TRANSACTION SERVICES AGREEMENT
Updated May 01, 2018
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY! PLEASE PAY ATTENTION TO PROVISIONS THAT EXCLUDE OR LIMIT LIABILITY AND TERMS OF DISPUTE RESOLUTION, GOVERNING LAW AND JURISDICTION, WHICH MAY APPEAR IN CAPITAL LETTERS.
1. Application and Acceptance of Terms
1.1 Contracting Party. This Agreement is entered into between you (also referred to as “Member” hereinafter) and K1Malls and all of its subsidiaries and joint ventures worldwide (“K1Malls” or “we”) for use of K1Malls’s certain transaction services as described below.
1.2 Transactional Terms. K1Malls provides an online transaction platform and ancillary services (“Transaction Services”) on K1Malls which allow registered members of K1Malls to conclude online transactions for products or services within K1Malls subject to the terms of this Agreement. K1Malls may publish transaction rules, dispute rules and other rules and policies for any type of online transactions and any subsequent amendments or modifications (“Transactional Terms”) as may be made from time to time. Such Transactional Terms are expressly incorporated into this Agreement by reference and you agree to be bound by such rules and policies.
As some or part of the Transaction Services may be supported and provided by affiliates of K1Malls, K1Malls may delegate some of the Transaction Services to its affiliates, who you agree may invoice you for their part of the Transaction Services.
1.4 Binding Agreement. This Agreement, including the Transactional Terms and the General Terms, and, to the extent as applicable, K1Malls Supplemental Services Agreement, form a legally binding agreement between you and K1Malls in relation to your use of the Transaction Services. By accessing and using the Transaction Services, you agree to accept and be bound by this Agreement. Please do not use the Transaction Services if you do not accept all of the terms of this Agreement.
1.5 Amendments. You acknowledge and agree that K1Malls may amend any terms of this Agreement including the Transactional Terms and the General Terms at any time by posting the relevant amended and restated version on the Site. The amended terms shall be effective immediately upon posting. By continuing to use the Transaction Services, you agree that the amended terms will apply to you. This Agreement may not otherwise be amended except in writing by an authorized officer of K1Malls.
1.6 Language Version. Unless otherwise K1Malls has posted or provided a translation of the English version of any terms of this Agreement including the Transactional Terms and the General Terms, you agree that the translation is provided for convenience only and that the English language version will govern your use of the Transaction Services.
1.7 K1Malls Affiliates. Some of the Transaction Services may be supported by our affiliates.
1.8 Additional Terms. In some cases, you may be required to additionally enter into a separate agreement with K1Malls or our affiliates in connection with the Transaction Services (“Additional Terms”). If there is any contradiction between the provisions of this Agreement and the provisions of the Additional Terms, the Additional Terms shall govern the relevant types of Transaction Services or Online Transactions, as appropriate.
1.9 Membership Services. This Agreement does not affect your agreement with us or any of our affiliates concerning your subscription and use of the membership services of the Site, unless otherwise stipulated in this Agreement or the relevant service agreement.
2. Transaction Services
2.1 Transaction Services. K1Malls’s Transaction Services are designed to facilitate registered members of K1Malls to place, accept, conclude, manage and fulfill orders for the provision of products and services online within the Site (“Online Transactions”), which may include certain services which will be either supported by (i) K1Mall affiliates, or (ii) K1Malls. K1Malls reserves the right to change, upgrade, modify, limit or suspend the Transaction Services or any of its related functionalities or applications at any time temporarily or permanently without prior notice. K1Malls further reserves the right to introduce new features, functionalities or applications to the Transaction Services or to future versions of the Transaction Services. All new features, functionalities, applications, modifications, upgrades and alterations shall be governed by this Agreement, unless otherwise expressly stated by K1Malls.
2.2 Members Only. K1Malls’s Transaction Services are only available to registered members of K1Malls. If your subscription to the membership of K1Malls expires or is early terminated for any reason, you are not eligible to use the Transaction Services. In the event that you have a valid Online Transaction under this Agreement whilst your membership registration on K1Malls is terminated, K1Malls shall have the full discretion and authority to refund to Buyer and/or release to Seller (both Buyer and Seller as defined below) all or part of the funds under the Online Transactions as K1Malls considers appropriate. If you are a Seller, you are required to a valid bank account subject to verification and confirmation by K1Malls and our affiliates.
2.3 Types of Transactions. K1Malls’s Transaction Services are available to types of Online Transactions permitted by K1Malls only. For any type of Online Transactions, K1Malls may limit any or all of the Transaction Services to a specified group of members in accordance with the relevant Transactional Terms. The types of Online Transactions and other benefits, features and functions of the Transaction Services available to a registered member may vary for different countries and regions. No warranty or representation is given that the same type and extent of transactions, benefits, features and functions will be available to all members.
2.4 Lawful Items. The products or services of an Online Transaction using the Transaction Services must be lawful items and must not be otherwise prohibited or restricted by this clause 2.4. You shall not use the Transaction Services in connection with any Online Transaction that:
(a) may infringe K1Malls’s or any third party’s legitimate rights including but not limited to copyright, trademark right, patent or other intellectual property rights.
(b) may be in breach of the Product Listing Policy or the Intellectual Property Right Protection Policy;
(c) may be in breach of other terms of this Agreement including the Transactional Terms and the General Terms.
K1Malls shall have the right to refuse or cancel any Online Transaction in breach of this clause 2.4.
2.5 Refuse or Cancel Transactions. Apart from clause 2.4, K1Malls reserves the right, at our sole discretion, to refuse or cancel any Online Transaction for any reason. Some situations that may result in an Online Transaction being rejected or canceled include where problems are identified by our credit and fraud control department, where K1Malls has reason to believe the Online Transaction is unauthorized, violates any law, rule or regulations or may otherwise subject K1Malls or any of our affiliates to liability. K1Malls may also require additional verifications or information for any Online Transaction.
2.6 K1Malls Supplemental Services.
(a) K1Malls may, through its affiliates, provide certain services for certain Online Transactions (“Supplemental Services”). Supplemental Services are provided by K1Malls and its affiliates to receive payment of funds in support of K1Malls Site for the Online Transactions. The Supplemental Services are provided in accordance with the terms and conditions set out in the Supplemental Services Agreement .
(b) Buyer Protection Plan. K1Malls may also provide buyer protection plan for certain Online Transactions. In case of Seller who has been offered to subscribe to the buyer protection plan, upon entering into a separate agreement with K1Malls, Seller may be required to provide deposits using the methods as designated by K1Malls on K1Malls to secure Seller’s due performance of obligations under the relevant buyer protection plan. Seller agrees to permit and hereby authorize K1Malls to deduct, withhold and dispose any deposits provided in accordance with the terms under the relevant buyer protection plan. Buyer acknowledges and agrees that the protection afforded to you under a buyer protection plan applies to those Online Transactions where the Seller subscribed to such plan and the purchase falls within the buyer protection plan’s scope and (i) Supplemental Services under clause 3.4 of the Supplemental Services Agreement and (ii) K1Malls Supplemental Services under clause 3.4 of the K1Malls Supplemental Services Agreement will not be applicable to you for such Online Transactions if Seller subscribed to buyer protection plan and such plan already covers your purchase. Buyer acknowledges and agrees K1Malls will add guarantees for the seller on such Online Transactions within the scope of buyer protection plan. The guarantee service will be performed according to the agreement reached between the guarantee service provider and the Seller.
2.8 Transactional Terms. For any type of Online Transactions, K1Malls may impose additional restrictions, limitations and prohibitions as well as penalties for any violations in the relevant Transactional Terms.
2.9 Disputes between Buyers and Sellers. You agree that any Dispute arising between you and the other party to an Online Transaction will be handled in accordance with clause 10, and that K1Malls shall have the full right and power to make a determination for such Dispute. Upon receipt of a Dispute, K1Malls shall have the right to request either or both of Buyer and Seller to provide supporting documents. You agree that K1Malls shall have the absolute discretion to reject or receive any supporting document. You also acknowledge that K1Malls is not a judicial or arbitration institution and will make the determinations only as an ordinary non-professional person. Further, we do not warrant that the supporting documents that the parties to the Dispute submit will be true, complete or accurate. You agree not to hold K1Malls and our affiliates liable for any material which is untrue or misleading.
2.10 Powers of K1Malls. You expressly acknowledge and agree that K1Malls shall have the full power, authority and discretion to reject or cancel an Online Transaction and to make a determination on any dispute between buyer and seller including the remittance of the funds under an online transaction that are held by K1malls or its affiliates as instructed by K1Malls in accordance with this Agreement, the Supplemental Services Agreement, and the relevant transactional terms. You also acknowledge that this Agreement, the K1Malls Supplemental Services Agreement and the relevant Transactional Terms may not cover all issues that may arise in connection with an Online Transaction. You agree and accept that K1Malls shall have the right to modify or supplement the Transaction Terms. You further agree and accept that K1Malls shall have the right to make determinations wherever K1Malls considers appropriate having regard to the evidence received by us, commonly accepted principles and practices in the relevant industries and interests of both Buyer and Seller regardless whether the issue in question has been expressly addressed in the Transactional Terms or this Agreement.
2.11 K1Malls’s Records. In case of any dispute in connection with any Online Transaction, the records of K1Malls shall take precedence and be conclusive.
2.12 Transactions involving a third party finance provider.
You agree that:
(a) K1Malls does not guarantee any third party finance provider (the “Lender”) will provide financing to Buyer in connection with the Online Transaction and shall not be held liable to Buyer or Seller in connection with any third party financing in connection with the Online Transaction;
(b) each of Buyer and Seller hereby authorizes K1Malls to disclose information related to Buyer, Seller and/or the Online Transaction to the Lender in connection with the Lender’s provision of financing for the Online Transaction; and
(c) any dispute with the Lender in connection with the Online Transaction shall be resolved between the Lender and the Buyer. Notwithstanding the power given to K1Malls under this Agreement, it is not K1Malls’s obligation to resolve or assist in the resolution of such dispute.
3. Transactions between Sellers and Buyers
3.1 Seller and Buyer. For the purpose of this Agreement, the term “Seller” means the registered member who supplies the product(s) or service(s) under an Online Transaction, and the term “Buyer” means the registered member who purchases or acquires the product(s) or service(s) under an Online Transaction.
3.2 Online Order. Seller and Buyer shall enter into an Online Transaction for products or services by completing, submitting and accepting an order online using the applicable standard order form on K1Malls. Seller and Buyer yourselves shall be responsible for ensuring that you have agreed to, and specified, all the relevant terms and conditions for the products or services in the relevant online order form, including but not limited to the pricing, quantity, specifications, quality standards, inspection, shipping etc. K1Malls may refuse to process or cancel any Online Transaction which in K1Malls’s reasonable opinion, has insufficient information to constitute a binding contract.
3.3 Online Transactions Subject to This Agreement. An Online Transaction is additionally subject to the applicable terms and conditions set forth in this Agreement and the Transactional Terms. Seller and Buyer shall complete the Online Transaction according to the terms of the online order, the relevant Transactional Terms and this Agreement. Seller or Buyer may only cancel any Online Transaction according to the relevant Transactional Terms.
3.4 Transaction between Seller and Buyer Only. Each Online Transaction is made by and between a Seller and a Buyer only. Despite that K1Malls provides the Transaction Services and, if applicable, may conduct formality review of an Online Transaction, K1Malls shall not be considered as a party to the Online Transaction. K1Malls does not represent Seller or Buyer in any Online Transaction. K1Malls will not be responsible for the quality, safety, lawfulness or availability of the products or services offered under any Online Transaction or the ability of either Seller or Buyer to complete any Online Transaction. You agree that you will not hold K1Malls and our affiliates and agents liable for any losses, damages, claims, liabilities, costs or expenses arising from any Online Transactions, including any breach, partial performance or non-performance of the Online Transaction by the other party to the transaction.
3.5 Payment of Contract Price. For any Online Transaction, Buyer agrees to pay the full transaction price listed for Online Transaction to the Seller through K1Malls affiliates or services of K1Malls unless another option is made available directly by K1Malls on K1Malls. When using K1Malls to submit payment for an K1Malls Online Transaction, payments are (in the case of Online Transaction through K1malls or its affiliates) processed through accounts owned by K1Malls or one of its affiliates and/or a registered third party service provider acting on K1Mall’s behalf, and (in the case of Online Transaction through K1Malls) processed through accounts owned by K1Malls or one of its affiliates and/or a registered third party service provider acting on K1Malls’s behalf. The funds are received for the Seller in accordance with the K1Malls Transaction Services Agreement. Seller agrees that the Buyer’s full payment of the transaction price listed for the Online Transaction to K1Malls (as the case may be) constitutes final payment to Seller and Buyer’s payment obligation for the Online Transaction is fully satisfied upon receipt of funds by K1Malls Affiliates’ account or K1Malls’s account.
In the case the Online Transaction adopts K1Malls Supplemental Services; the payment in connection with the Online Transactions concluded will be facilitated by K1Mall’s affiliate. The K1Mall’s affiliate shall not dispose of any such fund except in accordance with K1Malls’s terms as agreed by Seller and Buyer which are set out in the terms and conditions of this Agreement and the K1Malls Supplemental Services Agreement. Seller has requested and agreed that the settlement of funds to Seller be delayed as provided in the K1Malls Supplemental Services Agreement.
By using the K1Malls Supplemental Services, you acknowledge and agree that K1Mall’s affiliate is not a bank and the K1Mall Supplemental Services should in no way be construed as the provision of banking services. K1Mall’s affiliate is not acting as a trustee, fiduciary or escrow with respect to User’s funds and it does not have control of, nor liability for, the products or services that are paid for with the K1Mall Supplemental Services. K1Mall’s affiliate does not guarantee the identity of any User or ensure that a Buyer or a Seller will complete a transaction on K1Malls Site. You further agree that neither Buyer nor Seller will receive interest or other profits in relation to the Supplemental Services.
In the case the Online Transaction adopts K1Malls Supplemental Services, the payment in connection with the Online Transactions concluded will be facilitated by K1Malls. K1Malls shall not dispose of any such fund except in accordance with K1Malls’s terms as agreed by Seller and Buyer which are set out in the terms and conditions of this Agreement and the K1Malls Supplemental Services Agreement . Seller has requested and agreed that the settlement of funds to Seller be delayed as provided in the K1Malls Supplemental Services Agreement.
By using the K1Malls Supplemental Services, you acknowledge and agree that K1Malls is not a bank and the K1Malls Supplemental Services should in no way be construed as the provision of banking services. K1Malls is not acting as a trustee, fiduciary or escrow with respect to User’s funds and it does not have control of, nor liability for, the products or services that are paid for with the K1Malls Supplemental Services. K1Malls does not guarantee the identity of any User or ensure that a Buyer or a Seller will complete a transaction on K1Malls Site. You further agree that neither Buyer nor Seller will receive interest or other profits in relation to the K1Malls Supplemental Services.
In the case of e-Credit Line services, you agree that the full payment of the contract price of the Online Transaction without any deductions must be made in US dollar in clear funds by one of the payment methods designated by K1Malls only. In the case that the Online Transaction adopts a payment method involving a third-party finance provider, the relevant funds may be paid directly to the Seller on behalf of the Buyer by such finance provider.
3.6 Payment Methods. Please note that the payment methods available on K1Malls may be provided by K1Malls’s partners. If there is any chargeback or reversal of any payment requested by a payment service partner, Seller agrees that K1Malls has the right to refund the money so requested by the payment service partner without liability to Seller. K1Malls will use reasonable efforts to assist you in participating in the dispute resolution process of the relevant payment service partners. However, if the participation in the dispute resolution process is subject to additional fees, this will be at your own cost only.
3.7 Third Party Vendors. You may engage one or more third party vendors for the purpose of completing and fulfilling an Online Transaction such as the warehousing and logistic service companies, shipping agents, inspection agents, insurance companies, etc. Some of such third party vendors may be partners of K1Malls and thus designated by K1Malls to you. Among such designated partners, you may be required to agree and accept the terms and conditions of their services online within the K1Malls.co Site. Notwithstanding the foregoing circumstances, for all third party vendors, you acknowledge and agree that such third party vendors are engaged at your own discretion and cost and that you will not hold K1Malls and our affiliates and agents liable for any losses, damages, claims, liabilities, costs or expenses arising from the services of such third party vendors.
3.8 Your Agent. If you are required to conclude and complete an Online Transaction through an agent e.g. a Seller may be required to engage a qualified import and export agent as its export agent, such agent is merely an agent of you. If any obligations are required to be performed by the agent, you shall remain solely liable to the other party of the Online Transaction for the non-performance or default by your agent.
4. K1Malls Service Fees
4.1 Service Fees. K1Malls charges service fees for Online Transactions according to the fee schedules announced by K1Malls on K1Malls. K1Malls reserves the right to charge any service fees for other types of Online Transactions upon reasonable prior notification published on the Site. In the case the Online Transaction adopts K1Mall Supplemental Services, you hereby authorize K1Malls to instruct K1Mall’s affiliate to deduct any service fees that are due and payable to K1Malls under an Online Transaction and to pay the same to K1Malls when K1Mall’s affiliate releases any amount held by it under the Online Transaction. Neither K1Malls nor K1Mall’s affiliate has any control over, and are not responsible or liable for, the products or services that are paid for with our service. We cannot ensure that a buyer or a seller you are dealing with will actually complete the transaction.
4.2 Third Party Fees Not Included. The service fees charged by K1Malls do not include any fees for any service or product that you may acquire or purchase in connection with the Online Transaction. It shall be your responsibility to settle the fees with such third party vendors.
4.3 Taxes, Financial Charges Not Included. All fees charged by K1Malls are exclusive of any taxes, duties or other governmental levies or any financial charges. You agree to pay and be responsible for any taxes, duties, levies or charges for the use of the Transaction Services in addition to our service fees. In the event K1Malls is required by any applicable law to collect or withhold any taxes or duties, you agree to pay such taxes or duties to K1Malls. You will also be liable for any financial charges for remission of funds to you, and K1Malls shall have the right to pay such charges from such funds. K1Malls and K1Mall’s affiliate shall have the right to deduct any financial charges incurred as a result of providing the Transaction Services and the party receiving the funds will bear the costs of such bank charges.
5. Member’s Responsibilities
5.1 Provision of Information and Assistance. You agree to give all notices, provide all necessary information, materials and approval, and render all reasonable assistance and cooperation necessary for the completion of the Online Transactions and K1Malls’s provision of the Transaction Services. If your failure to do so results in delay in the provision of any Transaction Service, cancellation of any Online Transaction, or disposal of any funds, K1Malls shall not be liable for any loss or damages arising from such default.
5.2 Representations and Warranties. You represent and warrant that:
(a) you will use the Transaction Services in good faith and in compliance with all applicable laws and regulations including laws related to anti-money laundering and counter-terrorism financing；
(b) all information and material you provide in connection with the use of the Transaction Services is true, lawful and accurate, and is not false, misleading or deceptive;
(c) you will not use the Transaction Services to defraud K1Malls, our affiliates, or other members or users of K1Malls or engage in other unlawful activities (including without limitation dealing in products prohibited by law);
(d) in case that you are a Seller of products, you have the legitimate right and authorization to sell, distribute or export the products using the Transaction Services and such products do not infringe any third party’s rights;
(e) in case that you are a Seller of products, you have good title to the products ordered under the Online Transaction, and the products meet the agreed descriptions and requirements; and
(f) in case that you are a Seller of services, you will provide the services ordered with reasonable care and skills.
5.3 Breaches. If you are, in K1Malls’s opinion, not acting in good faith, abusing the Transaction Services, or otherwise in breach of this Agreement, K1Malls shall have the right to cancel the relevant Online Transaction(s). K1Malls also reserves the right to impose any penalty, or to temporarily or permanently suspend or terminate your use of the Transaction Services, temporarily or permanently suspend or terminate or procure the suspension or termination of your membership on K1Malls. K1Malls also reserves the right to (i) temporarily suspend the transaction functionalities of your account with K1Malls for a prescribed period determined by K1Malls, or permanently terminate the use of your K1Malls account and/or (ii) authorize K1Mall’s affiliate to temporarily suspend the transaction functionalities of your K1Mall’s affiliate account for a prescribed period determined by K1Malls, or permanently terminate the use of your K1Mall’s affiliate account. K1Malls may also publish the findings, penalties and other records regarding the breaches on K1Malls.
5.4 Obligations to Pay Taxes. You shall be solely responsible for payment of any taxes, duties or other governmental levies or any charges or fees that may be imposed on any products or services purchased or supplied under or in connection with the Online Transactions.
5.5 Feedback System. You shall not take any action which may undermine the integrity of K1Malls’s feedback system, such as providing positive feedback on oneself on K1Malls using secondary Member IDs or through third parties or by providing unsubstantiated negative feedback on another member on K1Malls.
5.6 Indemnification by Member. You agree to indemnify K1Malls and our affiliates, employees, directors, officers, agents and representatives and to hold them harmless, from any and all losses, damages, actions, claims and liabilities (including legal costs on a full indemnity basis) which may arise, directly or indirectly, from your use of the Transaction Services or from your breach of this Agreement. K1Malls reserves the right, at our own discretion, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you shall cooperate with K1Malls in asserting any available defenses.
5.7 Collection and Use of Information.
6.1 Confidential Obligations. You shall keep confidential all confidential information provided by other members of K1Malls or K1Malls in connection with any Online Transaction or the Transaction Services.
6.2 Confidential Information. All information and material provided by another member of K1Malls or K1Malls will be deemed to be confidential information unless such information or material is already in the public domain or has subsequently becomes public other than due to your breach of the confidential obligations.
7. Disclaimer and Limitation of Liability
7.1 No Warranty. You expressly agree that your use of the Transaction Services is at your sole risk. TO THE FULL EXTENT PERMITTED BY LAW THE TRANSACTION SERVICES ARE PROVIDED ON THE "AS IS", "AS AVAILABLE" AND “WITH ALL FAULTS” BASES, AND K1MALLS MAKES NO REPRESENTATION OR WARRANTY THAT THE TRANSACTION SERVICES WILL BE UNINTERRUPTED, TIMELY OR ERROR FREE. K1MALLS MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO THE ACCURACY, TRUTHFULNESS AND COMPLETENESS OF THE INFORMATION PROVIDED BY ANY MEMBER OF K1MALLS. YOU WILL BE SOLELY RESPONSIBLE FOR ALL CONSEQUENCES RESULTING FROM YOUR OWN JUDGEMENT AND DECISION TO USE OR OTHERWISE RELY ON SUCH INFORMATION. K1MALLS AND OUR AFFILIATES FURTHER EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF CONDITION, QUALITY, DURABILITY, PERFORMANCE, ACCURACY, RELIABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH POSSIBILITY WAS REASONABLY FORESEEABLE. ALL SUCH WARRANTIES, REPRESENTATIONS, CONDITIONS, UNDERTAKINGS AND TERMS ARE HEREBY DISCLAIMED AND EXCLUDED.
7.2 Exclusion and Limitation of Liabilities. TO THE FULL EXTENT PERMITTED BY LAW, K1MALLS SHALL NOT BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS OR REVENUES, BUSINESS INTERRUPTION, LOSS OF BUSINESS OPPORTUNITIES OR LOSS OF DATA, WHETHER IN CONTRACT, NEGLIGENCE, TORT, EQUITY OR OTHERWISE, ARISING FROM THE USE OF OR INABILITY TO USE THE TRANSACTION SERVICES. THE AGGREGATE LIABILITY OF K1MALLS AND OUR AFFILIATES AND AGENTS INCLUDING BUT NOT LIMITED TO K1MALLS (EUROPE) LIMITED AND ALIPAY ARISING FROM THE TRANSACTION SERVICES IN CONNECTION WITH ANY ONLINE TRANSACTION SHALL NOT EXCEED THE HIGHER OF THE SERVICE FEES CHARGED BY K1MALLS OR US$1,000.
7.3 SOME OR ALL OF THESE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU IF YOUR STATE, PROVINCE OR COUNTRY DOES NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE FOREGOING EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER RIGHTS UNDER YOUR LOCAL LAW IN YOUR STATE, PROVINCE OR COUNTRY THAT VARY FROM STATE TO STATE. NOTHING IN THIS AGREEMENT IS INTENDED TO AFFECT THOSE RIGHTS IF THEY ARE APPLICABLE TO YOU.
8. Force Majeure
8.1 Force Majeure. Under no circumstances shall K1Malls and our affiliates and agents be held liable for any delay or failure or disruption of the Transaction Services resulting directly or indirectly from acts of nature, forces or causes beyond our reasonable control, including without limitation, acts of God, Internet failures, computer, telecommunications or any other equipment failures, electrical power failures, strikes, labour disputes, riots, insurrections, civil disturbances, shortages of labour or materials, terrorism, war, governmental actions, orders of domestic or foreign courts or tribunals.
9.1 Notices. Except as explicitly stated otherwise, legal notices shall be served on you by sending notices to the email address in your latest membership profile on K1Malls. Notice shall be deemed given 24 hours after email is sent, unless we are notified that the email address is invalid. Alternatively, we may give you legal notices by mail to the address in your latest membership profile in which case the notice shall be deemed given five days after the date of mailing. Except as explicitly stated otherwise, legal notices shall be served on K1Malls by sending the notices to K1Malls management office physical address.
10. Governing Law; Jurisdiction
10.1 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE RELEVANT STATE THAT THE K1MALL SITE OR AFFILIATE IS MANAGED FROM WITHOUT REGARD TO THAT PARTICULAR STATE’S CONFLICT OF LAW’S PROVISIONS.
10.2 Amicable Negotiations. If any dispute or claim arises from or in connection with this Agreement, an Online Transaction or your use of the Transaction Services (“Dispute”), the relevant parties shall resolve the Dispute through amicable negotiations.
10.3 DISPUTE BETWEEN BUYER AND SELLER. IN CASE A DISPUTE ARISES BETWEEN BUYER AND SELLER FROM OR IN CONNECTION WITH AN ONLINE TRANSACTION, IF THE DISPUTE IS NOT RESOLVED THROUGH AMICABLE NEGOTIATION WITHIN THE PRESCRIBED TIME PERIOD ACCORDING TO THE RELEVANT TRANSACTIONAL TERMS, YOU AGREE TO SUBMIT THE DISPUTE TO K1MALLS FOR DETERMINATION. IF YOU ARE DISSATISFIED WITH K1MALLS’S DETERMINATION, YOU MUST APPLY TO THE RELEVANT STATE ARBITRATION CENTRE FOR ARBITRATION AND NOTIFY K1MALLS OF SUCH APPLICATION WITHIN 20 CALENDAR DAYS AFTER K1MALLS’S DETERMINATION. IF EACH OF BUYER AND SELLER IN THE DISPUTE DOES NOT APPLY FOR ARBITRATION WITHIN THE ABOVE 20 CALENDAR DAYS, EACH OF THE BUYER AND THE SELLER SHALL BE DEEMED TO HAVE AGREED THAT K1MALLS’S DETERMINATION SHALL BE FINAL AND BINDING ON YOU. WITH A FINAL DETERMINATION, IN THE CASE THE ONLINE TRANSACTION ADOPTS THE SUPPLEMENTAL SERVICES, K1MALLS MAY INSTRUCT K1MALLS AFFILIATE TO DISPOSE THE FUNDS ACCORDING TO SUCH DETERMINATION, AND IN THE CASE THE ONLINE TRANSACTION ADOPTS K1MALLS SUPPLEMENTAL SERVICES, K1MALLS MAY DISPOSE OF THE FUNDS HELD BY K1MALLS ACCORDING TO SUCH DETERMINATION. FURTHER, EACH OF BUYER AND SELLER SHALL BE DEEMED TO HAVE WAIVED ANY CLAIM AGAINST K1MALLS, ALIPAY AND OUR AFFILIATES AND AGENTS.
10.4 Other Disputes. In case a Dispute arises between you and K1Malls in any other circumstances, if the Dispute is not resolved between you and K1Malls, you and K1Malls agree that the Dispute shall be finally resolved by arbitration with the RELEVANT ARBITRATION CENTRE.
10.5 ARBITRATION. IF ANY DISPUTE IS SUBMITTED FOR ARBITRATION, THE ARBITRATION SHALL BE CONDUCTED IN ACCORDANCE WITH THE RULES OF THE RELEVANT ARBITRATION CENTRE IN FORCE AT THE TIME OF APPLYING FOR ARBITRATION AS AMENDED BY THIS CLAUSE. THE ARBITRATION PANEL SHALL CONSIST OF ONE SINGLE ARBITRATOR. UNLESS THE PARTIES AGREE OTHERWISE, THE ARBITRATION SHALL BE CONDUCTED IN ENGLISH AND IN RELEVANT STATE. THE ARBITRATION SHALL BE CONDUCTED BY TELEPHONE, ONLINE AND/OR SOLELY BASED ON WRITTEN SUBMISSIONS AS SPECIFIED BY THE PARTY INITIATING THE ARBITRATION, PROVIDED THAT THE ARBITRATION SHALL NOT INVOLVE ANY PERSONAL APPEARANCE BY THE PARTIES OR WITNESSES UNLESS OTHERWISE AGREED BY THE PARTIES. THE ARBITRATION AWARD RENDERED BY THE RELEVANT ARBITRATION CENTRE SHALL BE FINAL AND BINDING ON ALL THE RELEVANT PARTIES. THE ARBITRATION EXPENSES SHALL BE BORNE BY THE LOSING PARTY UNLESS OTHERWISE DETERMINED IN THE AWARD.
10.6 Indemnification. If you initiate any legal proceedings against K1Malls or our affiliates in breach of this clause 10, including any legal proceedings disputing K1Malls’s determination which has become binding on you according to this clause 10, you shall hold K1Malls and our affiliates, agents, employees, directors, officers harmless and indemnified against any claim, losses, damages that may be suffered by us.
10.7 Limitation Period. In any event, you may not make any claim against K1Malls or our affiliates under this Agreement after one year from the occurrence of the matter giving rise to the claim.
10.8 Injunctive Relief. Notwithstanding the foregoing provisions, either party may seek injunctive or other equitable relief against the other party in any court of competent jurisdiction prior to or during the arbitration.
11. General Provisions
11.1 Entire Agreement. This Agreement constitutes the entire agreement between you and K1Malls with respect to and governs the use of the Transaction Services, superseding any prior written or oral agreements in relation to the same subject matter herein.
11.2 Severance. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be deleted and the remaining provisions shall remain valid and be enforced.
11.3 Headings. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
11.4 Independent Contractor. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
11.5 No Waiver. Any failure by K1Malls and our affiliates to exercise any of our rights under this Agreement shall not constitute a waiver of such right or a waiver with respect to subsequent or similar breach. A waiver shall be effective only if made in writing.
11.6 Assignment. K1Malls shall have the right to assign this Agreement (including all of our rights, titles, benefits, interests, and obligations and duties in this Agreement) to any of our affiliates and to any successor in interest. K1Malls may delegate certain of K1Malls rights and responsibilities under this Agreement to independent contractors or other third parties. You may not assign, in whole or part, this Agreement to any person or entity.