any Agreement for or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other Party. This Agreement shall not be interpreted or construed to create an employment relationship, joint venture or partnership between the Parties or to impose any liability attributable to such relationship upon either Party. The use of the term “Seller” or “partnership” herein does not create a partnership between the Parties.

5.          COMMISSION/FEES

5.1       All fees under this Agreement shall be paid in accordance with the Commercial Terms.

5.2       ROSY RAIN will issue invoices to the Seller for all fees payable pursuant to the Commercial Terms on a monthly basis and the Seller shall pay to ROSY RAIN in accordance with Clause 13 below.

6.          SCOPE AND PRESENTATION OF PRODUCTS

6.1       Prior to the Products being featured and listed on the Website for sale, the types of Products shall be mutually selected and agreed upon by both Parties in writing and the Seller may, subject to Clause 7.4 below, have the flexibility over determining the prices of the Products, which shall be sold on the Website in order to maintain ROSY RAIN’s assortment of products and ROSY RAIN shall not be liable to the Seller for any losses arising out of or in connection with the sale of the Products thereof.

6.2       ROSY RAIN reserves the right to control the look and feel of the Website and has a right to remove the Products that in ROSY RAIN’s sole and absolute discretion, may not contribute to the assortment, may be unfit for sale on the Website, or when it is deemed by ROSY RAIN, in its sole and absolute discretion, that the Seller is operationally incapable.

6.3       The Seller shall provide the images, information and specifications of the Products in accordance with the requirements set out in the Commercial Terms.

6.4       The Seller shall maintain the minimum quantity of SKUs on the Website as per the Commercial Terms, in order to remain an active Seller on the Website.

6.5       The Seller agrees to make good, amend, replace, rectify or repair all defects of the Products to ROSY RAIN or the Customers, as the case may be, as required by ROSY RAIN, by law or by this Agreement.

6.6    The Seller acknowledges and hereby agrees that ROSY RAIN shall have the right to advertise the Products on the websites of its business Sellers and affiliates for the purposes of selling the Products to the Customers.

7.      INVENTORY AND PRICING OF PRODUCTS

7.1 Unless the goods are stored in the warehouse of ROSY RAIN, otherwise shall be managed by the seller through the seller’s center, and the seller shall update their stocks through the seller’s center every day.

7.2       All Products listed by the Seller on the Website shall be available in the Seller’s inventory. In the event the Customer orders a Product which is found to be out of stock (“OOS”) by the Seller, the Seller shall refill the stock or update the inventory in Seller Center.  For each OOS situation over 7 days, the Seller shall be liable to pay ROSY RAIN liquidated damages in accordance with the Commercial Terms 

7.3       The List Price on the Website shall not be unreasonable or substantially different from the selling price set by the Seller for the sale of such a Product, through any other channels, within the Territory.

8.          SALE AND FULFILMENT OF THE PRODUCTS ON THE WEBSITE

8.1       Upon receipt of an order for the purchase of the Products by a Customer, ROSY RAIN shall furnish the Seller with details of the ordered Products, including the Seller’s SKU or bar code of the Products and the details contained in the Customer’s order.

8.2       The Seller shall review all Customers’ orders forwarded to it by ROSY RAIN on a daily basis. In the event the Seller reasonably anticipates or ascertains that it is unable to fulfil any such order, it must cancel the said order immediately (in accordance with clause 7.2 above) and inform ROSY RAIN of the cancellation immediately.

8.3       All agreements entered into between the Seller and the Customers for the sale and purchase of the Products on the Website shall be entered into on the basis of ROSY RAIN’s Terms and Conditions  and ROSY RAIN’s Return Policy provided on the Website (https://www.rosy-rain.com/returns).

8.4       The Seller hereby acknowledges and agrees that ROSY RAIN reserves its rights, at its sole discretion, to unilaterally change, modify, add or delete parts of its Terms and Conditions and Return Policy at any time.

8.5       Notwithstanding anything to the contrary in this Agreement, both Parties hereby acknowledge and agree that the sale shall be deemed complete when full payment of the Products by the Customer has been received by ROSY RAIN, where the Seller shall be obliged to supply the Products to the Customer.

8.6       ROSY RAIN may at its sole discretion, move certain SKUs/Products to the ROSY RAIN Outlet section of the Website.

9.          ORDER DISPATCHING AND CANCELLATIONS

9.1       Upon receipt of information regarding any orders from ROSY RAIN, the Seller shall process each Customer order in a timely manner and in accordance with Clause 10 below such that all Products shall have a Seller Handling Time in accordance with the Commercial Terms. In the event of any delay, either materialized or foreseen, the Seller shall inform ROSY RAIN of the same in writing immediately.

9.2       The Seller shall at all times perform dispatch of Products within the Seller Handling Time.  A failure to comply with this Clause 9.2 shall entitle ROSY RAIN to terminate this Agreement immediately, and the Seller shall be liable for liquidated damages as set out in the Commercial Terms.

9.3       ROSY RAIN shall be entitled to cancel every order that has not been dispatched by the Seller within the Seller Handling Time.

9.4       The 3PL shall make a maximum of three (3) attempts to collect the order from the Seller. Each Failed Pick-up shall be charged to the Seller as liquidated damages in accordance with the Commercial Terms. After the third Failed Pick-up, ROSY RAIN will be entitled to cancel the order immediately, with no further obligation to the Seller.

9.5       The Seller agrees to maintain its stock of the Products and to maintain a cancellation rate which is less than the prescribed limit as per the Commercial Terms. A failure to comply with this Clause 9.5 shall entitle ROSY RAIN to terminate this Agreement immediately.

9.6       Seller acknowledges and agrees that that any payment of liquidated damages under this Agreement is a genuine pre-estimate of ROSY RAIN’s losses in case such breach occurs, and said sums shall be paid as liquidated damages for delay and not as a penalty.

10.       PRODUCT PACKAGING

10.1     Subject to this Agreement, ROSY RAIN may provide the Seller with any or all of the following packaging materials for the Seller to attach it accordingly to the Products for each delivery:

(i)         the appropriate pre-paid shipping labels;

(ii)        the Product’s packaging material;

(iii)       invoice; and/or

(iv)       the Products’ return form for the Customer in the event of a return.

Both Parties acknowledge and agree that in the event the Seller fails to provide an invoice set out in Clause 10.1(iii) above in the package, or the Customer misplaces a return slip set out in Clause 10.1(iv)

above, ROSY RAIN shall have the right to extract these materials from the Seller Centre and send it to the Customer.

10.2     Upon receipt of information regarding any Customer’s order from ROSY RAIN, the Seller shall be responsible of the packaging the Products with the packaging materials as set out in Clause 10.1 above that are provided by ROSY RAIN and shall bear all the costs arising out of or in connection thereto.

10.3     The Seller is prohibited to include any branding or promotional inserts in or on any packaging or labelling in connection with the Products, other than as provided and/or approved by ROSY RAIN in writing.

11.       QUALITY CONTROL AND SHIPPING OF THE PRODUCTS

11.1     All delivery and dispatch of the Products will be performed by ROSY RAIN’s 3PL, where ROSY RAIN reserves its rights to change its 3PL from time to time at its own discretion.

11.2     The Seller agrees that the Products delivered to the Customer through ROSY RAIN’s 3PL shall be of satisfactory quality (within the meaning of the Sale of Goods Act, Cap 393, as amended) and fit for any purpose held out by the Seller or made known to the Seller by the Customer.

11.3     Notwithstanding anything in the Agreement to the contrary, ROSY RAIN shall in no event bear any liability for any the quality of the Products including a change in the quality of Products at any time.

11.4     The Seller agrees to pay ROSY RAIN Per Product Service Fee in accordance with the Commercial Terms.

12.       CUSTOMER SERVICE

12.1     ROSY RAIN shall forward to the Seller all questions and complaints received by ROSY RAIN pertaining to the Products. The Seller shall revert to ROSY RAIN on all such questions and complaints within two (2) Business Day.

12.2     The Seller shall in no event, directly or indirectly, direct, encourage, lead, promote, solicit and/or tout the Customers to purchase any Products through any other sources other than the Website. A failure to comply with this Clause 12.2 shall entitle ROSY RAIN to terminate this Agreement immediately.

12.3     In the event the Seller wishes to cancel an order for reasons which are beyond the Seller’s control (for example: duplicate orders) and because of no fault or negligence on its behalf, it shall promptly notify the relevant account manager/point of contact at ROSY RAIN. ROSY RAIN will investigate the cancellation request. If ROSY RAIN believes that there has been no fault or negligence on behalf of the Seller, ROSY RAIN will cancel the order immediately and the Seller will have no further obligation in respect of such order.

13.    INVOICING AND PAYMENT

13.1  Within ten (10) Business Days from the close of every month, ROSY RAIN will issue a sales report/statement to the Seller showing all sales made for the Seller’s account. The Seller shall have five (5) Business Days from the date of the sales report/statement, to contact ROSY RAIN for any questions and/or queries related to the sales report/statement. ROSY RAIN will not be obliged to address to any questions and/or queries after the end of the time stipulated. Each sale shall be recorded by ROSY RAIN in accordance with Clause 8.5 of this Agreement. Any changes to this clause shall be reflected in the Commercial Terms.

13.2  Upon receipt of the full payment from the Customers for the Products sold on the Website upon the Products being delivered. ROSY RAIN shall thereafter pay to the Seller the sum received from the Customers within thirty (30) calendar days from the close of the month whereby such sums shall be subjected to any off set against payments due by the Seller to ROSY RAIN including but not limited to the following:

(a)        the Selling Fee, Subscription Fee, Payment Gateway Fee and Per Product Shipping Fee as listed in the Commercial Terms;

(b)        any other sums or fees owed by the Seller to ROSY RAIN;

(c)        any claims of third parties against ROSY RAIN arising out of or in connection with the Seller’s performance, whether under any order or other document; and/or

(d)        such an amount legally required to be withheld and remit the same to the taxing authority of any jurisdiction relevant to the transaction, if any.

13.3  Subject to Clause 13.2 above, where there is a negative balance, the Seller shall make payment of all invoices issued by ROSY RAIN by means of telegraphic transfer or cheque within seven (7) Business Days from the date of the respective invoice. All invoices issued by the Seller shall be paid for in HKD.

13.4  The Seller shall be responsible for payment of all sales, use, excise, value-added/goods and services tax, business, and other taxes, any taxes, which may be imposed on the basis of any revenue, income, net income, or capital and any taxes imposed in lieu thereof, and all duties, fees, or other assessments of whatever nature imposed by governing authorities or any jurisdiction applicable in connection with performance under this Agreement. The Seller shall release, defend, indemnify, and hold ROSY RAIN and the Indemnified Party harmless from and against any Losses, arising out of, alleged to arise out of, or in any way associated with the Seller’s failure to comply with the terms of this Clause.

14.       WARRANTIES

14.1     The Seller warrants to ROSY RAIN that all the Products sold on the Website, whether manufactured, fabricated, or otherwise produced or provided by the Seller or others, will:

(a)        strictly conform to the specifications, drawings, samples, performance criteria, and other descriptions referred to or provided on the Website;

(b)        be of merchantable quality and fit for the purpose(s) intended;

(c)        conform with all applicable laws, ordinances, codes and regulations in the jurisdiction where the sale is effected, and

(d)        be free from defects in materials, performance, operation, and workmanship.

14.2     The Seller further warrants and represents to ROSY RAIN that:

(a)        the entry into this Agreement and the performance thereof by the Seller has been duly authorised by all necessary corporate action and constitutes a valid and binding Agreement of the Seller, enforceable against the Seller in accordance with the terms thereof;

(b)        it shall conduct its business and perform its obligations herein in accordance with the highest business standards and will not commit any act which will or may negatively affect the business integrity, reputation or goodwill of ROSY RAIN;

(c)        all information, including but not limited to all information furnished to ROSY RAIN with regards to the Products and the Brand, are accurate and up-to-date;

(d)        all consents, waivers, approvals, authorisations, registrations, licenses or declarations of or by or filing with, any government authority or contracting party which are required to be made or obtained by the Seller in connection with the entry into this Agreement or/and necessary for ROSY RAIN to feature the Seller’s Products and the Brand on the Website, for performance of the Agreement have been procured and duly obtained at its own cost; and

(e)        the entry, delivery and performance of the Agreement by the Seller will not violate or conflict in any material respect with any law, statute, rule, regulation, ordinance, code, judgment, order, writ, injunction, decree or other requirement of any court or of any governmental body or agency thereof applicable to the Seller.

(f)         Seller takes full responsibility for any person who is authorised by the Seller to use the Seller account on Seller Center. Seller shall be liable and held responsible for all acts and/or omissions committed by such person as though such acts and/or omissions were committed by the Seller itself.

14.3     The obligations under this clause survive the expiry or early termination of this Agreement.

15.       ANTI-BRIBERY REPRESENTATION

15.1     The Seller has not, and to the Seller’s knowledge no representative of the Seller or any other person on the their behalf has, offered or given anything of value to: (i) any official, member, employee or customer or a governmental entity, any political party or official thereof, or any candidate for political office; (ii) any customer or member of the government; or (iii) any other person, in any such case while knowing or having reason to know that all or a portion of such money or thing of value may be offered, given or promised, directly or indirectly, to any customer, member of the government or candidate for political office for the purpose of the following: (i) influencing any action or decision of such person, in his official capacity, including a decision to fail to perform his or its official function; (ii) inducing such person to use his or its influence with any government or instrumentality thereof to affect or influence any act or decision of such government or instrumentality to assist the Seller in obtaining or retaining business for, or with, or directing business to, the Seller; (iii) securing any improper advantage; (iv) where such payment would constitute a bribe, kickback or illegal or improper payment to assist the Seller in obtaining or retaining business for or with any person. The Seller has made all payments to third parties by check mailed to such party’s principal place of business or by wire transfer to a bank located in the same jurisdiction as such party’s principal place of business. Each such transaction is properly and accurately recorded on the books and records of the Seller, as the case may be, and each document upon which such entries in each of the Seller’s books and records are based is complete and accurate in all respects. The Seller shall maintain a system of internal accounting controls adequate to insure that the Seller maintains no off-the-books accounts and that the Seller’s assets are used only in accordance with the Seller’s management directives. The Seller shall permit ROSY RAIN or its representatives at any time, with notice not less than 24 hours, to visit the Seller’s premises or other locations where the Seller may maintain its books and other financial records, and to inspect and copy said books and other financial records the Supplier may keep for the last five (5) financial years.

16.           FORCE MAJEURE

16.1     Neither Party shall be liable to the other Party or be deemed to be in breach of the Agreement by reason of any delay in performing or any failure to perform any of a Party’s obligations if the delay or failure was due to any cause beyond a Party’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond a Party’s reasonable control: act of God, explosion, flood, tempest, fire or accident, war or threat of war, civil disturbance or requisition, acts, restrictions, regulations, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority, import or export regulations or embargoes, interruption of traffic, strikes, lock-outs or other industrial actions or trade disputes, interruption of production or operation, difficulties in obtaining raw materials, labour, fuel, parts or machinery, power failure or breakdown in machinery, breakdown of internet services for any reason whatsoever, save for the wilful misconduct or negligence of the Party.

16.2     Upon any of the events set out in Clause 16.1, either Party may at its option:

(a)           fully or partially suspend delivery/performance while such event or circumstances continue; or

(b)           terminate any Agreement so affected with immediate effect by written notice to the other Party and neither Party shall be liable for any loss or damage suffered by the other Party as a result thereof.

16.3     All costs and expenses incurred shall be apportioned accordingly between the Seller and ROSY RAIN at the time of Force Majeure and thereafter payments shall be made to respective Parties based on such apportionment accordingly.

17.       TERMINATION

17.1     Notwithstanding anything to the contrary in this Agreement, either Party may terminate this Agreement by providing at least fourteen (14) calendar day’s prior written notice to the other Party, beyond which the termination shall be effective.

17.2     ROSY RAIN may terminate this Agreement if any amendment made to this Agreement is notified to the Seller and has not been accepted by the Seller within the prescribed timeline.

17.3     ROSY RAIN shall, in addition to any rights or remedies it may have in law, in equity, or under the Agreement, be entitled to terminate the Agreement with immediate effect by written notice to the Seller and the Seller shall not be entitled to any cancellation or other fee or liquidated damageshereunder, in the event the Seller is in breach of any warranty or representation under the Agreement or any of the following clauses: Clause 9.2, Clause 9.4, Clause 12.2 and/or Clause 18.12.

17.4     On or at any time after the occurrence of any of the events below, either Party shall, in addition to any rights or remedies it may have in law, in equity, or under the Agreement, be entitled to terminate the Agreement with immediate effect by written notice to the other Party:

(a)        the other Party being in breach of any other obligation under the Agreement and failed to remedy the same on or before seven (7) calendar days from receipt of a written notice from the Party of such breach;

(b)        the other Party passing a resolution for its winding up or a court of competent jurisdiction making an order for the other Party’s winding up or dissolution;

(c)        the other Party becomes bankrupt/insolvent;

(d)        the making of an administration order in relation to the other Party or the appointment of a receiver over or an encumbrance taking possession of or selling any of the other Party’s assets;

(e)        the other Party making an arrangement or composition with its creditors generally or applying to a Court of competent jurisdiction for protection from its creditors; or

(f)         the other Party ceasing or threatening to cease to carry on business.

17.5     In addition to the events set out in clause 17.4 above, ROSY RAIN reserves a right to terminate this Agreement without cause at any time, by providing immediate notice to the Seller.

17.6     Upon termination of this Agreement, the Seller shall immediately inform ROSY RAIN of all concluded Agreements entered into with Customers, which have yet to be fully performed and shall be obliged to perform these Agreements to its full extent.

17.7     For avoidance of doubt, termination of this Agreement shall not in whatsoever manner affect:

(a)        the validity of the order made by and the Agreement concluded with the Customer on or before the date of termination;

(b)        the rights or liabilities of either Party accrued until the date of termination; and/or

(c)        the Seller’s warranties to the Products.

18.    INDEMNIFICATION

18.1  The Seller agrees to release, defend, indemnify and hold harmless ROSY RAIN and the Indemnified Party, against any and all Losses, arising out of, alleged to arise out of, or in any way associated with:

(a)        any defect in the Products sold to any Customer;

(b)        any claim made by any Customer on the basis of any Agreement entered into with the Seller;

(c)        any negligence or fault of whatever nature of the Seller or its affiliates, and any director, officer, employee, contractor, or agent; and/or

(d)        any breach in any warranty or representation made herein.

19.       INTELLECTUAL PROPERTY

19.1     The Seller warrants, represents and covenants that its manufacture, sale, distribution and use of the Products and the Brand do not infringe directly or indirectly any (third) party’s Intellectual Property Rights.

19.2     The Seller warrants, represents and covenants that ROSY RAIN’s feature of the Products and the Brand on the Website does not infringe directly or indirectly any (third) party’s Intellectual Property Rights.

19.3     In cases where the Seller opts for ROSY RAIN’s photography services for a prescribed fee, all photographs taken shall remain property of ROSY RAIN and shall be used strictly on the ROSY RAIN website only.

19.4     The Seller undertakes and represents to ROSY RAIN that it has all rights and ownership, or is a licensed user of, all Intellectual Property Rights in relation to the Products and the Brand and the supply of the Products and the Brand including but not limited to any product designs, descriptions, data, information, text, drawings, artwork, photography, graphics, audio, video or other materials related to the Products and the Brand. The Seller undertakes and warrants that it is able to grant and hereby grants ROSY RAIN an irrevocable, non-exclusive and royalty free license to use all such Intellectual Property Rights for the purposes of marketing and featuring the Products and the Brand on the Website including advertising, promoting sales, distributing and selling the Products on-line as provided herein. ROSY RAIN acknowledges that it will not acquire any rights in respect of the Intellectual Property Rights in relation to the Products and the Brand and that all those rights and goodwill are, and will remain, vested in the Seller or the owner of the Intellectual Property Rights (as the case may be).

19.5     The Seller acknowledge and agree that ROSY RAIN shall have the right to edit, modify and/or use all images uploaded by the Seller pertaining to the Products for purposes in connection with (without limitation) advertising, display, marketing and promotion.

19.6     ROSY RAIN shall have the right to use search terms related to the Products and the Brand, to place advertisements or pay for any such search terms with Internet search engines including Google or Yahoo or otherwise use such terms in connection with any Internet search optimisation techniques related to the Products and the Brand.

19.7     ROSY RAIN shall have the right to use any trademarks related to the Products and the Brand, in ROSY RAIN’s paid search advertising program and/or affiliate program or on such affiliate’s websites.

19.8     The Seller represents and warrants to ROSY RAIN that it is not aware of any claims made by any third party with regards to any alleged or actual patent, copyright, trade secret, trademark, trade name, or other Intellectual Property Rights infringement or other claim, demand or action resulting from the manufacture, sale, distribution or use of the Products and the Brand.

19.9     The Seller agrees to release, defend, protect, indemnify and hold ROSY RAIN and the Indemnified Party, harmless from and against any and all Losses arising out of any alleged or actual patent, copyright, trade secret, trademark, trade name, or other Intellectual Property Rights infringement or other claim, demand or action resulting from the advertising, promotion, manufacture, sale, distribution or use of the Products and the Brand.

19.10   Unless otherwise indicated, all of the content featured or displayed on the Website, including, but not limited to, text, graphics, data, photographic images, moving images, sound, illustrations, software, product description content including (without limitation) product care labels created, directly or indirectly, by ROSY RAIN in connection with the Products and the selection and arrangement thereof (“ROSY RAIN Images Content”), for the use on the Website at ROSY RAIN’s sole discretion, and the Intellectual Property Rights embodied in the ROSY RAIN Images Content, is owned by ROSY RAIN, its licensors, or its third-party image Sellers. All elements of the Website, including the ROSY RAIN Images Content and the Intellectual Property Rights embodied therein, are protected by copyright, trade dress, moral rights, trademark and other laws relating to the protection of intellectual property.

19.11      The Seller shall not use the Website or the ROSY RAIN Images Content for any purpose not related to this Agreement, unless ROSY RAIN has given prior written approval to the Seller. The Seller is, in all events, prohibited from: (a) downloading, copying, or re-transmitting any or all of the Website or the ROSY RAIN Images Content without, or in violation of, a written license or agreement with ROSY RAIN; (b) using any data mining, robots or similar data gathering or extraction methods; (c) manipulating or otherwise displaying the Website or the ROSY RAIN Images Content by using framing or similar navigational technology; (d) sharing or allowing any person or company to use the ROSY RAIN Images Content; (e) reverse engineering, altering or modifying any part of the Website or the ROSY RAIN Images Content; (f) circumventing, disabling or otherwise interfering with security-related features of the Website or any system resources, services or networks connected to or accessible through the Website; (g) selling, licensing, leasing, or in any way commercializing the Website or the ROSY RAIN Images Content to any third party including (without limitation)  competitors of ROSY RAIN by way of example and without limitation Lazada and Reebonz without prior written authorisation from ROSY RAIN; and (h) using the Website or the ROSY RAIN Images Content other than for its intended purpose as set out in this Agreement. Such unauthorised use may violate applicable laws including without limitation copyright and trademark laws, the laws of privacy and publicity, and media and telecommunications law and statutes.

19.12      The Seller acknowledges that ROSY RAIN owns the Intellectual Property Rights embodied in the ROSY RAIN Images Content and reserves the right to authorise any other party to use, copy, publish or advertise the ROSY RAIN Images Content.

19.13     In the event of a breach of this Clause by the Seller, ROSY RAIN shall have the right to immediately terminate this Agreement without notice and claim all damages and losses arising out of such breach from the Seller.

20.       RETURNS OF PRODUCTS

20.1     The Seller agrees to accept returns of Products in the following cases:

(a)        Faulty Product;

(b)        Damaged Product;

(c)        Incorrect Product; and/or 

20.2     Shipping costs shall be borne by the Seller for all Products returned in accordance with Clauses 20.1(a), (b), (c) and (d) in accordance with the following:

(a)           

from the Customer to ROSY RAIN

ROSY RAIN shall bear the cost;

(b)           

from ROSY RAIN to the Seller

Seller shall bear the cost in accordance with the 3PL’s rate.

20.3  If any Product is returned due to reasons listed in clause 20.1 (a), (b) or (c), Seller shall pay to ROSY RAIN liquidated damages in accordance with the Commercial Terms.

20.4 For all returned Products, the Seller remains liable to ROSY RAIN for the Sellers Revenue in full which ROSY RAIN previously received.

20.5  All returned Products will be inspected by ROSY RAIN’s quality control team and ROSY RAIN’s decision shall be deemed final and accepted by the Seller.

20.6  Any Products returned by the Customer in accordance with ROSY RAIN’ return policy and/or this Agreement will be processed by ROSY RAIN in accordance with Clause 20.7 below.

20.7  The Seller may choose to either have the returned Products delivered back to its location by ROSY RAIN or it may choose to collect the returned Products from a designated  warehouse indicated by ROSY RAIN, within fourteen (14) calendar days of ROSY RAIN communicating the same to the Seller. In the event the Seller does not exercise any of the above options within fourteen (14) calendar days the products will automatically be delivered back to Seller’s warehouse. The Seller may request ROSY RAIN in writing to have the returned Products permanently destroyed and/or disposed of by ROSY RAIN (at ROSY RAIN’s sole discretion), at the Seller’s sole cost and expense.

20.8  If the total number of accumulated returns from the Seller exceed forty (40) products at any given time, ROSY RAIN shall have the right to deliver such returns back to the Seller with immediate effect. Shipping costs in accordance with clause 20.2 shall apply.

21.       CONFIDENTIALITY

21.1  All Customer information and data, designs, drawings, specifications, communications, whether written, oral, electronic, visual, graphic, photographic, observational, or otherwise, and documents supplied, revealed or disclosed in any form or manner to the Seller by ROSY RAIN, or produced or created by the Seller for ROSY RAIN hereunder (“Information”) are proprietary and confidential to ROSY RAIN and shall be used solely by the Seller for purposes of this Agreement. All such Information shall be treated and protected by the Seller as strictly confidential, and shall not be disclosed to any third party without the prior written consent of ROSY RAIN, and shall be disclosed within the Seller’s organisation only on a need-to-know basis. The Seller shall, in particular, refrain from using any Customer information and data obtained from ROSY RAIN for its own marketing, advertising and/or promotion purposes.

21.2     ROSY RAIN may require the Seller’s employees and other personnel involved in the performance of this Agreement to execute a confidentiality agreement prior to any disclosure. Any non-disclosure agreement hereto executed by the Seller in connection with ROSY RAIN’s business, this Agreement, or any other agreement pertaining to the Products, is hereby expressly incorporated within this Agreement.

21.3   The Seller shall immediately return to ROSY RAIN any Information provided, either upon demand, or upon expiry or early termination of this Agreement, including all copies made by the Seller.

The Seller shall not disclose the existence, content, or scope of this Agreement or make any reference to ROSY RAIN, the business of either, or the project for which the Agreement is made, to any third party, and through any medium of communication whatsoever without obtaining the prior written consent of ROSY RAIN.

22.    COMPLIANCE

22.1  In its performance under this Agreement, both Parties shall strictly comply with all applicable laws, treaties, ordinances, codes and regulations of any jurisdiction where this Agreement may be performed. Upon ROSY RAIN’s written request, the Seller shall provide any written certification of compliance required by any federal, state, or local law, ordinance, code, or regulation.

22.2  Child labour. The Seller shall not and shall procure that its manufacturers shall not use any workers under the legislated minimum age of workers in the manufacturing and production industry in the relevant jurisdiction. In the event that there are no minimum age restrictions under the laws of such jurisdiction, the Supplier shall not and shall procure that its manufacturers shall not use any workers under the age of  fourteen (14).

 22.3  Forced labour. The Seller shall not and shall procure that its manufacturers shall not use or allow the use of forced labour, whether the forced labour is direct, through physical constraints, or indirect, through threats, intimidation, withholding of official documents and/or other methods.

 22.4  Health and safety. The Seller represents and warrants and shall procure that its manufacturers represent and warrant that the work environment where the Products are manufactured is safe and the Seller takes and procures its manufacturers to take adequate reasonable measures to avoid accidents and bodily injuries occurring on the job.

22.5  The Seller agrees to release, defend, indemnify and hold harmless ROSY RAIN and the Indemnified Party from and against all and any Losses, arising from or alleged to arise from any violation, alleged violation, or failure to comply with, the terms of this Paragraph by the Seller or any person for whom the Seller may be responsible. Notwithstanding any other provision in the Agreement to the contrary, nothing contained herein shall oblige ROSY RAIN or the Seller to engage in any action or omission to act which would be prohibited by or penalized under the laws or regulations of Hong Kong or the Territory.

23.    ASSIGNMENT

23.1  Neither Party may assign the Agreement, or any part hereof, or any money due hereunder, without the prior written consent of the other Party. If consent is granted, any such assignment by a Party shall not increase or alter the other Party’s obligations nor diminish the rights of the other Party, nor relieve the Party of any of its obligations under the Agreement.

23.2  ROSY RAIN reserves the right to assign the Agreement, in whole or in part, to any party, including ROSY RAIN’s affiliates.

23.3  The Seller shall give ROSY RAIN prompt written notice of any change in its ownership re-organisation, and changes in the manufacture or production of the Products provided hereunder.

24.    NOTICES

24.1  All notices, demands or other communications required or permitted to be given or made hereunder shall be in writing and delivered by hand, by courier or prepaid registered post with recorded delivery and marked for the attention of such person (if any), designated by it to the other Party for the purposes of this Agreement or to such other address or facsimile number, and marked for the attention of such person, as a Party may from time to time duly notify the other in writing. The initial address, fax number and person (if any) so designated by ROSY RAIN are set out below:

ROSY RAIN

Address:

Unit 1305, Wang Fai Industrial Building, 29 Luk Hop Street, Hong Kong

Attention:

Seller Support Team

  

The address, fax number (if any), person so designated by the Seller shall be such as is provided in the Seller Profile in Seller Center.

Any notice, demand or communication so served by hand, courier with recorded delivery, fax or post shall be deemed to have been duly given:

(a)        in the case of delivery by hand or by courier, when delivered;

(b)        in the case of fax, at the time of transmission;

(c)        in the case of post, on the second Business Day after the date of posting (if sent by local mail) or on the seventh Business Day after the date of posting (if sent by air mail);

(d)        in the case of e-mail, at the time of transmission,

provided that in each case where delivery by hand, by courier or by fax occurs on a day which is not a Business Day or after 6.00 p.m. on a Business Day, service shall be deemed to occur at 10.00 a.m. on the next following Business Day.

24.2  References to time in this Clause are to the local time in the country of the addressee.

25.    ANTI-CORRUPTION AND ANTI-BRIBERY

25.1  The Parties hereby undertake that, at the date of the entering into force of the Agreement, itself, its directors, officers or employees have not offered, promised, given, authorised, solicited or accepted any undue pecuniary or other advantage of any kind (or implied that they will or might do any such thing at any time in the future) in any way connected with the Agreement.

25.2  Each Party agrees that it will not use money or other consideration paid by the other Party for unlawful purposes, in order to assist the other Party or anyone acting on its behalf in obtaining or retaining business with, or directing business to, any person, or securing any improper advantage.

25.3  A Party shall be entitled to terminate this Agreement and to recover from the defaulting Party the amount of any loss resulting from such termination, if a Party has sufficient reasons to believe that:

(a)        any of the representatives of the defaulting Party shall have offered or given or agreed to give to any person associated with the Party any gift or consideration of any kind as an inducement or reward for doing, for forbearing to do or for having done or forborne to do any action in relation to the obtaining or execution of the Agreement with the Party or for showing or forbearing to show favour to any person in relation to any other agreements with the Party;

(b)        any person employed by the defaulting Party or acting on its behalf (whether with or without the knowledge of the defaulting Party) has engaged in the aforementioned acts; or

(c)        any of the representatives of the defaulting Party and/or any person employed by the defaulting Party or acting on its behalf:

(i)         has committed any offence under the Anti-Corruption Laws in Hong Kong; or

(ii)        has abetted or attempted to commit such an offence.

26.    INDEMNITY

26.1  The Seller shall indemnify ROSY RAIN and the Indemnified Party against any and all Losses caused by acts of the Seller not authorised by this Agreement or by any willful misconduct or negligent act of the Seller.

27.    LIMITATION OF LIABILITY

27.1  Notwithstanding any provision to the contrary contained herein, the total aggregate liability of ROSY RAIN to the Seller arising out of or in connection with this Agreement in respect of all claims, loss, liabilities, indemnities, fines, penalties and similar charges, payments and damages of every kind and nature whatsoever, whether by way of indemnity or by reason of any breach of this Agreement or in tort, (including, without limitation, sole or concurrent, active or passive negligence) or breach of any duty or otherwise, shall not exceed in aggregate the total order value of the Products which is the cause of such claims.

28.       CONSEQUENTIAL LOSS

28.1     ROSY RAIN shall in no event be liable to the Seller, whether in contract, under statute, tort (including negligence or breach of statutory duty) or howsoever otherwise arising and whatever the cause thereof, for any loss of profit, loss of revenue, loss of production, loss of business opportunity, loss of capital, loss of goodwill, increased cost of working, loss of use, loss of contract or any indirect, remote, incidental, unforeseeable or consequential loss or damages or exemplary or punitive damages.

29.       GENERAL

29.1     ROSY RAIN may from time to time vary or amend this Agreement by giving reasonable notice to the Seller via Seller Center. If the Seller does not agree to the variations or amendments made by ROSY RAIN, the Seller has the right to terminate this Agreement by giving a fourteen (14) days’ prior notice to ROSY RAIN. In accordance with clause 17.2 of this Agreement, ROSY RAIN may terminate this Agreement if any amendment made to this Agreement is notified to the Seller and has not been accepted by the Seller within the prescribed timeline.

29.2     No waiver by ROSY RAIN of any breach of the Agreement by the Seller shall be considered as a waiver of any subsequent breach of the same or any other provision.

29.3     If any provision of this Agreement is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.

29.4     This Agreement (together with any documents referred to herein) embodies all the terms and conditions agreed upon between the Parties as to the subject matter of this Agreement and supersedes and cancels in all respects all previous agreements and undertakings, if any, between the Parties with respect to the subject matter hereof, whether such be written or oral.

29.5     A person who is not a party to this Agreement (including any employee, officer, agent, representative, or sub-agreement of either party) shall have no right under the local law and/or jurisdiction of the Parties, including but not limited to Hong Kong Contracts (Rights of Third Parties) Bill or Contracts (Rights of Third Parties) Act (Chapter 53B of Hong Kong) to enforce any terms of this Agreement which expressly or by implication confers a benefit on that person without the express prior Agreement in writing of the Parties.

29.6     The construction, validity and performance of this Agreement shall be governed by the laws of Hong Kong. Any dispute arising out of or in connection with this Agreement, including any question regarding its existence validity or termination, shall be submitted to the exclusive jurisdiction of the courts in Hong Kong.

29.7     ROSY RAIN shall be entitled to commence court legal proceedings for the purposes of protecting its confidential information or any exclusivity rights, as contained in the Agreement, by means of injunctive or other equitable relief.

29.8     Time whenever mentioned in this Agreement shall be of the essence.

This Marketplace Sellers Agreement (hereinafter referred to as “Agreement”) is made and entered into by and between Beauty People Cooperate Limited., a company incorporated pursuant to the laws of Hong Kong with registration number 60599172-000 and having its registered address at Unit 1305, Wang Fai Industrial Building, 29 Luk Hop Street, Sang Po Kong, Hong Kong, hereinafter referred to as “rosy rain”; and and “You” /“Seller” as identified in Seller Center under the head ‘Seller Profile’.

This Agreement will come into effect on the date at which the Seller accepts the electronic Agreement in Seller Center (“Effective Date”).

The aforesaid organisations are hereinafter referred to individually as “Party” and collectively as “Parties”.

WHEREAS

(A)        ROSY RAIN conducts business through, inter alia, the sale of various products on the internet.

(B)        The Seller is the owner and/or authorised distributor of the Brand and the Products, including but not limited to the Intellectual Property Rights embodied in the Brand and the Products.

(C)       The Seller intends to sell the Products on the Website and ROSY RAIN has agreed to provide its Website as a platform for the sale of such Products in accordance with the terms and conditions contained herein.

AND NOW IT IS HEREBY AGREED AS FOLLOWS:

1.          INTERPRETATION

1.1.         The Commercial Terms as set out in your Seller Profile in Vendor Platform an integral part of this Agreement and shall be read and construed as one document.

1.2          In this Agreement, unless the subject or context otherwise requires, the following words and expressions shall have the following meanings

Agreement

this Framework Purchase Agreement duly signed and stamped by the Parties, including any schedules, appendices and annexures attached hereto, including the agreement concluded between the Seller and the Customer via the Website for the sale of the Products to Customers;

Business Day

a day, from 10.00 a.m. to 6.00 p.m., (excluding Saturdays, Sundays and Public Holidays) on which commercial banks are open for business in Hong Kong;

Conditions

the general terms and conditions set out in this Agreement and (unless the context otherwise requires) any additional terms and conditions mutually agreed upon in writing by both Parties;

Commercial Terms

Commercial terms governing your relationship with ROSY RAIN, which are legally binding and are available on Seller Center. These include but are not limited to certain service fees, Seller Handling Time etc.

Failed Delivery

(a)       An event when the Seller is not present when ROSY RAIN’s 3PL arrives for collection of Products, and/or

(b)      the Products are not ready for delivery;

Seller Handling Time

the time taken for the Seller to confirm and prepare the order for collection . Seller Handling Time is prescribed in the Commercial Terms;

HKD

Hong Kong Dollar, being the lawful currency in Hong Kong;

in writing / written

in written form by means of  a letter and signed, which includes any electronic mail sent from the e-mail address of and provided by the Parties and any comparable means of communication that  results in a permanent record being made;

Indemnified Party

ROSY RAIN and its affiliates, shareholders, directors, employees, associates, agents, users, successors, and assigns;

Intellectual Property Rights

the legal rights or interests evidenced by or embodied in:

(i)        any idea, design, concept, method, technique, invention, discovery, improvement and enhancement regardless of patentability, including but not limited to patents, patent applications, trade secrets and know-how;

(ii)       any work of authorship, regardless of copyright ability, including but not limited to copyrights and any moral rights recognized by law; and/or

(iii)      any trade mark, trade name, trade dress or domain name or reference mark or identification, whether registered or unregistered, together with any and all worldwide vested and/or inchoate rights in and to any or all of the foregoing under any issued, pending and/or later filed applications for patent or trade mark registration, utility models and/or any form of protection of various forms of intellectual and/or industrial property recognized anywhere in the world including any and all rights of domestic and/or foreign priority, the right to sue and recover damages for infringements including without limitation, any past infringements;

List Price

the actual selling price set by the Seller and represented to the Customers on the Website;

Losses

all claims, losses (including without limitation, all damages, expenses, fees, fines, penalties, court costs and reasonable attorneys’ fees), liabilities (criminal or civil), demands, suits, causes of action of every kind and character;

Payment Gateways

online payment services offered by ROSY RAIN to the Seller;

Payment Gateway Fee

the fee payable by the Seller to ROSY RAIN in consideration of the Payment Gateways provided by ROSY RAIN, to be calculated in accordance with the Commercial Terms;

Per Product Service Fee

The fee charged by ROSY RAIN for provision of shipping and handling services. This fee shall be charged per Product, and shall be first borne by ROSY RAIN on behalf of the Seller which the Seller shall reimburse to ROSY RAIN in accordance with the Commercial Terms;

Products

Products (including any installment of the Products or any parts thereof) and services where appropriate, marketed under the Brand which the Seller intends to sell to Customers through the Website;

Seller Center

portion or part of the Website which is specifically created and set aside by ROSY RAIN for use by the Seller for the sale of the Products on the Website ;

Sellers Revenue

means the difference of: the List Price (excluding VAT) minus the Selling Fee and any ROSY RAIN promotional voucher agreed to be absorbed by the Seller;

Selling Fee

the fee that ROSY RAIN will charge to the Seller on each Product sold via the Website, which shall be in accordance with the Commercial Terms;

Subscription Fee

the monthly subscription fee payable by the Seller to ROSY RAIN in accordance with the Commercial Terms;

SKU

(Stock Keeping Unit)

the distinct Product offered for sale by the Seller which embodies all attributes associated with the Product and that distinguishes it from all other products;

Territory

Hong Kong;

VAT

value added tax;

Website

the website located a https://www.rosy-rain.com/;

ROSY RAIN’s 3PL / 3PL

the third party logistics services provider engaged by ROSY RAIN to collect the Products from the Seller and to deliver the Products to the Customers or from ROSY RAIN’s warehouse to the Customers.

 1.3    In this Agreement, unless otherwise stated (or unless the context otherwise requires):

(a)        references to “Clauses” and “Appendices” are, unless otherwise stated, to clauses and appendices to this Agreement;

(b)        words importing the singular shall include the plural and vice versa;

(c)        words importing the masculine gender shall include the feminine gender and vice versa;

(d)        words importing an individual shall include a corporation and vice versa;

(e)        the headings are inserted for convenience only and shall not affect the construction of this Agreement;

(f)         the terms “other”, “include”, “including”, “for example” and “in particular” do not limit the generality of any preceding words and any words which follow them shall not be construed as being limited in scope to the same class as the preceding words where a wider construction is possible;

(g)        the expression “this Agreement” or any similar expression shall mean this Agreement and any supplemental written Agreement hereto as may be in force from time to time; and

 

(h)        references to a particular law (including a statute or statutory provision) shall be construed as references to that law as it is in force at the relevant time taking account of any amendment, re-enactment or extension and shall include any subordinate legislation for the time being in force made under it.

2.          BASIS OF THE AGREEMENT

2.1       Subject to this Agreement, to the exclusion of any other terms and conditions contained or referred to in any documentation submitted by the Seller or in correspondence or implied trade custom practice or course of dealing, which outlines the terms and conditions under which, ROSY RAIN and the Seller will work together so as to enable the Seller to use of the Website as a platform for the sale of the Products.

2.2       No variation or amendment made by the Seller to this Agreement shall be binding unless expressly agreed in writing and signed by the authorised representatives of both Parties. For the avoidance of doubt, any director of the Seller and ROSY RAIN shall be deemed to be authorised representatives of the Seller and ROSY RAIN respectively.

2.3       In the event the Seller ascertains any requirement or provision of this Agreement that may conflict with any other requirement or provision, the Seller shall give ROSY RAIN a written notice of such alleged conflict within seven (7) calendar days from the Effective Date. Any such conflict shall be referred to ROSY RAIN for resolution in ROSY RAIN’s absolute and sole discretion. In the event that the Seller fails to provide such written notice within the time stipulated, any costs incurred in correcting the erroneous interpretation shall be borne fully by the Seller.

3.          TERM AND RENEWAL

3.1       Upon execution of this Agreement by the Parties, this Agreement shall remain in effect for a period of ten (10) years unless earlier terminated by the Parties in accordance with the terms of this Agreement.

3.2       Both Parties acknowledge and agree that:

(a)        the expiry or early termination of this Agreement for whatever cause shall not affect any provision of this Agreement which by its construction, was intended to survive or operate (expressly or by implication) in the event of such expiry or early termination and such obligations shall continue to survive until the completion of the Parties’ obligations; and

(b)        upon the expiry or early termination of this Agreement, with the exception of any loss, cost or expense incurred arising from any default, willful misconduct, fraud or gross negligence of the other Party, no Party shall have any obligation or liability to pay the other Party any form of compensation whatsoever.

4.          SUPPLIER PARTNERSHIP

4.1       ROSY RAIN agrees to provide the Website as a platform to the Seller for the sale of the Products, provided all Conditions set out in this Agreement are complied with by the Seller.

4.2       ROSY RAIN shall facilitate the Customers to purchase the Products through the Website, upon which ROSY RAIN will forward each order made by the Customers through the Website to the Seller in accordance with Clause 8 below. For the avoidance of doubt, each order made by the Customers for the sale of Products shall be deemed to be an Agreement entered into between the Customer and the Seller.

4.3       Each Party represents and undertakes that it is entering this Agreement as independent contractors. Neither Party shall have any right, power or authority to enter into any Agreement for or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other Party. This Agreement shall not be interpreted or construed to create an employment relationship, joint venture or partnership between the Parties or to impose any liability attributable to such relationship upon either Party. The use of the term “Seller” or “partnership” herein does not create a partnership between the Parties.

5.          COMMISSION/FEES

5.1       All fees under this Agreement shall be paid in accordance with the Commercial Terms.

5.2       ROSY RAIN will issue invoices to the Seller for all fees payable pursuant to the Commercial Terms on a monthly basis and the Seller shall pay to ROSY RAIN in accordance with Clause 13 below.

6.          SCOPE AND PRESENTATION OF PRODUCTS

6.1       Prior to the Products being featured and listed on the Website for sale, the types of Products shall be mutually selected and agreed upon by both Parties in writing and the Seller may, subject to Clause 7.4 below, have the flexibility over determining the prices of the Products, which shall be sold on the Website in order to maintain ROSY RAIN’s assortment of products and ROSY RAIN shall not be liable to the Seller for any losses arising out of or in connection with the sale of the Products thereof.

6.2       ROSY RAIN reserves the right to control the look and feel of the Website and has a right to remove the Products that in ROSY RAIN’s sole and absolute discretion, may not contribute to the assortment, may be unfit for sale on the Website, or when it is deemed by ROSY RAIN, in its sole and absolute discretion, that the Seller is operationally incapable.

6.3       The Seller shall provide the images, information and specifications of the Products in accordance with the requirements set out in the Commercial Terms.

6.4       The Seller shall maintain the minimum quantity of SKUs on the Website as per the Commercial Terms, in order to remain an active Seller on the Website.

6.5       The Seller agrees to make good, amend, replace, rectify or repair all defects of the Products to ROSY RAIN or the Customers, as the case may be, as required by ROSY RAIN, by law or by this Agreement.

6.6    The Seller acknowledges and hereby agrees that ROSY RAIN shall have the right to advertise the Products on the websites of its business Sellers and affiliates for the purposes of selling the Products to the Customers.

7.      INVENTORY AND PRICING OF PRODUCTS

7.1 Unless the goods are stored in the warehouse of ROSY RAIN, otherwise shall be managed by the seller through the seller’s center, and the seller shall update their stocks through the seller’s center every day.

7.2       All Products listed by the Seller on the Website shall be available in the Seller’s inventory. In the event the Customer orders a Product which is found to be out of stock (“OOS”) by the Seller, the Seller shall refill the stock or update the inventory in Seller Center.  For each OOS situation over 7 days, the Seller shall be liable to pay ROSY RAIN liquidated damages in accordance with the Commercial Terms 

7.3       The List Price on the Website shall not be unreasonable or substantially different from the selling price set by the Seller for the sale of such a Product, through any other channels, within the Territory.

8.          SALE AND FULFILMENT OF THE PRODUCTS ON THE WEBSITE

8.1       Upon receipt of an order for the purchase of the Products by a Customer, ROSY RAIN shall furnish the Seller with details of the ordered Products, including the Seller’s SKU or bar code of the Products and the details contained in the Customer’s order.

8.2       The Seller shall review all Customers’ orders forwarded to it by ROSY RAIN on a daily basis. In the event the Seller reasonably anticipates or ascertains that it is unable to fulfil any such order, it must cancel the said order immediately (in accordance with clause 7.2 above) and inform ROSY RAIN of the cancellation immediately.

8.3       All agreements entered into between the Seller and the Customers for the sale and purchase of the Products on the Website shall be entered into on the basis of ROSY RAIN’s Terms and Conditions  and ROSY RAIN’s Return Policy provided on the Website (https://www.rosy-rain.com/returns).

8.4       The Seller hereby acknowledges and agrees that ROSY RAIN reserves its rights, at its sole discretion, to unilaterally change, modify, add or delete parts of its Terms and Conditions and Return Policy at any time.

8.5       Notwithstanding anything to the contrary in this Agreement, both Parties hereby acknowledge and agree that the sale shall be deemed complete when full payment of the Products by the Customer has been received by ROSY RAIN, where the Seller shall be obliged to supply the Products to the Customer.

8.6       ROSY RAIN may at its sole discretion, move certain SKUs/Products to the ROSY RAIN Outlet section of the Website.

9.          ORDER DISPATCHING AND CANCELLATIONS

9.1       Upon receipt of information regarding any orders from ROSY RAIN, the Seller shall process each Customer order in a timely manner and in accordance with Clause 10 below such that all Products shall have a Seller Handling Time in accordance with the Commercial Terms. In the event of any delay, either materialized or foreseen, the Seller shall inform ROSY RAIN of the same in writing immediately.

9.2       The Seller shall at all times perform dispatch of Products within the Seller Handling Time.  A failure to comply with this Clause 9.2 shall entitle ROSY RAIN to terminate this Agreement immediately, and the Seller shall be liable for liquidated damages as set out in the Commercial Terms.

9.3       ROSY RAIN shall be entitled to cancel every order that has not been dispatched by the Seller within the Seller Handling Time.

9.4       The 3PL shall make a maximum of three (3) attempts to collect the order from the Seller. Each Failed Pick-up shall be charged to the Seller as liquidated damages in accordance with the Commercial Terms. After the third Failed Pick-up, ROSY RAIN will be entitled to cancel the order immediately, with no further obligation to the Seller.

9.5       The Seller agrees to maintain its stock of the Products and to maintain a cancellation rate which is less than the prescribed limit as per the Commercial Terms. A failure to comply with this Clause 9.5 shall entitle ROSY RAIN to terminate this Agreement immediately.

9.6       Seller acknowledges and agrees that that any payment of liquidated damages under this Agreement is a genuine pre-estimate of ROSY RAIN’s losses in case such breach occurs, and said sums shall be paid as liquidated damages for delay and not as a penalty.

10.       PRODUCT PACKAGING

10.1     Subject to this Agreement, ROSY RAIN may provide the Seller with any or all of the following packaging materials for the Seller to attach it accordingly to the Products for each delivery:

(i)         the appropriate pre-paid shipping labels;

(ii)        the Product’s packaging material;

(iii)       invoice; and/or

(iv)       the Products’ return form for the Customer in the event of a return.

Both Parties acknowledge and agree that in the event the Seller fails to provide an invoice set out in Clause 10.1(iii) above in the package, or the Customer misplaces a return slip set out in Clause 10.1(iv)

above, ROSY RAIN shall have the right to extract these materials from the Seller Centre and send it to the Customer.

10.2     Upon receipt of information regarding any Customer’s order from ROSY RAIN, the Seller shall be responsible of the packaging the Products with the packaging materials as set out in Clause 10.1 above that are provided by ROSY RAIN and shall bear all the costs arising out of or in connection thereto.

10.3     The Seller is prohibited to include any branding or promotional inserts in or on any packaging or labelling in connection with the Products, other than as provided and/or approved by ROSY RAIN in writing.

11.       QUALITY CONTROL AND SHIPPING OF THE PRODUCTS

11.1     All delivery and dispatch of the Products will be performed by ROSY RAIN’s 3PL, where ROSY RAIN reserves its rights to change its 3PL from time to time at its own discretion.

11.2     The Seller agrees that the Products delivered to the Customer through ROSY RAIN’s 3PL shall be of satisfactory quality (within the meaning of the Sale of Goods Act, Cap 393, as amended) and fit for any purpose held out by the Seller or made known to the Seller by the Customer.

11.3     Notwithstanding anything in the Agreement to the contrary, ROSY RAIN shall in no event bear any liability for any the quality of the Products including a change in the quality of Products at any time.

11.4     The Seller agrees to pay ROSY RAIN Per Product Service Fee in accordance with the Commercial Terms.

12.       CUSTOMER SERVICE

12.1     ROSY RAIN shall forward to the Seller all questions and complaints received by ROSY RAIN pertaining to the Products. The Seller shall revert to ROSY RAIN on all such questions and complaints within two (2) Business Day.

12.2     The Seller shall in no event, directly or indirectly, direct, encourage, lead, promote, solicit and/or tout the Customers to purchase any Products through any other sources other than the Website. A failure to comply with this Clause 12.2 shall entitle ROSY RAIN to terminate this Agreement immediately.

12.3     In the event the Seller wishes to cancel an order for reasons which are beyond the Seller’s control (for example: duplicate orders) and because of no fault or negligence on its behalf, it shall promptly notify the relevant account manager/point of contact at ROSY RAIN. ROSY RAIN will investigate the cancellation request. If ROSY RAIN believes that there has been no fault or negligence on behalf of the Seller, ROSY RAIN will cancel the order immediately and the Seller will have no further obligation in respect of such order.

13.    INVOICING AND PAYMENT

13.1  Within ten (10) Business Days from the close of every month, ROSY RAIN will issue a sales report/statement to the Seller showing all sales made for the Seller’s account. The Seller shall have five (5) Business Days from the date of the sales report/statement, to contact ROSY RAIN for any questions and/or queries related to the sales report/statement. ROSY RAIN will not be obliged to address to any questions and/or queries after the end of the time stipulated. Each sale shall be recorded by ROSY RAIN in accordance with Clause 8.5 of this Agreement. Any changes to this clause shall be reflected in the Commercial Terms.

13.2  Upon receipt of the full payment from the Customers for the Products sold on the Website upon the Products being delivered. ROSY RAIN shall thereafter pay to the Seller the sum received from the Customers within thirty (30) calendar days from the close of the month whereby such sums shall be subjected to any off set against payments due by the Seller to ROSY RAIN including but not limited to the following:

(a)        the Selling Fee, Subscription Fee, Payment Gateway Fee and Per Product Shipping Fee as listed in the Commercial Terms;

(b)        any other sums or fees owed by the Seller to ROSY RAIN;

(c)        any claims of third parties against ROSY RAIN arising out of or in connection with the Seller’s performance, whether under any order or other document; and/or

(d)        such an amount legally required to be withheld and remit the same to the taxing authority of any jurisdiction relevant to the transaction, if any.

13.3  Subject to Clause 13.2 above, where there is a negative balance, the Seller shall make payment of all invoices issued by ROSY RAIN by means of telegraphic transfer or cheque within seven (7) Business Days from the date of the respective invoice. All invoices issued by the Seller shall be paid for in HKD.

13.4  The Seller shall be responsible for payment of all sales, use, excise, value-added/goods and services tax, business, and other taxes, any taxes, which may be imposed on the basis of any revenue, income, net income, or capital and any taxes imposed in lieu thereof, and all duties, fees, or other assessments of whatever nature imposed by governing authorities or any jurisdiction applicable in connection with performance under this Agreement. The Seller shall release, defend, indemnify, and hold ROSY RAIN and the Indemnified Party harmless from and against any Losses, arising out of, alleged to arise out of, or in any way associated with the Seller’s failure to comply with the terms of this Clause.

14.       WARRANTIES

14.1     The Seller warrants to ROSY RAIN that all the Products sold on the Website, whether manufactured, fabricated, or otherwise produced or provided by the Seller or others, will:

(a)        strictly conform to the specifications, drawings, samples, performance criteria, and other descriptions referred to or provided on the Website;

(b)        be of merchantable quality and fit for the purpose(s) intended;

(c)        conform with all applicable laws, ordinances, codes and regulations in the jurisdiction where the sale is effected, and

(d)        be free from defects in materials, performance, operation, and workmanship.

 

14.2     The Seller further warrants and represents to ROSY RAIN that:

(a)        the entry into this Agreement and the performance thereof by the Seller has been duly authorised by all necessary corporate action and constitutes a valid and binding Agreement of the Seller, enforceable against the Seller in accordance with the terms thereof;

(b)        it shall conduct its business and perform its obligations herein in accordance with the highest business standards and will not commit any act which will or may negatively affect the business integrity, reputation or goodwill of ROSY RAIN;

(c)        all information, including but not limited to all information furnished to ROSY RAIN with regards to the Products and the Brand, are accurate and up-to-date;

(d)        all consents, waivers, approvals, authorisations, registrations, licenses or declarations of or by or filing with, any government authority or contracting party which are required to be made or obtained by the Seller in connection with the entry into this Agreement or/and necessary for ROSY RAIN to feature the Seller’s Products and the Brand on the Website, for performance of the Agreement have been procured and duly obtained at its own cost; and

(e)        the entry, delivery and performance of the Agreement by the Seller will not violate or conflict in any material respect with any law, statute, rule, regulation, ordinance, code, judgment, order, writ, injunction, decree or other requirement of any court or of any governmental body or agency thereof applicable to the Seller.

(f)         Seller takes full responsibility for any person who is authorised by the Seller to use the Seller account on Seller Center. Seller shall be liable and held responsible for all acts and/or omissions committed by such person as though such acts and/or omissions were committed by the Seller itself.

14.3     The obligations under this clause survive the expiry or early termination of this Agreement.

15.       ANTI-BRIBERY REPRESENTATION

15.1     The Seller has not, and to the Seller’s knowledge no representative of the Seller or any other person on the their behalf has, offered or given anything of value to: (i) any official, member, employee or customer or a governmental entity, any political party or official thereof, or any candidate for political office; (ii) any customer or member of the government; or (iii) any other person, in any such case while knowing or having reason to know that all or a portion of such money or thing of value may be offered, given or promised, directly or indirectly, to any customer, member of the government or candidate for political office for the purpose of the following: (i) influencing any action or decision of such person, in his official capacity, including a decision to fail to perform his or its official function; (ii) inducing such person to use his or its influence with any government or instrumentality thereof to affect or influence any act or decision of such government or instrumentality to assist the Seller in obtaining or retaining business for, or with, or directing business to, the Seller; (iii) securing any improper advantage; (iv) where such payment would constitute a bribe, kickback or illegal or improper payment to assist the Seller in obtaining or retaining business for or with any person. The Seller has made all payments to third parties by check mailed to such party’s principal place of business or by wire transfer to a bank located in the same jurisdiction as such party’s principal place of business. Each such transaction is properly and accurately recorded on the books and records of the Seller, as the case may be, and each document upon which such entries in each of the Seller’s books and records are based is complete and accurate in all respects. The Seller shall maintain a system of internal accounting controls adequate to insure that the Seller maintains no off-the-books accounts and that the Seller’s assets are used only in accordance with the Seller’s management directives. The Seller shall permit ROSY RAIN or its representatives at any time, with notice not less than 24 hours, to visit the Seller’s premises or other locations where the Seller may maintain its books and other financial records, and to inspect and copy said books and other financial records the Supplier may keep for the last five (5) financial years.

16.           FORCE MAJEURE

16.1     Neither Party shall be liable to the other Party or be deemed to be in breach of the Agreement by reason of any delay in performing or any failure to perform any of a Party’s obligations if the delay or failure was due to any cause beyond a Party’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond a Party’s reasonable control: act of God, explosion, flood, tempest, fire or accident, war or threat of war, civil disturbance or requisition, acts, restrictions, regulations, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority, import or export regulations or embargoes, interruption of traffic, strikes, lock-outs or other industrial actions or trade disputes, interruption of production or operation, difficulties in obtaining raw materials, labour, fuel, parts or machinery, power failure or breakdown in machinery, breakdown of internet services for any reason whatsoever, save for the wilful misconduct or negligence of the Party.

16.2     Upon any of the events set out in Clause 16.1, either Party may at its option:

(a)           fully or partially suspend delivery/performance while such event or circumstances continue; or

(b)           terminate any Agreement so affected with immediate effect by written notice to the other Party and neither Party shall be liable for any loss or damage suffered by the other Party as a result thereof.

16.3     All costs and expenses incurred shall be apportioned accordingly between the Seller and ROSY RAIN at the time of Force Majeure and thereafter payments shall be made to respective Parties based on such apportionment accordingly.

17.       TERMINATION

17.1     Notwithstanding anything to the contrary in this Agreement, either Party may terminate this Agreement by providing at least fourteen (14) calendar day’s prior written notice to the other Party, beyond which the termination shall be effective.

17.2     ROSY RAIN may terminate this Agreement if any amendment made to this Agreement is notified to the Seller and has not been accepted by the Seller within the prescribed timeline.

17.3     ROSY RAIN shall, in addition to any rights or remedies it may have in law, in equity, or under the Agreement, be entitled to terminate the Agreement with immediate effect by written notice to the Seller and the Seller shall not be entitled to any cancellation or other fee or liquidated damageshereunder, in the event the Seller is in breach of any warranty or representation under the Agreement or any of the following clauses: Clause 9.2, Clause 9.4, Clause 12.2 and/or Clause 18.12.

17.4     On or at any time after the occurrence of any of the events below, either Party shall, in addition to any rights or remedies it may have in law, in equity, or under the Agreement, be entitled to terminate the Agreement with immediate effect by written notice to the other Party:

(a)        the other Party being in breach of any other obligation under the Agreement and failed to remedy the same on or before seven (7) calendar days from receipt of a written notice from the Party of such breach;

(b)        the other Party passing a resolution for its winding up or a court of competent jurisdiction making an order for the other Party’s winding up or dissolution;

(c)        the other Party becomes bankrupt/insolvent;

(d)        the making of an administration order in relation to the other Party or the appointment of a receiver over or an encumbrance taking possession of or selling any of the other Party’s assets;

(e)        the other Party making an arrangement or composition with its creditors generally or applying to a Court of competent jurisdiction for protection from its creditors; or

(f)         the other Party ceasing or threatening to cease to carry on business.

17.5     In addition to the events set out in clause 17.4 above, ROSY RAIN reserves a right to terminate this Agreement without cause at any time, by providing immediate notice to the Seller.

 

17.6     Upon termination of this Agreement, the Seller shall immediately inform ROSY RAIN of all concluded Agreements entered into with Customers, which have yet to be fully performed and shall be obliged to perform these Agreements to its full extent.

17.7     For avoidance of doubt, termination of this Agreement shall not in whatsoever manner affect:

(a)        the validity of the order made by and the Agreement concluded with the Customer on or before the date of termination;

(b)        the rights or liabilities of either Party accrued until the date of termination; and/or

(c)        the Seller’s warranties to the Products.

18.    INDEMNIFICATION

18.1  The Seller agrees to release, defend, indemnify and hold harmless ROSY RAIN and the Indemnified Party, against any and all Losses, arising out of, alleged to arise out of, or in any way associated with:

(a)        any defect in the Products sold to any Customer;

 

(b)        any claim made by any Customer on the basis of any Agreement entered into with the Seller;

(c)        any negligence or fault of whatever nature of the Seller or its affiliates, and any director, officer, employee, contractor, or agent; and/or

(d)        any breach in any warranty or representation made herein.

19.       INTELLECTUAL PROPERTY

19.1     The Seller warrants, represents and covenants that its manufacture, sale, distribution and use of the Products and the Brand do not infringe directly or indirectly any (third) party’s Intellectual Property Rights.

19.2     The Seller warrants, represents and covenants that ROSY RAIN’s feature of the Products and the Brand on the Website does not infringe directly or indirectly any (third) party’s Intellectual Property Rights.

19.3     In cases where the Seller opts for ROSY RAIN’s photography services for a prescribed fee, all photographs taken shall remain property of ROSY RAIN and shall be used strictly on the ROSY RAIN website only.

19.4     The Seller undertakes and represents to ROSY RAIN that it has all rights and ownership, or is a licensed user of, all Intellectual Property Rights in relation to the Products and the Brand and the supply of the Products and the Brand including but not limited to any product designs, descriptions, data, information, text, drawings, artwork, photography, graphics, audio, video or other materials related to the Products and the Brand. The Seller undertakes and warrants that it is able to grant and hereby grants ROSY RAIN an irrevocable, non-exclusive and royalty free license to use all such Intellectual Property Rights for the purposes of marketing and featuring the Products and the Brand on the Website including advertising, promoting sales, distributing and selling the Products on-line as provided herein. ROSY RAIN acknowledges that it will not acquire any rights in respect of the Intellectual Property Rights in relation to the Products and the Brand and that all those rights and goodwill are, and will remain, vested in the Seller or the owner of the Intellectual Property Rights (as the case may be).

19.5     The Seller acknowledge and agree that ROSY RAIN shall have the right to edit, modify and/or use all images uploaded by the Seller pertaining to the Products for purposes in connection with (without limitation) advertising, display, marketing and promotion.

19.6     ROSY RAIN shall have the right to use search terms related to the Products and the Brand, to place advertisements or pay for any such search terms with Internet search engines including Google or Yahoo or otherwise use such terms in connection with any Internet search optimisation techniques related to the Products and the Brand.

19.7     ROSY RAIN shall have the right to use any trademarks related to the Products and the Brand, in ROSY RAIN’s paid search advertising program and/or affiliate program or on such affiliate’s websites.

19.8     The Seller represents and warrants to ROSY RAIN that it is not aware of any claims made by any third party with regards to any alleged or actual patent, copyright, trade secret, trademark, trade name, or other Intellectual Property Rights infringement or other claim, demand or action resulting from the manufacture, sale, distribution or use of the Products and the Brand.

19.9     The Seller agrees to release, defend, protect, indemnify and hold ROSY RAIN and the Indemnified Party, harmless from and against any and all Losses arising out of any alleged or actual patent, copyright, trade secret, trademark, trade name, or other Intellectual Property Rights infringement or other claim, demand or action resulting from the advertising, promotion, manufacture, sale, distribution or use of the Products and the Brand.

19.10   Unless otherwise indicated, all of the content featured or displayed on the Website, including, but not limited to, text, graphics, data, photographic images, moving images, sound, illustrations, software, product description content including (without limitation) product care labels created, directly or indirectly, by ROSY RAIN in connection with the Products and the selection and arrangement thereof (“ROSY RAIN Images Content”), for the use on the Website at ROSY RAIN’s sole discretion, and the Intellectual Property Rights embodied in the ROSY RAIN Images Content, is owned by ROSY RAIN, its licensors, or its third-party image Sellers. All elements of the Website, including the ROSY RAIN Images Content and the Intellectual Property Rights embodied therein, are protected by copyright, trade dress, moral rights, trademark and other laws relating to the protection of intellectual property.

19.11      The Seller shall not use the Website or the ROSY RAIN Images Content for any purpose not related to this Agreement, unless ROSY RAIN has given prior written approval to the Seller. The Seller is, in all events, prohibited from: (a) downloading, copying, or re-transmitting any or all of the Website or the ROSY RAIN Images Content without, or in violation of, a written license or agreement with ROSY RAIN; (b) using any data mining, robots or similar data gathering or extraction methods; (c) manipulating or otherwise displaying the Website or the ROSY RAIN Images Content by using framing or similar navigational technology; (d) sharing or allowing any person or company to use the ROSY RAIN Images Content; (e) reverse engineering, altering or modifying any part of the Website or the ROSY RAIN Images Content; (f) circumventing, disabling or otherwise interfering with security-related features of the Website or any system resources, services or networks connected to or accessible through the Website; (g) selling, licensing, leasing, or in any way commercializing the Website or the ROSY RAIN Images Content to any third party including (without limitation)  competitors of ROSY RAIN by way of example and without limitation Lazada and Reebonz without prior written authorisation from ROSY RAIN; and (h) using the Website or the ROSY RAIN Images Content other than for its intended purpose as set out in this Agreement. Such unauthorised use may violate applicable laws including without limitation copyright and trademark laws, the laws of privacy and publicity, and media and telecommunications law and statutes.

19.12      The Seller acknowledges that ROSY RAIN owns the Intellectual Property Rights embodied in the ROSY RAIN Images Content and reserves the right to authorise any other party to use, copy, publish or advertise the ROSY RAIN Images Content.

19.13     In the event of a breach of this Clause by the Seller, ROSY RAIN shall have the right to immediately terminate this Agreement without notice and claim all damages and losses arising out of such breach from the Seller.

20.       RETURNS OF PRODUCTS

20.1     The Seller agrees to accept returns of Products in the following cases:

(a)        Faulty Product;

(b)        Damaged Product;

(c)        Incorrect Product; and/or 

20.2     Shipping costs shall be borne by the Seller for all Products returned in accordance with Clauses 20.1(a), (b), (c) and (d) in accordance with the following:

(a)           

from the Customer to ROSY RAIN

ROSY RAIN shall bear the cost;

(b)           

from ROSY RAIN to the Seller

Seller shall bear the cost in accordance with the 3PL’s rate.

20.3  If any Product is returned due to reasons listed in clause 20.1 (a), (b) or (c), Seller shall pay to ROSY RAIN liquidated damages in accordance with the Commercial Terms.

20.4 For all returned Products, the Seller remains liable to ROSY RAIN for the Sellers Revenue in full which ROSY RAIN previously received.

20.5  All returned Products will be inspected by ROSY RAIN’s quality control team and ROSY RAIN’s decision shall be deemed final and accepted by the Seller.

20.6  Any Products returned by the Customer in accordance with ROSY RAIN’ return policy and/or this Agreement will be processed by ROSY RAIN in accordance with Clause 20.7 below.

20.7  The Seller may choose to either have the returned Products delivered back to its location by ROSY RAIN or it may choose to collect the returned Products from a designated  warehouse indicated by ROSY RAIN, within fourteen (14) calendar days of ROSY RAIN communicating the same to the Seller. In the event the Seller does not exercise any of the above options within fourteen (14) calendar days the products will automatically be delivered back to Seller’s warehouse. The Seller may request ROSY RAIN in writing to have the returned Products permanently destroyed and/or disposed of by ROSY RAIN (at ROSY RAIN’s sole discretion), at the Seller’s sole cost and expense.

20.8  If the total number of accumulated returns from the Seller exceed forty (40) products at any given time, ROSY RAIN shall have the right to deliver such returns back to the Seller with immediate effect. Shipping costs in accordance with clause 20.2 shall apply.

21.       CONFIDENTIALITY

21.1  All Customer information and data, designs, drawings, specifications, communications, whether written, oral, electronic, visual, graphic, photographic, observational, or otherwise, and documents supplied, revealed or disclosed in any form or manner to the Seller by ROSY RAIN, or produced or created by the Seller for ROSY RAIN hereunder (“Information”) are proprietary and confidential to ROSY RAIN and shall be used solely by the Seller for purposes of this Agreement. All such Information shall be treated and protected by the Seller as strictly confidential, and shall not be disclosed to any third party without the prior written consent of ROSY RAIN, and shall be disclosed within the Seller’s organisation only on a need-to-know basis. The Seller shall, in particular, refrain from using any Customer information and data obtained from ROSY RAIN for its own marketing, advertising and/or promotion purposes.

 

21.2     ROSY RAIN may require the Seller’s employees and other personnel involved in the performance of this Agreement to execute a confidentiality agreement prior to any disclosure. Any non-disclosure agreement hereto executed by the Seller in connection with ROSY RAIN’s business, this Agreement, or any other agreement pertaining to the Products, is hereby expressly incorporated within this Agreement.

21.3   The Seller shall immediately return to ROSY RAIN any Information provided, either upon demand, or upon expiry or early termination of this Agreement, including all copies made by the Seller.

The Seller shall not disclose the existence, content, or scope of this Agreement or make any reference to ROSY RAIN, the business of either, or the project for which the Agreement is made, to any third party, and through any medium of communication whatsoever without obtaining the prior written consent of ROSY RAIN.

22.    COMPLIANCE

22.1  In its performance under this Agreement, both Parties shall strictly comply with all applicable laws, treaties, ordinances, codes and regulations of any jurisdiction where this Agreement may be performed. Upon ROSY RAIN’s written request, the Seller shall provide any written certification of compliance required by any federal, state, or local law, ordinance, code, or regulation.

22.2  Child labour. The Seller shall not and shall procure that its manufacturers shall not use any workers under the legislated minimum age of workers in the manufacturing and production industry in the relevant jurisdiction. In the event that there are no minimum age restrictions under the laws of such jurisdiction, the Supplier shall not and shall procure that its manufacturers shall not use any workers under the age of  fourteen (14).

 22.3  Forced labour. The Seller shall not and shall procure that its manufacturers shall not use or allow the use of forced labour, whether the forced labour is direct, through physical constraints, or indirect, through threats, intimidation, withholding of official documents and/or other methods.

 22.4  Health and safety. The Seller represents and warrants and shall procure that its manufacturers represent and warrant that the work environment where the Products are manufactured is safe and the Seller takes and procures its manufacturers to take adequate reasonable measures to avoid accidents and bodily injuries occurring on the job.

22.5  The Seller agrees to release, defend, indemnify and hold harmless ROSY RAIN and the Indemnified Party from and against all and any Losses, arising from or alleged to arise from any violation, alleged violation, or failure to comply with, the terms of this Paragraph by the Seller or any person for whom the Seller may be responsible. Notwithstanding any other provision in the Agreement to the contrary, nothing contained herein shall oblige ROSY RAIN or the Seller to engage in any action or omission to act which would be prohibited by or penalized under the laws or regulations of Hong Kong or the Territory.

23.    ASSIGNMENT

23.1  Neither Party may assign the Agreement, or any part hereof, or any money due hereunder, without the prior written consent of the other Party. If consent is granted, any such assignment by a Party shall not increase or alter the other Party’s obligations nor diminish the rights of the other Party, nor relieve the Party of any of its obligations under the Agreement.

23.2  ROSY RAIN reserves the right to assign the Agreement, in whole or in part, to any party, including ROSY RAIN’s affiliates.

23.3  The Seller shall give ROSY RAIN prompt written notice of any change in its ownership re-organisation, and changes in the manufacture or production of the Products provided hereunder.

24.    NOTICES

24.1  All notices, demands or other communications required or permitted to be given or made hereunder shall be in writing and delivered by hand, by courier or prepaid registered post with recorded delivery and marked for the attention of such person (if any), designated by it to the other Party for the purposes of this Agreement or to such other address or facsimile number, and marked for the attention of such person, as a Party may from time to time duly notify the other in writing. The initial address, fax number and person (if any) so designated by ROSY RAIN are set out below:

ROSY RAIN

Address:

Unit 1305, Wang Fai Industrial Building, 29 Luk Hop Street, Hong Kong

 

Attention:

Seller Support Team

 

 

The address, fax number (if any), person so designated by the Seller shall be such as is provided in the Seller Profile in Seller Center.

Any notice, demand or communication so served by hand, courier with recorded delivery, fax or post shall be deemed to have been duly given:

(a)        in the case of delivery by hand or by courier, when delivered;

(b)        in the case of fax, at the time of transmission;

(c)        in the case of post, on the second Business Day after the date of posting (if sent by local mail) or on the seventh Business Day after the date of posting (if sent by air mail);

(d)        in the case of e-mail, at the time of transmission,

 

provided that in each case where delivery by hand, by courier or by fax occurs on a day which is not a Business Day or after 6.00 p.m. on a Business Day, service shall be deemed to occur at 10.00 a.m. on the next following Business Day.

24.2  References to time in this Clause are to the local time in the country of the addressee.

25.    ANTI-CORRUPTION AND ANTI-BRIBERY

25.1  The Parties hereby undertake that, at the date of the entering into force of the Agreement, itself, its directors, officers or employees have not offered, promised, given, authorised, solicited or accepted any undue pecuniary or other advantage of any kind (or implied that they will or might do any such thing at any time in the future) in any way connected with the Agreement.

25.2  Each Party agrees that it will not use money or other consideration paid by the other Party for unlawful purposes, in order to assist the other Party or anyone acting on its behalf in obtaining or retaining business with, or directing business to, any person, or securing any improper advantage.

25.3  A Party shall be entitled to terminate this Agreement and to recover from the defaulting Party the amount of any loss resulting from such termination, if a Party has sufficient reasons to believe that:

(a)        any of the representatives of the defaulting Party shall have offered or given or agreed to give to any person associated with the Party any gift or consideration of any kind as an inducement or reward for doing, for forbearing to do or for having done or forborne to do any action in relation to the obtaining or execution of the Agreement with the Party or for showing or forbearing to show favour to any person in relation to any other agreements with the Party;

(b)        any person employed by the defaulting Party or acting on its behalf (whether with or without the knowledge of the defaulting Party) has engaged in the aforementioned acts; or

(c)        any of the representatives of the defaulting Party and/or any person employed by the defaulting Party or acting on its behalf:

(i)         has committed any offence under the Anti-Corruption Laws in Hong Kong; or

(ii)        has abetted or attempted to commit such an offence.

26.    INDEMNITY

26.1  The Seller shall indemnify ROSY RAIN and the Indemnified Party against any and all Losses caused by acts of the Seller not authorised by this Agreement or by any willful misconduct or negligent act of the Seller.

27.    LIMITATION OF LIABILITY

27.1  Notwithstanding any provision to the contrary contained herein, the total aggregate liability of ROSY RAIN to the Seller arising out of or in connection with this Agreement in respect of all claims, loss, liabilities, indemnities, fines, penalties and similar charges, payments and damages of every kind and nature whatsoever, whether by way of indemnity or by reason of any breach of this Agreement or in tort, (including, without limitation, sole or concurrent, active or passive negligence) or breach of any duty or otherwise, shall not exceed in aggregate the total order value of the Products which is the cause of such claims.

28.       CONSEQUENTIAL LOSS

28.1     ROSY RAIN shall in no event be liable to the Seller, whether in contract, under statute, tort (including negligence or breach of statutory duty) or howsoever otherwise arising and whatever the cause thereof, for any loss of profit, loss of revenue, loss of production, loss of business opportunity, loss of capital, loss of goodwill, increased cost of working, loss of use, loss of contract or any indirect, remote, incidental, unforeseeable or consequential loss or damages or exemplary or punitive damages.

29.       GENERAL

29.1     ROSY RAIN may from time to time vary or amend this Agreement by giving reasonable notice to the Seller via Seller Center. If the Seller does not agree to the variations or amendments made by ROSY RAIN, the Seller has the right to terminate this Agreement by giving a fourteen (14) days’ prior notice to ROSY RAIN. In accordance with clause 17.2 of this Agreement, ROSY RAIN may terminate this Agreement if any amendment made to this Agreement is notified to the Seller and has not been accepted by the Seller within the prescribed timeline.

29.2     No waiver by ROSY RAIN of any breach of the Agreement by the Seller shall be considered as a waiver of any subsequent breach of the same or any other provision.

29.3     If any provision of this Agreement is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.

29.4     This Agreement (together with any documents referred to herein) embodies all the terms and conditions agreed upon between the Parties as to the subject matter of this Agreement and supersedes and cancels in all respects all previous agreements and undertakings, if any, between the Parties with respect to the subject matter hereof, whether such be written or oral.

29.5     A person who is not a party to this Agreement (including any employee, officer, agent, representative, or sub-agreement of either party) shall have no right under the local law and/or jurisdiction of the Parties, including but not limited to Hong Kong Contracts (Rights of Third Parties) Bill or Contracts (Rights of Third Parties) Act (Chapter 53B of Hong Kong) to enforce any terms of this Agreement which expressly or by implication confers a benefit on that person without the express prior Agreement in writing of the Parties.

29.6     The construction, validity and performance of this Agreement shall be governed by the laws of Hong Kong. Any dispute arising out of or in connection with this Agreement, including any question regarding its existence validity or termination, shall be submitted to the exclusive jurisdiction of the courts in Hong Kong.

29.7     ROSY RAIN shall be entitled to commence court legal proceedings for the purposes of protecting its confidential information or any exclusivity rights, as contained in the Agreement, by means of injunctive or other equitable relief.

 

29.8     Time whenever mentioned in this Agreement shall be of the essence.



Commissions & Fees

 
NameDescriptionValueActions
Cancellation Fee (Delay)Penalty fee charged for cancellation of an item.50.00 HKD 
Cancellation Fee (Failed pick up)Penalty fee charged for cancellation of an order.50.00 HKD 
Cancellation Fee (OOS)Penalty fee charged for cancellation of an item.50.00 HKD 
Commission RateCommission rate charged to the seller for the item price25% 
Warehouse & Delivery Fee first itemDelivery fee charged on the first item in the order15%