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These Terms and Conditions (also referred to as the “Agreement”) shall be supplemented by the Shopee Platform Terms and Conditions and other Shopee Policies (such as but not limited to the Shopee Privacy Policy) as may be applicable and which do not conflict therewith.

Terms and Conditions

1.       DEFINITIONS

1.1   "Advertisement” means any advertisement placed pursuant to an PACKAGE ORDER under this Agreement.

1.2     “Advertising Fee” has the meaning set forth in Section 3.1. 1.3     “Advertiser” means Customer or the entity identified in an PACKAGE ORDER for whom Customer is a reseller. 1.4    “Advertising Targets” means the subject brands, products, and services that an Advertiser promotes through Advertising Material, including websites, apps, games, tangible goods, and social network groups. 1.5     “Applicable Deductions” means the taxes and fees applicable to a Deposit. 1.6    “Landing Page” means the first web page to which a user is redirected after the user clicks on any Advertising Material.

1.7   “Media” means any medium (including the Platform) and advertising inventory that Shopee has access to. 1.8     “Platform” means the Shopee Platform.

1.9     “Terms of Use”         means the terms of use governing the Platform,  including additional guidelines required or updated by Shopee from time to time.

2.       PACKAGE ORDERS

2.1    PACKAGE ORDER.  Advertiser may purchase different PACKAGE ORDERS at the prices listed in the site. All PACKAGE ORDERs will be governed by these Terms and Conditions, and if there is any conflict between these Terms and Conditions and a PACKAGE ORDER, these Terms and Conditions will prevail, unless the PACKAGE ORDER explicitly provides that its terms will take precedence over specific sections of these Terms and Conditions.

2.2     No Cancellation.  Once Advertiser purchases a PACKAGE ORDER, Advertiser shall not be allowed to modify or cancel said PACKAGE ORDER or ask for a refund of the same.

3.       COMPENSATION AND PAYMENT TERMS

3.1     Advertising Fee and Invoice.

(a)    Following Shopee’s receipt of the executed PACKAGE ORDER, Shopee will issue Customer the billing statement reflecting the Advertising Fee, the applicable date for payment, and any applicable taxes.

(b)      Advertiser shall pay for the PACKAGE ORDERS in advance using the payment methods available on the site, which includes deduction from Advertiser’s Seller Balance. Should there be any failure of payment, the PACKAGE ORDER shall be automatically cancelled.

(c)      Except as otherwise set forth in a PACKAGE ORDER, all payments made by Customer to Shopee under this Agreement are VAT inclusive.  Each party will pay all taxes that it owes under this Agreement.  If applicable law requires Customer to withhold any taxes, Customer will withhold the required amount and provide Shopee with a Creditable Withholding Tax Certificate (BIR Form 2307) within five (5) days from the date of payment evidencing the withholding of tax payment. Shopee shall provide a BIR registered official receipt for all PACKAGE ORDER only.

4.       RESPONSIBILITIES OF CUSTOMER

4.1     Business Conduct.  Customer may not contractually bind Shopee or make any representations to its own advertisers on behalf of Shopee.  Customer will not engage in any unconscionable, false, deceptive, misleading, or fraudulent conduct, including by misrepresenting its own websites as the official website for any Media.  Customer will not advertise substances, services, products, or materials that violate applicable laws.

4.2    Relationship with Advertisers.  If the Advertisement specified in a PACKAGE ORDER is placed by Customer on behalf of an Advertiser, Customer may not make any commitment or incur any obligations on behalf of Shopee without Shopee’s prior written consent.

4.3     Compliance with Laws and Terms of Use.  Customer will ensure that all Landing Pages comply with all applicable laws in jurisdictions in which each Advertisement is placed and in which Customer and Advertiser are located or provide goods and services, the Terms of Use, and other existing criteria or specifications required by Shopee (including content limitations, technical specifications, privacy requirements, user experience requirements, and requirements regarding Shopee’s public image).

4.4     Landing Pages.  With respect to each Landing Page, Customer will ensure that: (a) the content of each Landing Page is substantially similar to the Landing Page previously submitted to Shopee; and (b) the link to each Landing Page remains static and unaffected by time of visit, IP address, geographic location, or other variables.

4.5    Prohibited Uses.  Customer will not, and will not allow any third party to: (a) use robots or other automated query tools, computer generated search requests, or fraudulent use of search engine optimization services to generate or conceal impressions, inquiries, clicks, or conversions that are fraudulent or invalid; or (b) use any automated means, form of scraping, or other data extraction methods to access, query, collect, or use Shopee advertising-related information from the Platform without Shopee’s prior written consent.

5.       RESPONSIBILITIES AND RIGHTS OF SHOPEE

5.1    Platform.  Shopee will operate and maintain the Platform.  No changes relating to the features or functionalities of a Platform will affect the validity and enforceability of this Agreement.

5.2    Right to Cancel, Reject, or Remove.  Advertisers’ failure to nominate on purchased slots within the appropriate time frame shall cause the forfeiture of the benefit of that PACKAGE ORDER inclusion and Advertiser shall not be entitled to any refund for the same. 

5.3    Changes to Terms of Use.  Shopee may, at Shopee’s discretion, update, amend, or modify the Terms of Use, including the eligibility requirements for Advertisers (e.g., natural persons, legal persons), prohibited categories of products or services that may be advertised, payment requirements, scope of credentials review, additional fees, and waivers regarding certain industries.  If Shopee updates, amends, or modifies the Terms of Use of a Platform, Shopee will make reasonable efforts to notify Customer of the updates, amendments, or modifications, including by publishing the modified Terms of Use on the Platform’s website, by email, or by instant message.  Customer will check the Platform periodically for such updates and notices.  Modified Terms of Use take effect on publication.  By continuing to execute PACKAGE ORDERs, Customer agrees to be bound by the updated, amended, or modified Terms of Use. 

6.       CONFIDENTIAL INFORMATION

6.1   “Confidential Information” means: (a) any proprietary information of a party to this Agreement disclosed by one party to the other that is in written, graphic, machine readable, or other tangible form and is marked “Confidential” or “Proprietary” or in some other manner to indicate its confidential nature; (b) the Shopee materials and all other non-public marketing or technical information, even if not marked as confidential; and (c) all information collected or developed by Shopee regarding its customers.  Confidential Information also includes oral disclosures if that information would reasonably be understood to be confidential from the context of disclosure.

6.2      Exceptions.  Confidential Information will not include any information that: (a) was publicly known and made generally available before the time of disclosure by the disclosing party; (b) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (c) is already in the lawful possession of the receiving party at the time of disclosure; (d) is obtained by the receiving party from a third party without a breach of that third party’s obligations of confidentiality; (e) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information; or (f) is disclosed by the receiving party pursuant to the disclosing party’s prior written approval.

6.3       Non-Use and Non-Disclosure.  Each party will: (a) treat as confidential all Confidential Information of the other party; (b) not disclose that Confidential Information to any third party, except on a “need to know” basis to third parties that have signed a non-disclosure agreement containing provisions substantially as protective as the terms of this Section and such party has obtained the written consent to that disclosure from the party that provided the Confidential Information; and (c) not use that Confidential Information except in connection with performing its obligations or exercising its rights under this Agreement.  Each party is permitted to disclose the other party’s Confidential Information if required by law so long as the other party is given prompt written notice of that requirement before disclosure and assistance in obtaining an order protecting that information from public disclosure.

7.        TERM AND TERMINATION

7.1     Termination for Convenience by Shopee.  Shopee may terminate any PACKAGE ORDER at any time without cause by providing Customer advance prior written notice. Shopee shall provide a refund in this case, unless the termination is due to a cause attributable to the Advertiser or Customer.

7.2    Effect of Termination.  If this Agreement is terminated due to Customer’s breach of any of its obligations to Shopee, all amounts paid by Customer to Shopee may be forfeited as liquidated damages without prejudice to Shopee’s recourse for other rights or remedies available under applicable laws.

7.3    Survival. The following provisions will survive the termination or expiration of this Agreement: Sections 1, 3, 6, 7.2, 7.3, 9, 10, 11, and any other provisions that, by their nature, are intended to survive. All liabilities that accrued before the termination or expiration will survive the termination or expiration of this Agreement.

8.       REPRESENTATIONS AND WARRANTIES

8.1   Mutual Representations and Warranties.  Each party represents and warrants that: (a) it is duly organized, validly existing, and in good standing in the jurisdiction it is formed; (b) its execution and delivery of this Agreement has been duly and validly authorized; (c) this Agreement constitutes a valid, binding, and enforceable obligation upon its execution; and (d) it will comply with all applicable laws in performing under this Agreement.

8.2     Representations and Warranties by Customer.  Customer represents and warrants that: (a)     the execution, delivery, and performance of this Agreement will not be in conflict with or constitute a default under the terms of any agreement, instrument, judgment, decree, or any order, statute, rule, or governmental regulation applicable to Customer;

(b)    all of the information provided by Customer to Shopee, including, if applicable, information provided on behalf of an Advertiser, is complete, true, accurate, and current, and each Advertiser that Customer represents (if applicable), has the right to conduct its business, including offering its products or services;

(c)    any documents or materials submitted by Customer are true and accurate; (d)   each Advertiser has the right or authorization to use, market, and promote the applicable Landing Pages and Advertising Targets, and the use, marketing, and promotion of such Landing Pages and Advertising Targets in accordance with this Agreement are compliant with all applicable laws; and (e)  no Landing Page or Advertising Target contains (i) any information that violates or encourages violation of any applicable law; (ii) fraudulent or deceptive information or incentives; (iii) virus, malware, spyware, Trojan, phishing, or other malicious code that could breach or circumvent any Platform security measure; (iv) information marketing or promoting fake or counterfeit goods or illegal businesses (including apps or software that contain hidden charges); (v) any material that infringes any rights of any third party; or (vi) material that may be harmful, abusive, pornographic or obscene, threatening, or defamatory. 9.      INDEMNIFICATION 9.1    Indemnification by Customer.  Customer will indemnify, defend, and hold harmless Shopee and its affiliates and their directors, officers, and employees from and against all claims, actions, losses, damages, liabilities, costs, and expenses, including attorneys’ fees and other legal expenses, arising directly or indirectly from or in connection with: (a) any breach by Customer of these Terms and Conditions/Agreement; (b) any failure of Customer to perform its obligations under this Agreement in compliance with all applicable laws; (c) any violation of any rights of any third party by an Advertisement or Advertising Target,; or (d) Customer’s fraud, negligence or willful misconduct. 9.2     Procedure.  Shopee will promptly notify Customer of any claim that is subject to Section 9.1, and will permit Customer to assume and control the defense of that claim.  Shopee will, however, have the right to employ separate counsel and participate in the defense of claims at the Customer’s sole cost.  Customer will have the sole authority to defend, compromise, settle, or otherwise dispose of a claim, but it will not agree to any disposition or settlement of a claim that admits liability or imposes duties of performance or payment on Shopee without Shopee’s prior written consent.  If the parties agree to settle a claim, Customer will not publicize the settlement without first obtaining Shopee’s written permission.

10.    LIMITATION OF LIABILITY

10.1  Disclaimer of Warranties.  ALL PERFORMANCE BY SHOPEE AND ITS AFFILIATES AND ANY SHOPEE MATERIALS ARE PROVIDED “AS IS.” SHOPEE MAKES NO GUARANTEES REGARDING THE SUCCESS OF A CAMPAIGN OR AD, NUMBER OF VISITS, SALES, OR CONVERSION RATES.  CUSTOMER ACKNOWLEDGES AND AGREES THAT SHOPEE CANNOT ENSURE THAT ANY MATERIAL SUBMITTED BY OR ON BEHALF OF CUSTOMER OR ADVERTISER WILL BE PROTECTED FROM THEFT OR MISUSE, AND SHOPEE WILL HAVE NO LIABILITY ARISING FROM A FAILURE OF ANY SECURITY TECHNOLOGY OR PROCEDURE.

10.2  Disclaimer of Consequential Damages.  SHOPEE WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO CUSTOMER FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE TRANSACTION CONTEMPLATED UNDER THIS AGREEMENT, INCLUDING LOST PROFITS OR LOSS OF BUSINESS. 10.3   Cap on Liability.  UNDER NO CIRCUMSTANCES WILL SHOPEE’S OR ANY SHOPEE AFFILIATE’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT RECEIVED FROM CUSTOMER BY SHOPEE UNDER THIS AGREEMENT FOR THE 12-MONTH PERIOD PRECEDING THAT CLAIM.

10.4   Independent Allocations of Risk.  EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES.  THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES.  EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THESE PROVISIONS FAIL THEIR ESSENTIAL PURPOSE.

11.    MISCELLANEOUS

11.1  Subcontractors.  Shopee may exercise its rights under this Agreement via its affiliates and subcontractors.  Shopee will be responsible for the compliance of those affiliates and subcontractors with the terms of this Agreement. 11.2   Independent Contractor.  This Agreement will not be construed as creating a partnership, joint venture, or agency relationship or as granting a franchise.  The parties are independent contractors in the performance of this Agreement.  Neither party is authorized to bind the other party to any liability or obligation or to represent that it has any authority to do so.

11.3     Press Release.  Except as expressly set forth in this Agreement or as required by the laws of any jurisdiction, neither party will make any public announcement or press release regarding the cooperation contemplated by this Agreement without the prior consent of the other party.  Any party required by law to make a public announcement regarding any matter related to the cooperation contemplated by this Agreement will solicit from and consider in good faith the other party’s feedback on the content of that public announcement.

11.4     Force Majeure.  Neither party will be liable to the other party for any failure or delay in fulfilling an obligation (other than the financial obligations) under this Agreement if that failure or delay is attributable to circumstances beyond its control, including any fire, power failure, labor dispute, war, civil dispute, or government action (including any new law or regulation) or inaction (“Force Majeure”).  The deadline for fulfilling the obligation in question will be extended for a period equal to that of the continuance of the Force Majeure event.

11.5     Governing Law and Resolution of Disputes. This Agreement shall be governed by and construed in accordance with the laws of the Philippines. In the event of any dispute, controversy, claim or difference of any kind whatsoever arising between the parties in connection with this Agreement, including the breach, termination or validity of this Agreement, or in connection with the determination of any matters which are subject to objective determination pursuant to this Agreement (“Dispute”), the parties shall attempt, for a period of thirty (30) days after the receipt by one (1) party of a notice from the other party of the existence of a Dispute (the “Dispute Notice”), to settle such Dispute in the first instance by mutual discussions between the senior management of each of the parties. If the Dispute cannot be settled by mutual discussions within the thirty (30) day period, it shall be referred to and finally resolved by arbitration in accordance with Republic Act No. 9285, otherwise known as the Alternative Dispute Resolution Act of 2004. There will be three (3) arbitrators and shall be conducted as follows:

(a)    Each party shall appoint one (1) arbitrator. The arbitrators thus appointed shall select a third arbitrator who shall act as the presiding arbitrator of the tribunal or panel;

(b)    The arbitration shall be conducted in the English language. The place of arbitration shall be Makati City, Philippines; (c)    The parties agree that this arbitration clause is an explicit waiver of immunity against validity and enforcement of the award or any judgment thereon made pursuant thereto and that such award or judgment thereon, if unsatisfied, shall be enforceable in any court having jurisdiction in accordance with its laws against any party participating in the arbitration; (d)    The parties agree that the award of the arbitration tribunal shall be the sole remedy for all claims and counterclaims concerning the matter in dispute presented to the arbitration tribunal. The costs, expenses, fees and charges of the arbitration proceedings shall be equally shared by the parties.

11.6       Notices.  All notices under the terms of this Agreement will be deemed given as of the day they are received either by overnight courier, email, postage prepaid certified or registered mail, and addressed either to Shopee or Customer at their respective addresses specified in the Cover Page.

11.7       Assignment.  Customer may not voluntarily, involuntarily, or by operation of law assign any of its rights or delegate any of its obligations under this Agreement (in whole or in part), including by direct or indirect change of control, merger (whether or not Customer is the surviving entity), or operation of law, without Shopee’s prior written consent, which Shopee may withhold in its sole and absolute discretion.   Any direct or indirect change of control of equity ownership or management or control of Customer, whether or not Customer survives as an entity, will be deemed an assignment and delegation of this Agreement that requires Shopee’s prior written consent.  An assignment by Customer will not relieve Customer of its obligations under this Agreement and any PACKAGE ORDER unless Shopee expressly states otherwise in its written consent.  Shopee will not release Customer of its liability under this Agreement and any PACKAGE ORDER unless Shopee expressly states otherwise in its written consent. Shopee may voluntarily, involuntarily, or by operation of law assign any of its rights or delegate any of its obligations under this Agreement or any PACKAGE ORDER (in whole or in part) without Customer’s consent.  Any purported assignment or delegation in violation of this Section 11.7 will be null and void.  Subject to this Section 11.7, this Agreement will bind and inure to the benefit of each party’s respective permitted successors and permitted assigns.

11.8       Waiver.  Any waiver of the provisions of this Agreement or of a party’s rights or remedies under this Agreement must be in writing provided in accordance with Section 11.6 to be effective.  Failure, neglect, or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time will not be construed as a waiver of the party’s rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice the party’s right to take subsequent action.  Exercise or enforcement by either party of any right or remedy under this Agreement will not preclude the enforcement by the party of any other right or remedy under this Agreement or that the party is entitled by law to enforce.

11.9       Severability.  If any term, condition, or provision in this Agreement is found to be invalid, unlawful, or unenforceable to any extent, the parties will endeavor in good faith to agree to amendments that will preserve, as far as possible, the intentions expressed in this Agreement.  If the parties fail to agree on an amendment, the invalid term, condition, or provision will be severed from the remaining terms, conditions, and provisions of this Agreement, which will continue to be valid and enforceable to the fullest extent permitted by law, and the tribunal will preserve, as far as possible, the original intention of the parties with respect to the severed term, condition, or provision. 11.10     Remedies Cumulative.  No single or partial exercise of any right or remedy will preclude any other or further exercise of any other right or remedy.  Rights and remedies provided in this Agreement are cumulative and not exclusive of any right or remedy provided at law or in equity.

11.11     Confidentiality of Agreement.  Customer will not disclose any terms of this Agreement to any third party without Shopee’s prior written consent, except as required by applicable law.

11.12     Counterparts.  This Agreement may be executed in counterparts, each of which will be deemed to be an original and together will constitute one and the same agreement.

11.13    Language.  If this Agreement is executed in more than one language, then only the English version is binding on the parties. 11.14    Headings.  Headings are used in this Agreement for reference only and will not be considered when interpreting this Agreement.

11.15   Integration.  These Terms and Conditions, and all PACKAGE ORDERs, constitute the entire agreement of the parties with respect to the subject matter of this Agreement and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to that subject matter.  No terms, provisions, or conditions of any purchase order, acknowledgement, or other business form that either party may use in connection with the transactions contemplated by this Agreement will have any effect on the rights, duties, or obligations of the parties under, or otherwise modify, this Agreement, regardless of any failure of a receiving party to object to these terms, provisions, or conditions.  These terms and conditions may be amended by Shopee at any time.

Version. July 14, 2023