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Seller acknowledges and agrees that (i) the Fulfilment Agreement is intended to cover the fulfilment of Products within Philippines only, and (ii) the Fulfilment Agreement shall not be applicable in respect of any Products to be sold by Seller in its capacity as a cross-border seller under the Shopee platform (if applicable).

These T&Cs supplement the Shopee Terms of Service (https://shopee.ph/docs/3586) and other Shopee Policies (https://shopee.ph/legaldoc/policies). Any terms that are used in these T&Cs that are not defined herein shall have the meaning given to them in the Shopee Terms of Service and/or applicable Shopee Policies.

1.       INTERPRETATION

1.1    In these T&Cs the following words will have the meanings assigned to them in this clause, except where inconsistent with the context:

        “Aging Day Calculation” means the number of days between Product inbound date (i.e., stock in the front end > 0) and calculation date (i.e., the first day of each month);

“Business Day” means a standard business day in Philippines;

“Buyer” means the purchaser of any Product on the Platform;

“Buyer Order” means an order placed by a Buyer through the Platform;

“Commencement Date” means the date on which the Seller accepts and agrees to these T&Cs by ticking the box to accept these T&Cs and clicking “Submit” at the bottom of the Seller registration page during the registration process;

“Fulfilment Service Fees” means the fees payable by Seller to SCommerce for the fulfilment services provided by SCommerce under this Agreement, as set out in the Seller Education Hub or otherwise notified by SCommerce to the Seller, and which are comprised of the following:

(i)          Handling Fees, to be charged on a per-unit basis depending on the weight and dimensions of each unit;

(ii)         Storage Fees, to be charged on a per-cubic metre monthly usage basis;

(iii)        Value Added Services Fees, to be charged on a per-unit basis depending on the amount of Value Added Services requested by Seller; and

(iv)        such other fees as may be charged by SCommerce from time to time.

“Intellectual Property Rights” means all copyright, patents, utility innovations, trade marks and service marks, geographical indications, domain names, layout design rights, registered designs, design rights, database rights, trade or business names, rights protecting trade secrets and confidential information, rights protecting goodwill and reputation, and all other similar or corresponding proprietary rights and all applications for the same, whether presently existing or created in the future, anywhere in the world, whether registered or not, and all benefits, privileges, rights to sue, recover damages and obtain relief or other remedies for any past, current or future infringement, misappropriation or violation of any of the foregoing rights;

“Losses” means all losses, damages, settlement sums, costs (including legal costs), charges, expenses, actions, penalties, proceedings, claims (including any claims by third parties), demands and liabilities, whether foreseeable or not;

“Parties” means the parties to the Fulfilment Agreement and their respective successors and permitted assigns, and Party means any one of them;

“Platform” means the electronic platform “Shopee” operated by Shopee Limited or its affiliates;

“Products” means the products that Seller delivers to the Warehouse for fulfilment by SCommerce under the Fulfilment Agreement;

“Replacement Value” of a Product means the amount that the Seller would have received for the sale of a Product had it been sold to a Buyer on the Platform, based on the price of the Product offered by the Seller on the Platform (after adjustment for any discounts and/or rebates),within the preceding 90 calendar days (as determined from Platform’s records);

“Sanctions” means the economic sanctions laws, regulations, embargoes or restrictive measures administered, enacted or enforced by the Sanctions Authority (or any of them);

“Sanctions Authorities” means:

(a)       the United States government;

(b)       the United Nations;

(c)       the European Union;

(d)       the United Kingdom;

(e)       the Commonwealth of Australia; or

(f)      the respective governmental institutions and agencies of any of the foregoing or any other countries, including, without limitation, the Office of Foreign Assets Control of the US Department of Treasury (“OFAC”), the United States Department of State, and Her Majesty’s Treasury (“HMT”);

“Sanctions List” means the “Specially Designated Nationals and Blocked Persons” list maintained by OFAC, the “Consolidated List of Financial Sanctions Targets” and the “Investment Ban List” maintained by HMT, or such other page as may replace it), or any similar list maintained by, or public announcement of Sanctions designation made by, any of the Sanctions Authorities;

“Shopee Seller Centre” means the webpage for Seller’s use in connection with the sale of Products on the Platform;

“Seller Education Hub” means the webpage made available to Seller to provide information, courses, webinars, and articles in connection with the sale of Products on the Platform;

“Warehouse” means the delivery point designated by SCommerce for delivery of the Products from the Seller.

1.2          In these T&Cs, unless the context otherwise requires:

(a)    a reference to any document or clauses in such document (including these T&Cs and the Platform’s Terms of Service) is to that document or clauses in such document as varied, novated, ratified, renumbered or replaced from time to time;

(b)     words in the singular include the plural and vice versa and words in one gender include any other gender;

(c)     a reference to any Party includes its successors in title and permitted assigns, a reference to a “person” includes any individual firm, body corporate, association or partnership, government or state (whether or not having a separate legal personality), and a reference to a clause is to a clause of these T&Cs;

(d)     the headings of clauses are for convenience only and will not affect the interpretation of these T&Cs;

(e)    any undertaking under these T&Cs not to do any act or thing will be deemed to include an undertaking not to permit or suffer the doing of that act or things; and

(f)      the word “includes” in any form is not a word of limitation.

2.       TERM AND DURATION

2.1     The Fulfilment Agreement commences on the Commencement Date and will continue for a period of twelve (12) months, and shall be renewed for continuous term periods of twelve (12) months unless either Party gives written notice to the other Party, at least thirty (30) days prior to the expiration of such term that the Fulfilment Agreement shall not be renewed.

3.       DELIVERY OF PRODUCTS

3.1    Products shall be delivered by Seller (at Seller’s own cost) to SCommerce at the Warehouse for fulfilment by SCommerce. 

3.2      Prior to the delivery of any Products, Seller and SCommerce shall agree upon the type and quantity of Products to be fulfilled, the details of which shall be recorded in a delivery note to be attached to each delivery of Products (“Delivery Note”).

3.3     Before accepting delivery of Products at the Warehouse, SCommerce shall verify that the delivered Products conform with the information in the Delivery Note. If there is any discrepancy between the Products delivered and the information in the Delivery Note, SCommerce may, at its sole discretion, (i) refuse delivery of the Products (or part thereof), or (ii) accept any additional Products that are not set out in the Delivery Note, subject to any applicable Fulfilment Service Fees for such additional Products (as may be set out in the out in the Seller Education Hub or otherwise notified by SCommerce to the Seller).

3.4       Seller shall not deliver any Product to SCommerce that is unlabelled, insufficiently labelled, defective, damaged or unfit for a particular purpose (“Unsuitable Products”).  SCommerce may return Unsuitable Products to Seller (at Seller’s cost).

3.5     If Products are shipped to SCommerce from countries outside of Philippines, Seller shall be the importer-of-record and be responsible for all taxes, customs duties and fees levied on the importation of the Products.

4.        WAREHOUSING AND TITLE TO PRODUCTS

4.1       Following confirmation of receipt of delivery, SCommerce shall provide, or procure the provision of, warehousing and storage services for the Products. 

4.2       All Products shall remain the property of Seller, and title to and ownership of the Products shall not pass to SCommerce at any time.

4.3    SCommerce shall not:

(a)       change, alter or otherwise modify any Products in any way; or

(b)       mortgage, promise, pledge or otherwise encumber any Product to secure any debt whatsoever; or

(c)       move Products from its Warehouse to another storage facility without Seller’s knowledge and consent.

4.4     Products stored in the Warehouse shall be reasonably identified as property of Seller.  SCommerce shall be responsible for all stock discrepancies occurring after receipt, verification and inventory of Products at the Warehouse.  

4.5     In the event a Product is lost or damaged whilst in the possession or control of SCommerce, SCommerce shall pay the Seller the Replacement Value.  The Seller agrees that the Replacement Value of a Product is the total liability of, and the Seller’s only remedy against, SCommerce, its agents, representatives and contractors under the Fulfilment Agreement in relation to loss of, or damage to, such Product. 

4.6     SCommerce may, from time to time and subject to agreement with Seller, provide Seller with additional value added services in respect of any Products that are in the possession or control of SCommerce (“Value Added Services”), including but not limited to re-labelling and/or re-packaging services. The Fulfilment Service Fees applicable for such Value Added Services shall be set out in the Seller Education Hub (or separately notified by SCommerce), and may be amended by SCommerce from time to time at its sole discretion without prior notice to Seller.

5.         SALE OF PRODUCTS

5.1     Seller shall offer, and use reasonable efforts to sell, the Products on the Platform.

5.2     When a Product is sold to a Buyer, SCommerce will:

(a)       locate the Product from the Warehouse; and

(b)       arrange for the shipment of the Product to the shipping address provided by the Buyer.

For the avoidance of doubt, the actual shipment of the Product does not fall within the scope of the fulfilment services provided under this Fulfilment Agreement, and shall be covered by the applicable agreement and/or Shopee Policy governing the shipment and/or delivery of such Product.

5.3     Seller shall be responsible for the original packaging of the Products before delivery to Warehouse and shall bear all costs in relation to the packaging process.

5.4      SCommerce may, at its sole discretion, carry out further packaging or modify the packaging of Products in order to secure the integrity of the Products for delivery, and may ship the Products together with other products purchased by the Buyer from other merchants.

5.5     Seller shall issue a tax invoice to the Buyer for the sale of any Product.

6.       PLATFORM & SERVICES

6.1     SCommerce reserves the right to delegate or sub-contract the performance of any of its obligations under the Fulfilment Agreement to any third party service providers or its affiliates at any time on such terms as SCommerce deems appropriate, without prior notice to Seller.

6.2     Seller acknowledges and agrees that SCommerce and its affiliates may, from time to time and with or without notice to Seller, modify, upgrade, suspend or discontinue the provision of or remove, whether in whole or in part, the Platform or any information, functionalities, services or products provided therein, and shall not be liable to Seller in any way if any such action causes a suspension or removal of any service to Seller or prevents Seller from accessing the Platform or associated information, functionalities, services or products.

6.3     Seller agrees and confirms that the Products shall at all times be offered for sale, sold, marketed and/or distributed on the Platform as Seller’s products and Seller shall take all necessary steps and/or precautions to ensure that such Products are not mistaken or misrepresented as being SCommerce’s products.

6.4     SCommerce and its affiliates reserve the right to market or advertise the Products of the Seller, either generally or specifically, on the Platform or such other medium or channel of marketing or advertising of SCommerce’s choice. SCommerce and its affiliates may attach advertisements, banners and/or such other materials (collectively “Advertisements”) to the Platform for the purpose of advertising Seller’s and/or any third party’s products and/or services. With respect to any Content submitted or contributed by Seller to the Platform, Seller hereby grants SCommerce and its successors a perpetual, irrevocable, worldwide, non-exclusive, royalty-free, sub-licensable and transferable license to use, copy, distribute, republish, transmit, modify, adapt, create derivative works of, publicly display, and publicly perform such Content in any media formats and through any media channels,  and Seller agrees to waive any moral rights (and any similar rights in any part of the world) in that respect. Seller understands that Seller’s contribution may be transmitted over various networks and changed to conform and adapt to technical requirements.

7.       BUYER CONTRACT AND PAYMENT TO SELLER

7.1     A Buyer Order is deemed to be accepted by Seller upon Buyer’s completion of the checkout process on the Platform, and the contract for sale is directly between Buyer and Seller, and SCommerce is not a party to that or to any other contract between Buyer and Seller and accepts no obligations in connection with any such contract.

7.2     All agreements entered into between Seller and Buyer, including those entered into pursuant to a Buyer Order, shall be entered into in accordance with Shopee Policies.

7.3     Except as otherwise expressly set out and agreed upon by the Parties, such as in the Shopee Seller Centre, SCommerce shall not under any circumstances be responsible for any after-sales service, payment invoicing or collection, Buyer services and enquiries, sale or technical support, maintenance services and/or other obligations or services relating to or in respect of Products sold or offered for sale by Seller on the Platform.

7.4     Notwithstanding Section 7.3 and pursuant to the Shopee Policies, SCommerce, or its authorized agent or affiliate, is hereby authorized to collect payments from the Buyer on behalf of Seller.

8.       BUYER RETURNS AND/OR REFUNDS

8.1   SCommerce shall receive and process refunds for and/or returns of any Products from Buyers (“Returned Products”).  Returned Products shall, at the Seller’s direction, be:

(a)         placed back into the Seller’s inventory of Products at the Warehouse;

(b)         returned to Seller; or

(c)         disposed of,

  and Seller shall reimburse SCommerce for all actual expenses SCommerce incurs in connection with the storage of the Returned Products until the Seller notifies SCommerce of its decision on the storage, return or disposal of the Returned Products.

For the avoidance of doubt, where Seller elects for the Returned Products to be returned to Seller or disposed of, such return or disposal shall be charged pursuant to the Fulfilment Service Fees as set out in the Seller Education Hub or otherwise notified by SCommerce to the Seller.

9.   DISPOSAL OF PRODUCTS AND RETURN OF PRODUCTS TO SELLER

9.1      The Seller may, at any time, request in writing that Products be returned or that SCommerce dispose of Products. Such         requests shall be subject to confirmation by SCommerce and shall be at Seller’s cost

9.2     SCommerce may elect to return Products to the Seller for any reason, including (i) upon termination of the Fulfilment Agreement, or (ii) if the Product(s) have not been sold within such timelines as may be determined by SCommerce at its sole discretion. Such returns shall be at Seller’s cost if SCommerce determines at its sole discretion that the return is necessary due to reasons outside of SCommerce’s control (including, but not limited to, the relevant Products having expired or being near-expiry).

9.3     Any return of Products under Clauses 9.1 or 9.2 will be effected by the Seller collecting the relevant Products from the Warehouse (“Return to Seller Exercise”) within ten (10) business days from SCommerce’s confirmation that the Seller’s request for return of Products is accepted pursuant to Clause 9.1, or within ten (10) business days from SCommerce’s notification to Seller pursuant to Clause 9.2. If the Seller fails to collect the Products within the applicable period, then the Products will be deemed abandoned and SCommerce may elect to dispose of the Products without liability to SCommerce (and at the cost and expense of Seller).

9.4     Seller may only raise a dispute in connection with a Return to Seller Exercise in the event that the relevant Product(s) are missing and/or not in a sellable condition due to any fault of SCommerce.

(a)      Such dispute needs to be raised to SCommerce within seven (7) Business Days of Seller collecting the Product(s).

(b)      Seller shall provide any and all necessary pictorial evidence (and any other evidence as may be requested by SCommerce) in connection with such dispute.

(c)      Subject to the procedures in Clause 9.5 and Seller’s compliance with this Clause 9.4, SCommerce may (but shall not be obliged to) pay Seller a sum. equal to the Replacement Value of the Product(s) if SCommerce is satisfied that the relevant Product(s) are missing and/or not in a sellable condition (“Reconciliation Amount”), provided always that the aggregate Reconciliation Amounts for any Return to Seller Exercise shall not exceed 0.5% of the net merchandise value of the Products sold by Seller on the Platform (and which have been fulfilled by SCommerce under this Fulfilment Agreement) in the three (3) months prior to the date that the dispute was raised by Seller. For the avoidance of doubt, Seller shall continue to retain possession of the relevant Product(s) after the payment of any Reconciliation Amount. Seller acknowledges that the Reconciliation Amount (if any) shall be Seller’s sole and exclusive remedy in connection with any Return to Seller Exercise, and releases SCommerce from any and all Losses incurred by Seller in connection thereto.

 9.5    SCommerce shall provide a written report to Seller in the event that there are any Reconciliation Amounts arising from a Return to Seller Exercise (“Reconciliation Report”) specifying:

(a)           the number and type of Products affected;

(b)           the Replacement Value of the Product(s);

(c)           the total Reconciliation Amounts; and/or

(d)           any other information as may be determined by SCommerce from time to time.

9.6      Within fourteen (14) days of receiving each Reconciliation Report, to the extent that Seller is registered for Value-Added Tax (“VAT”) based on the prevailing tax laws, Seller must provide SCommerce with a valid tax invoice (“Reconciliation Invoice”) in accordance with such Reconciliation Report detailing the Reconciliation Amounts, goods / services supplied, and the VAT component.

9.7     Reconciliation Invoices shall be payable by SCommerce to Seller within thirty (30) Business Days from the date it receives a valid tax invoice. SCommerce is entitled to set off any amount Seller owes SCommerce and/or its affiliates under these T&Cs against any amount that SCommerce owes Seller under it (including any Reconciliation Amount).

9.8     SCommerce may dispose of any Product (and the Seller will be deemed to have consented to such action): (i) immediately if SCommerce determines in its sole discretion that the Product creates a safety, health, or liability risk to SCommerce, its personnel, or any third party; or (ii) within ten (10) business days from SCommerce’s notification to Seller of its intention to dispose any Product where the Product is damaged and/or expired or near expiry; or (iii) if  Seller fails to direct SCommerce to return or dispose of any Product within thirty (30) days after Seller notifies SCommerce that a Product has been recalled pursuant to Clause 9.9 or after SCommerce notifies Seller that a Product has been returned by a Buyer pursuant to Clause 8.1.

9.9     The Seller will promptly notify SCommerce of any recalls or potential recalls, or safety alerts of any of its Products and cooperate and assist SCommerce in connection with any recalls or safety alerts, including by initiating the procedures for returning items to the Seller under SCommerce’s standard processes. The Seller will be responsible for all costs and expenses incurred in connection with any recall or potential recall or safety alerts of any of the Seller’s Products (including paying the applicable fees for the return, storage, repair, and/or liquidation of the Product, as set out in the Seller Education Hub or otherwise notified by SCommerce to Seller).

9.10     If the inventory storage duration of any of Seller’s Products is longer than ninety (90) days as computed by SCommerce in accordance with the Aging Day Calculation, SCommerce shall notify Seller. Within twenty-one (21) days after such notification, Seller shall remove (at Seller’s cost) such Products from the designated Warehouse as notified by SCommerce to Seller, failing which SCommerce shall have the right to dispose the Products (at Seller’s cost) without Seller’s approval, in such manner as SCommerce deems fit, and Seller shall be deemed to have forfeited all rights and claims to the Products. Seller further agrees that SCommerce shall not be liable for any Losses suffered by Seller due to such disposal.

10.     FULFILMENT SERVICE FEES

10.1     SCommerce shall issue an invoice for the Fulfilment Services Fees to the Seller on a monthly basis, in accordance with applicable law and according to the rates and processes indicated in the Seller Education Hub or otherwise notified by SCommerce to Seller. The Fulfilment Service Fees shall be paid out of the proceeds of the sales of the Products subject to the Fulfilment Agreement. In this regard, Seller acknowledges that the proceeds it receives from the sales of the Products may be net of the Fulfilment Service Fees.

10.2   If any amount due to SCommerce remains unpaid after the due date listed in the invoice, SCommerce shall be entitled, without limiting any other rights it may have, to:

(a)      charge interest on the outstanding amount at the rate of one percent (1%) per month from the due date until such outstanding amount is paid in full; and/or

(b)      suspend, withhold or discontinue the Services (including, for the avoidance of doubt, the right to retain possession of any Products in the Warehouse and to reject any instructions for the shipment of such Products from the Warehouse) until the full payment of the outstanding amount and the interest thereon are received by SCommerce.; and/or

(c)      liquidate, sell and/or otherwise dispose of such Products in SCommerce’s possession as SCommerce may deem necessary at its sole discretion, for the purpose of setting off the proceeds from such disposal against the outstanding amount and the interest thereon (if applicable) after the expiry of three (3) months from the date the applicable outstanding amount is due.

10.3     The Seller acknowledges and agrees that:

(a)      in connection with any exercise by SCommerce of its right under clause 10.2(b), the Seller hereby irrevocably appoints SCommerce as the Seller’s agent and attorney-in-fact, to act for and on the Seller’s behalf to liquidate, sell and/or dispose of the Products (and to do all such acts or things as may be necessary in connection therewith);

(b)       pursuant to Clause 10.2(b), SCommerce may liquidate, sell and/or dispose the relevant Products in such manner or method, and in accordance with such timeline, as it may determine at its sole discretion;

(c)      upon the exercise of the right under Clause 10.2(b), SCommerce shall cease to have any obligations whatsoever (including to provide any services) in respect of any Products which are the subject of such exercise; and

(d)     the Seller shall be responsible for any and all costs and expenses incurred in connection with the exercise of SCommerce’s rights under Clause 10.2, and the Seller hereby indemnifies and holds harmless SCommerce from and against any and all Losses which may be incurred by SCommerce in connection with such exercise.  

11.     BUYER INFORMATION AND PERSONAL DATA

11.1     SCommerce and its affiliates shall have sole ownership and control of all sales and other data obtained by or on behalf of SCommerce and its affiliates from Buyers in connection with the Products or the Platform (“Buyer Information”). For the purposes of this Agreement, all Buyer Information shall be considered Confidential Information of SCommerce.

11.2      Seller shall not disclose any Buyer Information to any third party without the prior written consent of SCommerce.

11.3   Seller shall immediately destroy any Buyer Information that the Seller has collected upon the termination of this Fulfilment Agreement.

11.4    For the avoidance of doubt, Seller represents, warrants and undertakes that it shall collect, disclose, use and process personal data only for the purpose of fulfilling its obligations pursuant to this Fulfilment Agreement. Seller shall not transfer any personal data without the prior written consent of SCommerce. If such consent is given, Seller shall provide an adequate level of protection to any personal data transferred in accordance with applicable data protection legislation, relevant Shopee Policies and all reasonable instructions from SCommerce, at Seller’s own cost and expense. Seller shall be liable for its, its sub-contractors’ or any service provider personnel’s collection, disclosure, use, processing, or loss of personal data and undertakes to indemnify SCommerce and keep SCommerce indemnified from and against any and all Losses for any breach of its obligation under this Clause 11 or its fault or negligence in performing these obligations. All costs and expenses incurred by Seller, its sub-contractors or any service provider personnel to enable compliance with the requirements of this Clause 11 shall be borne by the Seller.

12.     TAXES

12.1    The payments due under this Fulfilment Agreement, from Seller to SCommerce, are exclusive of sales, service, use, consumption, value-added, goods-and-services, business, duties and any similar Taxes (collectively, "Taxes"). Seller shall be responsible for all Taxes and other charges arising out of, or associated with, the sale of the Products and undertakes to pay all such Taxes in a timely manner.  In the event that the Seller does not pay Taxes, and such Taxes and (if applicable) any associated penalties are required to be paid by SCommerce, SCommerce shall be entitled to recover such amounts paid from the Seller.

12.2     Seller shall withhold taxes on the Fulfilment Service Fees as required by Philippine laws, including the National Internal Revenue Code of 1997 (Republic Act No. 8424), as amended. Seller shall furnish SCommerce with the Certificate of Tax Withheld at Source (BIR Form No. 2307) within five (5) calendar days from receipt of payment. Any Certificate provided beyond the calendar year will no longer be accepted by SCommerce and will not be valid for any claims or reimbursement.

13.     INSURANCE

13.1    Seller shall, at its own cost and expense, procure and maintain comprehensive insurance in relation to the sale of the Products including, but not limited to, product liability insurance.

13.2    SCommerce shall, at its own cost and expense, procure and maintain industrial all risk insurance, public liability insurance and fidelity guarantee insurance in relation to the storage of the Products at the Warehouse.

14.          TERMINATION

14.1      Either Party (the “Terminating Party”) may terminate the Fulfilment Agreement:

(a)    without cause with sixty (60) days’ written notice; and

(b)    immediately with written notice to the other Party (“Breaching Party”) if:

(i)      the Breaching Party commits a fundamental breach of any of its obligations under the Fulfilment Agreement, and such breach is not remedied (if capable of remedy) within seven (7) days of notice in writing from the Terminating Party requiring that such breach be remedied;

(ii)    the Breaching Party is in breach of any of its obligations under the Fulfilment Agreement, which breach is not a fundamental breach and such breach is capable of being remedied and has not been remedied within thirty (30) days of notice in writing from the Terminating Party requiring that such breach be remedied;

(iii)   SCommerce reasonably believes for any reason that the Seller is no longer able to perform its obligations under the Fulfilment Agreement; or

(iv)   the Breaching Party ceases or threatens to cease carrying on business, becomes insolvent or goes into administration, receivership or liquidation or enters into any arrangement or composition with its creditors or any action is taken for the appointment of an administrator or official manager or receiver of the assets of the Breaching Party.

14.2   Termination of the Fulfilment Agreement is without prejudice to any accrued rights of either Party as at the date of termination.

14.3   Upon the termination of the Fulfilment Agreement:

(a)    SCommerce shall:

(i)      fulfil all purchases of Products made by Buyers as at the date of termination;

(ii)     provide to Seller, within sixty (60) calendar days of termination of the Fulfilment Agreement, an invoice for the Fulfilment Service Fees for the period up to the date of termination (the “Final Invoice”);

(iii)   continue to maintain, store and safeguard all Products in the Warehouse until the date such Products are collected by Seller (at Seller’s own cost) and in any event no more than thirty (30) days after termination of the Fulfilment Agreement. SCommerce may charge Seller a reasonable fee for storing the Products after termination of the Fulfilment Agreement; and

(iv)     otherwise be discharged from any further obligations under the Fulfilment Agreement; and

(b)    Seller shall pay the Final Invoice within fifteen (15) days from the date of invoice. 

(c)    A Final Reconciliation Report will be provided to the Seller upon the Seller’s written request in the event that such written request is made to SCommerce within two (2) months from the effective date of termination of this Fulfilment Agreement (“Reconciliation Period”). For the avoidance of doubt, the Seller acknowledges and agrees that: (i) all Final Reconciliation Reports shall only contain information for the duration of one (1) year prior to this Fulfilment Agreement’s effective termination date; and (ii) Seller waives all rights to request for a Final Reconciliation Report upon the expiry of the Reconciliation Period.

For purposes of this Agreement, “Final Reconciliation Report” shall refer to any of the following documents:

1.      Stock reconciliation – covering inbound Products versus outbound Products;

2.      Claims reconciliation - covering Products missing in the Warehouse, damaged Products and expired Products;

3.      Logistics claims reconciliation – covering (i) Products stored in third-party logistics providers’ hubs for outgoing Buyer Orders and (ii) lost Products;

4.      Inbound reconciliation – covering discrepancies between SCommerce’s records and Seller’s records with respect to details of inbound Products;

5.     Return to Seller reconciliation – covering discrepancies between SCommerce’s records and Seller’s records with respect to Products returned to Seller;

6.     Payments reconciliation – covering payments in relation to Buyer Orders;

7.     Overall reconciliation of Seller– total reconciliation report covering items (1) to (6) above.

Once the Final Reconciliation Report has been provided by SCommerce to Seller, Seller has fifteen (15) calendar days from receipt to dispute the Report; otherwise, the Report will be considered final and binding on the Seller and Seller waives any and all rights to contest or dispute the Report, and releases SCommerce from any Losses arising out of or related to the Report.

15.           LIABILITY

15.1      In no event shall either Party be liable for indirect, incidental, special, punitive or consequential damages, including loss of use, loss of profits or interruption of business, however caused or on any theory of liability.

15.2      SCommerce’s liability to the Seller for any and all Losses arising out of or in connection with the Fulfilment Agreement, shall in no event exceed the Fulfilment Service Fees for the twelve (12) months immediately preceding the occurrence of the event giving rise to Seller’s claim for Losses.

16.     INDEMNITY

16.1      The Seller indemnifies and releases SCommerce from any and all Losses arising out of:

(a)   any breach of any warranty or obligation under the Fulfilment Agreement;

(b)   any willful or negligent act or omission of the Seller or any of its officers, employees or, agents (“Seller Parties”) in relation to the performance of its obligations under the Fulfilment Agreement;

(c)   any breach of any third party’s rights by any Seller Parties, including in respect of any claim that the Product infringes, or their importation infringes the Intellectual Property Rights of any other person anywhere in the world; and

(d)    any product liability with respect to Buyers or other consumers.

17.     REPRESENTATIONS AND WARRANTIES

17.1      The Seller represents and warrants to SCommerce that:

(a)   it has valid legal title to all Products and all necessary rights to distribute the Products and to perform its     obligations under the Fulfilment Agreement;

(b)    it will deliver all Products in new and merchantable condition;

(c)   all Products and their packaging will comply with all applicable marking, labelling, and other requirements required by law;

(d)    it has all rights and ownership, or is a licensed user, of all Intellectual Property Rights in relation to the Products and their supply;

(e)    it has comprehensive insurance in relation to the sale of the Products including, but not limited to, product liability insurance;

(f)  it is not aware of any claims made by any third party with regard to any alleged or actual infringement of Intellectual Property Rights or any other claim, demand or action in connection with the manufacture, sale, distribution or use of the Products;

(g)   the entry into the Fulfilment Agreement and the performance thereof by the Seller has been duly authorised and constitutes a valid and binding agreement of the Seller, enforceable against it in accordance with the terms thereof;

(h)    all information furnished to SCommerce with regard to the Products are true, accurate and not misleading;

(i)    all formal consents, waivers, approvals, authorisations, exemptions, registrations, licenses or declarations of or by or filing with, any authority or contracting party which are required to be made or obtained by the Seller in connection with the entry into the Fulfilment Agreement and the performance of the same, have been duly obtained; and

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

17.2      SCommerce represents and warrants to Seller that:

(a)    the entry into the Fulfilment Agreement and the performance thereof by SCommerce has been duly authorised and constitutes a valid and binding agreement of SCommerce, enforceable against it in accordance with the terms thereof;

(b)    all formal consents, waivers, approvals, authorisations, exemptions, registrations, licenses or declarations of or by or filing with, any authority or contracting party which are required to be made or obtained by SCommerce in connection with the entry into the Fulfilment Agreement and the performance of the same, have been duly obtained; and

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

18.     FORCE MAJEURE

18.1    Neither Party shall be liable to the other for loss or damage resulting from delay or failure to perform this Fulfilment Agreement, or any terms hereunder, either in whole or in part, when the same is due to causes beyond its reasonable control, including but not limited to civil war, insurrections, strikes, riots, fires, floods, explosions, earthquakes, serious accidents or any acts of God, government regulations, epidemics, quarantine or labour trouble resulting in cessation, slowdown or interruption of work. In the event of the same, the Parties’ obligations herein and the delivery dates shall be extended for the periods of such circumstances only so far as they affect the performance of this Fulfilment Agreement. 

18.2     The Party affected shall as soon as possible notify the other Party in writing of the commencement and (if applicable) end of said circumstances.

19.     CONFIDENTIAL INFORMATION

19.1      Neither Party will use information contained in the Fulfilment Agreement, exchanged in prior negotiations or any tender process for any purpose not contemplated by the Fulfilment Agreement.  Each Party must, and must ensure that its employees, agents and subcontractors who need such access in order to perform their duties, receive this information under obligations of confidentiality.

19.2      Clause 19.1 does not apply to the extent that:

(a)   either Party is required by law, regulation or the rules of any applicable stock exchange to disclose the information;

(b)   the information is public knowledge (and has not become public knowledge as a result of either Party’s breach of confidentiality); or

(c)   the information was independently created by a Party (and that Party has evidence in writing that the information falls within this exception).

20.     RELATIONSHIP

20.1     The Parties are independent contracting parties, and nothing in these T&Cs will make any Party the employee, partner, agent, legal representative, trust or joint venturer of the other for any purpose whatsoever, nor does it grant either Party any authority to assume or to create any obligation on behalf of or in the name of the other.

21.     ASSIGNMENT

21.1     Neither Party may assign this Fulfilment Agreement or any of its rights or obligations under this Fulfilment Agreement without the prior written consent of the other Party, provided always that SCommerce may assign such rights or obligations to an affiliate or for the purposes of a corporate restructuring.  For the purpose of this clause, assignment will include any assignment by operation of law and change in control of a Party.

22.     COSTS

22.1     Each Party will bear their own respective legal costs (as between solicitor and client) of and incidental to the negotiation, any variation and execution of this Fulfilment Agreement, and the enforcement or attempted enforcement of respective rights, remedies and powers under this Fulfilment Agreement, including referral of any issue under this Fulfilment Agreement to arbitration.

23.          SANCTIONS

23.1        The Seller represents and warrants that:

23.1.1     none of the Seller nor (to the actual knowledge of the Seller (having made enquiries, if any, that are reasonably expected of it)) any of the Seller's directors nor any persons acting on their behalf:

23.1.1.1.            is a Restricted Party; or

23.1.1.2.        has received notice of or is aware of any claim, action, suit, proceeding or investigation against it with respect to Sanctions by any Sanctions Authority; or

23.1.1.3.          has been engaged in (in the past five (5) years), and is not now engaged in, any dealings or transactions with any Restricted Party.

23.2      The Seller undertakes that it shall not, either by itself or through any other person authorised by it:

23.2.1          fund any trade, business or other activities of any Restricted Party; or

23.2.2          cause SCommerce to be in breach of any Sanctions or becoming a Restricted Party; or

23.2.3          engage in any dealings or transactions with any Restricted Party.

24.          ENTIRE AGREEMENT

24.1    The Fulfilment Agreement constitutes the entire agreement between the Parties concerning the subject matter of the Fulfilment Agreement and supersedes all prior negotiations, arrangements, agreements and understandings, either oral or written, between the Parties.

25.     VARIATION

25.1    These T&Cs may be modified by SCommerce from time to time without notice to Seller, and Seller’s continued use of the Fulfilment by Shopee services shall be deemed as Seller’s consent to any  modified T&Cs.

26.     GOVERNING LAWS

26.1     The Fulfilment Agreement shall be governed by and construed under the laws of Philippines.  In the event of any dispute, controversy, claim or difference of any kind whatsoever arising between the Parties in connection with the Fulfilment Agreement, including the breach, termination or validity of the Fulfilment Agreement, or in connection with the determination of any matters which are subject to objective determination pursuant to the Fulfilment Agreement (“Dispute”), which Dispute has been subject of a written notice by one Party to the other (“Dispute Notice”), the Parties shall attempt, for a period of thirty (30) days after the receipt by one (1) Party of a Dispute Notice from the other Party of the existence of a Dispute, to settle such Dispute in the first instance by mutual discussions between the senior management of each of the Parties. If the Dispute cannot be settled by mutual discussions within the thirty (30) day period, it shall be referred to and finally resolved by arbitration administered by the Philippine Dispute Resolution Center, Inc. (PDRCI) in the Philippines in accordance with the Arbitration Rules of the PDRCI (“PDRCI Rules”) for the time being in force, which rules are deemed to be incorporated by reference in this clause. The seat of the arbitration shall be Mandaluyong City, Metro Manila, Philippines. This arbitration agreement shall be governed by Philippine law including the Alternative Dispute Resolution Act. The Tribunal shall consist of one (1) arbitrator and the language of the arbitration shall be English.

27.        PARTIAL INVALIDITY

27.1     In the event of the invalidity of any part or provision of the Fulfilment Agreement such invalidity must not affect the enforceability of any other part or provision of the Fulfilment Agreement.

28.        SURVIVAL

28.1    Clauses 7 (Buyer Contract and Payment to Seller), 10 (Fulfilment Service Fees), 11 (Buyer Information and Personal Data), 14 (Termination), 15 (Liability), 16 (Indemnity), 17 (Representations and Warranties), 19 (Confidential Information), 26 (Governing Laws), 28 (Survival) and 30 (Notices) shall survive the expiration and termination of the Fulfilment Agreement.

29.        WAIVER

29.1     A Party’s failure to exercise or delay in exercising a right or power does not operate as a waiver of that right or power and does not preclude the future exercise of that right or power, except as otherwise provided in these T&Cs.

30.        NOTICES

30.1      Any notice, request, demand or other communications required by the Fulfilment Agreement to be given by either Party to the other shall be delivered by hand or electronic mail (e-mail) or sent by registered post or courier to such other Party at their respective address given herein. Any notice sent by hand shall be deemed to have been received on the day on which it was delivered, any notice sent by registered post or courier shall be subsequently confirmed by letter posted or delivered as soon as practicable thereafter provided, and any e-mail sent shall be deemed to have been received by the other Party at the time of transmission. However, that any such notice, demand, request or other communication shall be deemed effective on the date of transmission thereof by e-mail and any notice sent by registered post or courier shall be deemed to have been served and received on the fifth (5th) day following the date of posting. If the day on which any notice deemed delivered falls on a Sunday or a public holiday, such notice shall only be deemed to have been received on the next day which is not a Sunday or a public holiday.

30.2      Address for services for the respective Parties shall be as follows:-

If to SCommerce:

Corner of Honest Street and Determined Street,

Calamba Premiere International Park (CPIP),

Brgy. Batino, Calamba City 4027

Laguna, Philippines

Attention: Group General Counsel

Email: legal.ph@scommerce.ph

If to Seller:

As specified in the Shopee Seller Centre 

I, THE SELLER, HAVE READ THESE TERMS OF SERVICE AND AGREE TO ALL OF THE PROVISIONS CONTAINED ABOVE AND ANY REVISION TO THE SAME HEREAFTER.

BY TICKING THE “I HAVE READ AND AGREE TO THE AGREEMENT” CHECKBOX, AND SUBSEQUENTLY CLICKING THE “SUBMIT” BUTTON DURING THE REGISTRATION PROCESS, I UNDERSTAND THAT I AM CREATING A DIGITAL SIGNATURE, WHICH I INTEND TO HAVE THE SAME FORCE AND EFFECT AS IF I HAD SIGNED MY NAME MANUALLY.