Tenant Agreement

 

 

INTRODUCTION

This Agreement contains the terms and conditions that govern the Tenant’s access to and use of, the Tenant Program and is an agreement between the Tenant and the Company.

1. INTERPRETATION

1.1. No provision shall be construed against or interpreted to the disadvantage of any Party because of such Party having or being deemed to have structured or drafted such provision. The rule of interpretation that an agreement will be interpreted against the Party responsible for the drafting and any similar rules of interpretation shall not apply to this Agreement and the Parties waive any rights they have to rely on such rules.

1.2. Terms other than those defined within this Agreement will be given their plain English meaning, and those terms, acronyms, and phrases known in the information and communications technology industry shall be interpreted by their generally accepted meanings.

1.3. If any conflict exists between the provisions of this Agreement and any Annexures attached hereto, the provisions of the Annexures shall prevail.

1.4. When any number of days is prescribed in this Agreement, it shall be reckoned to exclude the first and to include the last day.

1.5. Any reference in this Agreement to legislation or subordinate legislation is to such legislation or subordinate legislation at the date of signature hereof and as amended and/or re-enacted from time to time.

1.6. Words importing the singular shall include the plural, and vice versa, words importing the masculine gender shall include the feminine and neuter genders, and vice versa, and words importing natural persons shall include legal persons, and vice versa.

2. DEFINITIONS

2.1. Unless the context indicates otherwise, the words and expressions set out below shall bear the following meanings and cognate expressions shall bear corresponding meanings:

2.1.1. “Admin Fee” shall mean the non-refundable administration fee required to process the Tenant’s Application. The fee is once-off per Tenant Application.

2.1.2. “Claim” or “Claims” shall mean any and all foreseeable or unforeseeable and alleged or actual actions, causes of action (whether in tort, agreement or strict liability, and whether in law, equity, statutory or otherwise), claims, demands, lawsuits, legal proceedings, administrative or other proceedings or litigation.

2.1.3. “Confidential Information” means all information communicated by a disclosing Party that should reasonably be considered confidential under the circumstances, notwithstanding whether it was identified as such at the time of disclosure, including, without limitation the terms of this Agreement (including all Annexures and policies referenced herein or attached hereto); all trade secrets; existing or contemplated services, designs, technology, processes, technical data, engineering, techniques, methodologies, and concepts and any information related thereto; all Transaction Information, including Payment Card Data, and all Tax Codes of the Company.

2.1.4. “Content” shall mean all information, content, and images, including without limitation, the product information, (i) provided or made available by Tenant or its affiliates to the Company or its Affiliates or Service Providers for use in connection with the Tenant Program and (ii) otherwise made available by Tenant or its affiliates to customers on the Mall For Women Site (e.g., through Tenant’s hosting of such information, content or images).

2.1.5. “Customer” means a customer purchasing products through the Mall For Women Site.

2.1.6. “Effective Date” means the date of acceptance of this Agreement by the Tenant.

2.1.7. “Excluded Offers” means private promotions offered only to all or a subset of Tenant’s existing customers by e-mail or regular mail, and Public Promotions that a Tenant has indicated in writing that it cannot support an equivalent offer or promotion cannot be provided to the Company.

2.1.8. “Intellectual Property Right” means any patent, copyright, trademark, service mark, trade dress (including any proprietary “look and feel”), trade name, logo, moral right, trade secret, and any other intellectual property right arising under any Law and all ancillary and related rights, including all rights of registration and renewal and causes of action for violation, misappropriation or infringement of any of the foregoing.

2.1.9. “Law” shall mean any law, ordinance, rule, regulation, order, license, permit, judgment, decision, or other requirement, now or hereafter in effect, of any governmental authority of competent jurisdiction, including without limitation the Consumer Protection Act 68 of 2008 and relevant South African National Regulatory of Compulsory Specifications requirements.

2.1.10. “Losses” shall mean any and all damages (including, without limitation, direct, consequential, economic, exemplary, future, incidental, indirect, non-economic, past, special, and punitive), sanctions, settlement payments, disbursements, judgments, liability, losses (including lost income or profit), costs or expenses of any nature whatsoever, whether accrued, absolute, contingent or otherwise, including, without limitation, attorneys’ fees and costs (whether or not suit is brought).

2.1.11. “Mall For Women” means Mall For Women (Pty) Ltd, registration number 2021/673626/07, a private company duly registered in accordance with the Laws of South Africa, and shall include its Affiliates.

2.1.12. “Mall For Women Site” means mallforwomen.com and applicable applications.

2.1.13. “Privacy Policy” means the Company’s Privacy Policy that governs the Tenant’s use of Customer information obtained in connection with the Tenant Program, and as may be published on the Mall For Women Site and/or Tenant Page from time to time.

2.1.14. “On-Time Shipping Standard” means the time specified for each order to be processed and delivered.

2.1.15. “Orders” means orders placed by a customer through the Mall For Women Site for the purchase of products.

2.1.16. “Party” or “Parties” means, individually, the Company or the Tenant as the context requires and, together, the Company or the Tenant.

2.1.17. “Payment Card” shall mean a debit or credit type card used for financial transactions.

2.1.18. “Payment Card Data” means any information located on a Payment Card, such as, but not limited to, debit or credit card number, expiration date, pin number, cardholder name, or cardholder address.

2.1.19. “PII” means any information that can be used to identify an individual and/or information that constitutes personal identifiable information.

2.1.20. “Products” means the products and/or services that the Tenant desires to sell on the Mall For Women Site, and approved by the Company, and as reflected on the Tenant Page.

2.1.21. “Product Information” means the product information that the Company requires.

2.1.22. “Public Promotions” means any public promotions generally available to all users of the Tenant Site.

2.1.23. “Sales Proceeds” means the gross sales proceeds from the sale of the Products, including VAT and excluding shipping.

2.1.24. “Service Level Agreement” means the service level agreement or SLA, that Tenants will be required to adhere to in order to provide the required service levels to and on behalf of the Company.

2.1.25. “Service Provider” means any third party that provides services for the Company and/or Tenant Program, including but not limited to management software, digital marketing, logistics, and business support.

2.1.26 “Tenant” means third-party vendor, distributor, wholesaler, retailer, and any other incorporated company wanting to sell approved products through the Mall For Women Site, and who has applied on the Mall For Women Site, been approved, and has agreed to the terms of this Agreement.

2.1.27 “Tenant Application” means the application the prospective tenant has completed and submitted to the Company, and it shall form part of this Agreement.

2.1.28. “Tenant Customer Information” shall mean customer information in Tenant’s possession that was not received from the Company as Transaction Information or in any other manner and was not obtained or received by Tenant in connection with this Agreement or Tenant’s rights and obligations under this Agreement.

2.1.29. “Tenant Marks” means Tenant’s name, trademarks, service marks, and logos.

2.1.30. “Tenant Page” shall mean the web-based tool or other web services or interfaces, provided by the Company and/or a Service Provider that Tenant and/or the Company can use to manage its settings, Content, and other information related to the Tenant Program, and including all associated product listing requirements.

2.1.31. “Tenant Program” means the Mall For Women Tenant Program and Subscriptions as outlined in Annexure A.

2.1.32. “Tenant Share” shall mean the Sale Proceeds collected from the sale of the Tenant’s Products less the logistics cost and the markup added by the Company for such Products, and shall be equivalent to the wholesale price as agreed with the Tenant.

2.1.33. “Tenant Site” means any website, social media platform, or physical location other than the Mall For Women Site, where a Tenant displays any information related to the Tenant or its products.

2.1.34. “Transaction Information” means the Customer’s Order information, including but not limited to the Customer’s name, email address, and shipping address.

3. THIRD-PARTY SERVICE PROVIDERS

3.1. Tenant acknowledges and agrees that:

3.1.1. The Company may contract a Service Provider to provide management software and services, digital marketing services, and others for the Tenant Program; and

3.1.2. Tenant may provide Content to the Company using the software and/or services of a Service Provider.

4. LICENSE OF TENANT’S CONTENT AND MARKS

4.1. Tenant hereby grants the Company, its Affiliates, and marketing partners, a non-exclusive, royalty-free, perpetual, irrevocable right and license to publish, use, reproduce, distribute, transmit, display, modify, create derivative works of and otherwise commercially exploit all Content (excluding the Tenant Marks) in connection with the sale of products through the Mall For Women Site and for the listing, advertising, marketing, and promotion of such products or the Tenant Program, including without limitation, through the Mall For Women Site, third party websites, e-mail, social media or any other medium. The Tenant agrees that the Company may permit users of the Mall For Women Site to share and post Content on their own social media outlets.

4.2. Tenant hereby grants the Company and its Affiliates and marketing partners a non-exclusive, royalty-free, non-transferable license to publish, use, reproduce, distribute, transmit, and display Tenant’s Marks during the term in connection with the Tenant Program.

5. PRODUCT INFORMATION AND OTHER CONTENT

5.1. Tenant will use the Tenant Page to list all the required Content, Pricing, and Available Inventory per unique product. The Tenant shall adhere to the minimum requirements as set out by the Company.  In addition, the Tenant will:

5.1.1. use commercially reasonable efforts to ensure the Tenant Page always has an accurate error-free available inventory count per product listed on the Tenant Page;

5.1.2. provide the Company through the Tenant Page or email with a weekly inventory for all Products;

5.1.3. provide the Company with all Content requested by the Company, including without limitation, the Product information as set forth in the Tenant Page;

5.1.4. only provide Content for Products that fit into the categories or parameters as set forth by the Company.

5.2. The Tenant will be held solely responsible for the accuracy of its Pricing, available Inventory, and all Content for Products and will be obliged to honor any order placed by a Customer through the Mall For Women Site as a result of the Content provided.

5.3. If Tenant is restricted from selling certain Products on the Mall For Women Site due to supplier brand restrictions or if Tenant is not an authorized re-seller for any Product, Tenant will withhold such Products from the assortment it provides the Company. Provided that if Tenant removes a Product from the Mall For Women Site due to brand restrictions or because Tenant is not an authorized re-seller it will promptly notify the Company in writing of such removal.  Upon the Company’s request, the Tenant will provide the Company with a list of all Products withheld from the Tenant Program (including why such Product is being withheld).

5.4. The Company will make commercially reasonable efforts to post updated Content provided by Tenant on a regular basis through its standard transmission process; provided that Tenant acknowledges that the Company will impose freezes on Content updates from time to time in connection with releases on the Mall For Women Site.

6. PRODUCT AUTHENTICITY AND SAFETY

6.1. The Tenant will receive all Products sold through the Tenant Program directly from the brand owner or from an authorized supplier of the brand owner, and the Tenant must be an authorized reseller of the Products that it does not manufacture or produce itself. The Tenant will maintain adequate processes and procedures for conducting diligence to ensure that Products are authentic, authorized for sale, and not stolen, counterfeit, illegal, or misbranded.  Upon the Company’s request, the Tenant will promptly provide the Company with:

6.1.1. certificates of authenticity (or similar documentation) for Products; and

6.1.2. documentation (e.g., email verification from the brand owner or supplier) showing that the Tenant is permitted to sell specific brands or Products through the Mall For Women Site and within the Republic of South Africa and the rest of the world.

6.2. The Tenant will comply with, and ensure that all Products comply with, all product safety, testing, and certification requirements under applicable Law, and all other Law.

7. PAYMENTS

7.1. An Order is deemed complete only once:

7.1.1. The Product has been delivered with a proof of delivery signed by the customer; and

7.2. the Company has made payment of the Tenant Share for Orders that Customers have paid for.

7.3. At the Company’s option, all payments to the Tenant’s bank account will be made by means of electronic fund transfer (EFT) or a similar method. If the Company concludes that Tenant’s actions and/or performance in connection with this Agreement may result in customer disputes, charge backs, or other claims, then the Company may, in its sole discretion, delay initiating any remittances and withhold any payments to be made or that are otherwise due to Tenant under this Agreement until such dispute is resolved.

7.4. The Tenant expressly acknowledges and accepts that payment of the Tenant Share by the Company shall at all times be subject to the Company having received the corresponding Sales Proceeds from the Customer. The Company shall have no liability to the Tenant, and the Tenant shall have no claim against the Company, for any failure by the Company to make payment of the Tenant Share in circumstances where the  Company has not received the corresponding Sales Proceeds from the Customer.

8. ORDERS STATUS UPDATE

8.1. Customers purchasing Products through the Mall For Women Site will place Orders using the Mall For Women Site checkout and payment gateway. The Company will collect all proceeds from such transactions.  The Company will make available to the Tenant all the Transaction Information that the Company has from the Customers via email.  If email is not available for any reason, the Company will send a text message, or use other suitable means, and then send an email when available to ensure that all order information is documented in writing.

8.2. Tenants need to manage all Orders via the Tenant Page and/or email. The Tenant is required to update the Order status for the duration of the Order and delivery process.

8.3. Tenants will only receive Orders that have been paid for in full and accepted by the Company.

8.4. The Tenant is obligated to update the Order status to “Accepted” (which means a confirmation by the Tenant that it has stock), via the Tenant Page or email within two (2) hours of receiving an Order during business hours.

8.5. The Tenant is obligated to update the Order status to “Ready for Collection” (which means the Order is picked, packed and ready for collection by the courier), via the Tenant Page or email within forty-eight (48) hours of receiving an Order, during business hours.

8.6. The Tenant is obligated to update the Order status to “Out with Courier” (which means the Tenant has handed the packed Order to the courier for delivery), via the Tenant Page or email within one (1) hour of handing the Order over to the courier, during business hours.

8.7. The Company will bear the risk of credit card fraud occurring in connection with any Order.

8.8. The Tenant shall bear the full risk in and to any valid cancellation of an Order by a Customer and expressly acknowledges that Customers may have additional rights against the Tenant as a result of the terms and conditions contained on the Mall For Women Site (if any).

8.9. Once the Company has transmitted an Order to the Tenant, the Tenant will, at its own expense, be solely responsible for, and bear all liability for, processing and updating all relevant statuses on the Tenant Page or via email, including the accurate picking and packing of all applicable orders, including without limitation, any ad hoc customer service requests from the Company.

8.10. If the Tenant cannot fulfill the entire quantity of a purchase order line in an Order, then the Tenant will (prior to acceptance) reject that purchase order line through the Tenant Page or via email, and thereafter fulfill all other lines in the Order and promptly notify the Company of such rejection. If the Order consists of one purchase order line and the Tenant cannot fulfill the entire quantity, then the Tenant will be expected to reject or cancel the entire Order and promptly notify the Company via email or the Tenant Page and will provide any additional information that may be required by the Company.

8.11. All packaging material needs to comply with the minimum packaging standards as set out in the South African Bureau of Standards. Under no circumstances should packaged Orders contain any Tenant marketing or other materials that are not included as standard with regard to the specific Product being sold.

8.12. Timing of Order transmission

8.12.1. The Mall For Women Site will accept multiple different payment methods from Customers. The Tenant acknowledges that not all payment methods are processed by the relevant merchant bank within the same day in which they were received, and as such the Tenant may only receive notification of an Order after the date of the Order.

8.12.2. The Tenant accepts that it shall be obliged to honor all Orders based on the price and availability available on the Tenant Page as of the date of Order, notwithstanding that the Tenant may have only been notified of the Order after the actual date of Order.

8.12.3. The Company will use all reasonable and commercially viable means to endeavor to keep such delays to a minimum.

8.13. Required Shipping Method

8.13.1. The Company undertakes to complete the shipping leg of an Order on the Tenant's behalf. The Company will make use of approved couriers to collect and distribute all Tenant Orders.

8.13.2. Tenant is obligated to complete the picking, packing, and confirmation to the Company in order for the “Ready for Collection” status to be achieved.

8.13.3. Tenants are obligated to make available all facilities as are necessary in order for the Company approved couriers to collect packaged Orders from a single Tenant warehouse or collection point. The Tenant accepts that it shall be liable for any delays and/or Losses that may be suffered by the Company as a result of the Tenant's failure in this regard.

8.14 Shipping Terms

8.14.1 The Tenant will ship each Product within the On-Time Shipping Standard after receipt of the Transaction Information from the Company. If the Tenant cannot meet the On-Time Ship Standard for any Product, it will provide the Company with email notification of such delay.

8.14.2. The Tenant will be fully liable for any fines, costs, or expenses incurred by the Company or by a third party resulting from any failure to satisfy the On-Time Ship Standard for any Product. The Tenant will indemnify and hold harmless the Company and its Affiliates and their officers, directors, employees, and agents for any losses, liabilities, fines, costs or expenses (including costs on an attorney and own client basis) resulting from such failure.  The Tenant will be solely liable for all costs related to any duplicate or inaccurate shipments based upon Tenant’s acts or omissions.

8.15. The Company will provide the Tenant with information on the status of Orders through the Tenant Page, email, or text message. Tenant will be solely responsible for reviewing and monitoring such information.  Within 48 (forty-eight) hours of receipt of the information, the Tenant shall provide the Company with written notice of any discrepancies between the information provided and the Tenant’s fulfilment of any Orders.  The Tenant is solely responsible for monitoring and responding to information provided by the Company pursuant to this Agreement.

9. CANCELLATIONS, RETURNS, AND REFUNDS

9.1. The Company shall process all Customer requests for cancellations, returns, refunds, and/or customer service price adjustments. The Tenant will stop and/or cancel any Order if requested by the Company; provided that if the Tenant has transferred Products to a courier, the Tenant will immediately notify the Company and use commercially reasonable efforts to stop and or cancel the delivery.

9.2. The Tenant expressly acknowledges and agrees that it shall at all times be bound by, and agrees to adhere to, the terms and conditions of the Mall For Women Return & Refund Policy as may be updated and amended from time to time at the sole discretion of the Company.

9.3. The Company retains the right to accept or reject all refund, return, and exchange requests by Customers. The Company will process all refunds, returns, and exchanges immediately upon confirmation from the Tenant, which confirmation shall be provided by the Tenant within twenty-four (24) hours from receipt of a request from the Company, failing which the Tenant will be deemed to have provided its confirmation.

9.4. Refunds, returns, and exchanges will be determined via the Mall For Women Return & Refund Policy. Tenant will be responsible for all exchanges and replacements, where applicable.

9.5. A Customer may return or cancel any Order for a Product sold through the Mall For Women Site at any time within, and in accordance with, the Mall For Women Return & Refund Policy. The Tenant is obligated to accept any return or cancellation that meets the return policy as stipulated in the Mall For Women Return & Refund Policy or on the Mall For Women Site.  The Company will use all reasonable and commercially viable means to endeavor to keep such returns and cancellations to a minimum.

9.6. The Company will be responsible for all applicable reverse logistics costs incurred in ensuring that the Product is collected from the Customer and returned to the Tenant.

9.7. The ultimate decision on whether or not to refund a Customer will always lie with the Company.

9.8. Tenants are obligated to facilitate all warranty claims made within sixty (60) days of purchase date by the Customer, or within the warranty period provided by the applicable Original Equipment Manufacturer and attached to the Product.

10. PARITY WITH TENANT SALES CHANNELS

10.1. The Tenant will maintain parity between the Products it offers through the Tenant Site and the Products offered on the Mall For Women Site by ensuring that at all times:

10.1.1. customer service for the Products is at least as responsive and available and offers at least the same level of support as the most favorable customer service offered in connection with the Tenant Site; and

10.1.2. the Content provided by the Tenant to the Company for the Mall For Women Site:

10.1.2.1 .is of least the same level of quality as the highest quality information displayed or used on the Tenant Site; and

10.1.2.2. provides users of the Mall For Women Site with at least as much product information, images, and other content as the information provided on the Tenant Site.

10.2. If Tenant becomes aware of any non-compliance with 10.1 above, Tenant will promptly notify the Company, and the Company will take the necessary steps to ensure compliance.

11. RECALLS AND DEFECTS

11.1. The Tenant is solely responsible for any non-conformity or defect in, or any public or private recall of Tenant’s Products. The Company will have no responsibility or liability for any recalls of Products sold through the Mall For Women Site.   If Products are subject to a recall, the Tenant is responsible for all matters, costs, and expenses associated with such recall, including without limitation, notices and refunds to Customers, contact and reporting of the recall to any governmental agency having jurisdiction over the affected Products, and compliance with all applicable Law with respect to such recall.

11.2. Tenant will notify the Company by e-mail at sales@mallforwomen.com of all Product recalls within twenty-four (24) hours of becoming aware of the recall.  Tenant will promptly remove any recalled Products from the Mall For Women Site by unpublishing or retiring the Product through the Tenant Page or via email to the Company.  Tenant will promptly provide the Company with all information reasonably requested in connection with the recall of any Product.

12. CONTACT WITH CUSTOMERS AND CUSTOMER SERVICE ESCALATION

12.1. The Company will be responsible for providing 1st line of support for Customers;

12.2. Where the Company is unable to resolve a Customer support query, the Company will escalate the support query to the Tenant for 2^nd line support and resolution.

12.2.1. The Tenant will always represent itself as a separate entity from the Company when providing customer service for its Products sold through the Mall For Women Site.

12.2.2. For the sake of clarity, the Tenant shall not be entitled to contact the Customer directly under any circumstances without having first obtained the Company’s prior written consent.

12.3. Neither Party will disparage the other party or its affiliates or its or their products or services when performing obligations under this Agreement.

13. TENANT SYSTEMS AND SERVICE LEVELS

13.1. The Tenant shall be solely responsible for the adequate maintenance and up-time of all Tenant systems that are necessary for the Tenant to fulfill by and meet its obligations of this Agreement.

13.2. The Tenant shall notify the Company within one (1) business hour, of any down-time or related system issues, that may or will have an impact on the Tenants ability to fulfill Orders or otherwise meet its obligations on terms of this Agreement.

13.3. The Tenant will comply with any service levels prescribed by the Company from time to time, in connection with Tenant’s systems that, directly or indirectly, impacts the Company’s systems or the Tenant Program; and

13.4. The Tenant shall at all times comply with the Order and Customer Service Level Agreement, attached hereto as Annexure C.

14. REPORTING AND AUDITS

14.1. The Tenant will, within a reasonable period of time, not to exceed thirty (30) days, following request from the Company, make commercially reasonable efforts to provide the Company with any reports, information or other documentation relating to the Tenant’s compliance with this Agreement and applicable Law reasonably requested by the Company; provided, however, that in the event the Company requests that the Tenant provide the Company with copies of reports that the Tenant was required to file with any regulatory agency, the Tenant will provide such reports within seven (7) days of the Company's written request.

14.2. The Tenant will keep accurate and complete books, records and accounts related to Tenant Program transactions and this Agreement, and will allow the Company, or its duly authorized representative, the right, upon not less than five (5) business days prior written notice, during the Term of this Agreement and for two (2) years after its termination or expiration, to conduct, during regular business hours, full and independent audits and investigations of all information, books, records and accounts reasonably required by the Company to confirm Tenant’s compliance with the terms of this Agreement and applicable Law.

14.3. Upon the Company’s request, the Tenant will provide the Company with written certification from an officer of the Tenant stating that the Tenant has complied with any of the Tenant’s obligations under this Agreement, including, for example and without limitation, compliance with SLAs, consumer product safety laws, authenticity of Products, or restrictions on use of Transaction Information.

15. REPRESENTATIONS AND WARRANTIES

15.1. Each Party hereby represents and warrants to the other Party the following: Authority

15.2. The Party is a duly organized, validly existing and in good standing under the laws of the state where such Party was organized and the Party has full power and authority to execute and deliver this Agreement and to perform its obligations hereunder without any further ratification or approval. This Agreement constitutes the legal, valid and binding obligations of the Party.

No Conflicts

15.3. Neither the execution and delivery of this Agreement by the Party nor the consummation of the transactions contemplated hereby will violate or conflict with any obligation, contract or license of such Party which could reasonably be expected to interfere with the consummation of the transactions contemplated hereby.

15.4. The Tenant hereby represents and warrants to the Company the following:

15.4.1. The Tenant has the right, power and authority to grant the rights and licenses hereunder free and clear of any claims, liens, and encumbrances and to sell the Products.

15.4.2. The Tenant and all of its employees, subcontractors, agents, and suppliers will comply with all applicable Laws, as may be amended from time to time, in performing any of its obligations or exercising any of its rights under or related to this Agreement. All Products (including all packaging) and Content will comply with applicable Law. The production, manufacturing, offer, sale, shipping, and delivery of all Products will comply with all applicable Laws. Products will not be produced or manufactured by child labor or convict or forced labor.

15.4.3. The Tenant’s principal place of business is in the country where its business is registered and the Tenant will not conduct any operations relating to this Agreement from outside the country.

Content

15.4.4. All Content will be truthful and accurate. Content will not:

 15.4.4.1. be misleading or deceptive

15.4.4.2. be defamatory, libelous, threatening or harassing;

15.4.4.3. infringe upon or violate any Intellectual Property Rights or other right of any third party;

15.4.4.4. promote or depict gratuitous violence, the abuse of alcohol, use of tobacco or illegal substances or adult-oriented content; or

15.4.4.5. reflect unfavorably on the Company, its Affiliates, or the Mall For Women Site or be the type of content that could otherwise reasonably adversely impact or damage the reputation or public image of the Company or its Affiliates. The Tenant will not use the Content to redirect the Company Customers to any other sales channels.

Products

15.4.5. The Tenant will only offer Products for sale on the Mall For Women Site that may be sold and shipped throughout South Africa and the rest of the world. The Tenant will not offer for sale any Products through the Mall For Women Site that the Company indicates as prohibited, including without limitation, the Prohibited Products attached hereto as Annexure B.  The list of Prohibited Products may be updated by the Company from time to time and the Company will notify the Tenant of such updates by email and/or through the Tenant Page.

15.4.6. All Tenant personnel will be properly registered, documented, licensed and/or certified in accordance with applicable Law.

Ongoing Warranties

15.4.7. Except as otherwise expressly provided herein, the representations and warranties made in this Agreement are continuous in nature and will be deemed to have been given by the Tenant at the execution of this Agreement and each stage of performance of this Agreement.

16. CONTROL OF MALL FOR WOMEN SITE

 16.1. The Company has the sole right to determine the content, appearance, design, functionality and all other aspects of the Mall For Women Site, including, without limitation, all content provided in connection with the sale of Products sold by the Tenant through the Mall For Women Site. The Company intends to use one set of content for each item sold through the Mall For Women Site.  The Company may suspend any Product listing or display of Content or refuse to list any Products in its sole discretion and the Company may require the Tenant to exclude any Products from the Mall For Women Site.  If the Company requests that Tenant remove Products from the Mall For Women Site, the Tenant will make commercially reasonable efforts to remove those Products by unpublishing or retiring such Products through the Tenant Page or email within twenty-four (24) hours of such request so such Products no longer appear for sale on the Mall For Women Site and the Tenant will not include such removed Products on the Mall For Women Site at any time unless the inclusion of such Products is specifically authorized by the Company in writing.  The Company will have sole control of any marketing of:

16.1.1. any products on the Mall For Women Site, including without limitation, the Tenant’s Products; and the Tenant Program.

17. OWNERSHIP AND USE OF TRANSACTION INFORMATION

17.1. The Company will own all Transaction Information. The Tenant may only use Transaction Information to further a transaction related to this Agreement, in accordance with the terms of the Agreement, the Mall For Women Privacy Policy and applicable Law.  The Tenant will not:

17.1.1. disclose or convey any Transaction Information to any third party (except as necessary for the Tenant to perform its obligations under the Agreement);

17.1.2. use any Transaction Information to conduct customer surveys or for any marketing or promotional purposes;

17.1.3. contact a Customer that has ordered a Product that has not yet been delivered with the intent to collect any amounts in connection therewith or to influence such Customer to make an alternative or additional purchase; or

17.1.4. target communications of any kind on the basis of the intended recipient being a Mall For Women user.

18. RATINGS AND REVIEWS

18.1. The Company may use mechanisms that rate or review, or allow shoppers to rate or review the Tenant’s Products and the Tenant’s performance as a Tenant and the Company may make these ratings publicly available. The Company will have no liability to the Tenant for the content or accuracy of any ratings or reviews.  The Tenant will have no ownership interest in or license to use any rating or reviews posted on the Mall For Women Site.

19. SUGGESTIONS AND FEEDBACK

19.1. If the Tenant or any of the Tenant’s Affiliates or agents elect to provide or make available suggestions, comments, ideas, improvements, or other feedback or materials to the Company in connection with or related to any Mall For Women Site or The Tenant Program (including any related technology), the Company will be free to use, disclose, reproduce, modify, license, transfer and otherwise distribute, and exploit any of the foregoing information or materials in any manner. In order to protect the Company’s systems and customers, or to ensure the integrity and operation of the Company’s business and systems, the Company may access and disclose any information the Company considers necessary or appropriate, including but not limited to user contact details, IP addresses and traffic information, usage history, and posted content.

20. CONFIDENTIAL INFORMATION AND INFORMATION SECURITY

20.1. Both Parties acknowledge that either Party may receive (the “Receiving Party”) Confidential Information from the other Party (the “Disclosing Party”) during the term of this Agreement, and such Confidential Information will be deemed to have been received in confidence and will be used only for purposes of this Agreement. The Receiving Party will:

20.1.1. use the Disclosing Party’s Confidential Information only to perform its obligations and exercise rights under this Agreement; and

20.1.2. disclose the Disclosing Party’s Confidential Information only to the Receiving Party’s personnel, contractors and affiliates that:

20.1.2.1. have a need to know the information to assist the Receiving Party with fulfilling obligations under this Agreement; and

20.1.2.2. have agreed to keep the information confidential in accordance with the terms set forth herein.

20.2. The Receiving Party will treat the Confidential Information as it does its own valuable and sensitive information of a similar nature and, in any event, with not less than a reasonable degree of care. The obligation of confidentiality will continue for three (3) years from the expiration or termination of this Agreement; provided, however, the Receiving Party will continue to keep confidential:

20.2.1. any PII at all times and as required by this Agreement and any applicable Law;

20.2.2.any trade secrets of the Disclosing Party; and

20.2.3. the terms of this Agreement.

20.3. The Tenant agrees that the Company may share the Tenant’s Confidential Information with its Affiliates for internal use only.

20.4. The obligations of either Party under this Section will not apply to information that the Receiving Party can demonstrate:

20.4.1. was in its possession at the time of disclosure and without restriction as to confidentiality;

20.4.2. at the time of disclosure is generally available to the public or after disclosure becomes generally available to the public through no breach of agreement or other wrongful act or failure to act by the Receiving Party; provided, however, PII remains subject to confidentiality obligations regardless of its availability to the public or availability through unauthorized disclosure;

20.4.3. has been received from a third party without restriction on disclosure and without breach of agreement or other wrongful act by such third party or the Receiving Party; or

20.4.4. is independently developed by the Receiving Party without access to or use of the Confidential Information of the Disclosing Party.

20.5. In the event the Receiving Party is required by Law, stock exchange requirement or legal process to disclose any of the Confidential Information, the Receiving Party agrees to:

20.5.1. give the Disclosing Party, to the extent possible, advance notice prior to disclosure; and

20.5.2. limit the disclosure to minimum amount that is legally required to be disclosed.

21. TERM AND TERMINATION

Term

21.1. This Agreement will commence on the Effective Date, and shall continue to apply for twelve (12) months (initial term) plus extensions. Should the Tenant not confirm to the Company in writing thirty (30) days prior to end of the initial term, this Agreement shall be extended for a further term until such time that it is terminated.

Termination for Convenience or Rejection

21.2. Either Party may terminate this Agreement for any reason by giving thirty (30) days prior written notice to the other Party.

21.3. If the Tenant’s Application is declined by the Company, this Agreement shall terminate with immediate effect.

Post-Termination Obligations

21.4. The Tenant will continue to have obligations under this Agreement after termination of the Agreement, including without limitation, the obligation to:

21.4.1. Fulfil all Orders that have been accepted but not yet delivered;

21.4.2. provide customer service to Customers who purchased Products on the Mall For Women Site;

21.4.3. pay any invoices delivered by the Company in connection with the Agreement;

21.4.4. notify the Company and Customers of any recalls of its Products;

21.4.5. remit any taxes collected to the proper jurisdiction(s); and

21.4.6. immediately notify the Company of any security breach that allows a third party to view or access or otherwise compromises any Transaction Information.

21.5. The Company will pay the Tenant the Tenant Share attributable to Orders placed by Customers prior to the termination of the Agreement in accordance with the payment terms set forth in this Agreement.

21.6. The provisions of this Agreement which by their nature are intended to survive termination of the Agreement will survive its termination.

22. INDEMNIFICATION

22.1. The Tenant will defend, indemnify and hold harmless the Company and its Affiliates and each of their respective stockholders, successors, assigns, officers, directors, employees, agents, representatives (each an “Indemnitee”) from and against any and all Losses arising out of or related to any third-party Claims asserted against, imposed upon or incurred by an Indemnitee due to, arising out of or relating to:

22.1.1. an actual or alleged breach by the Tenant of this Agreement;

22.1.2. the Tenant Site and other sales channels, the Content or the Products (including, without limitation, the offer, sale, refund, or return of Products) or any violation of Law with respect to the foregoing (including but not limited to the Consumer Protection Act, 2008), or any actual or alleged infringement of any Intellectual Property Right by any of the foregoing, or personal injury, death or property damage related thereto or arising therefrom; and

22.1.3. any and all income, sales, use, ad valorem, and other taxes, surcharges, fees, assessments or charges of any kind whatever, together with any interest, penalties and other additions with respect thereto, imposed by any national, provincial, local or foreign government in any way related to the sale of the Products on the Mall For Women Site, specifically excluding, however, any such taxes related to the Company’s net income.

22.2. Upon receipt of notice, from whatever source, of Claims against the Company for which the Tenant is obligated to indemnify the Company, the Tenant immediately will take necessary and appropriate action to protect the Company’s interests with regard to the Claims. The Company will notify the Tenant of the assertion, filing or service of any Claims of which the Company has knowledge, as soon as is reasonably practicable.  The Tenant will use counsel reasonably satisfactory to the Company to defend each Claim.

22.3. Notwithstanding the foregoing, however, if the Company reasonably determines that there may be a conflict between its position and that of the Tenant in connection with the defense of a Claim or that there may be legal defenses available to the Company different from or in addition to those available to Tenant, then, at Tenant’s expense, counsel for the Company will be entitled to conduct a defense to the extent the Company reasonably determines necessary to protect the interest of the Company. If the Company, in its sole discretion, determines that the counsel provided by the Tenant to defend the Company is unacceptable or that a conflict of interest exists between the Company and counsel, the Company may request that the Tenant replace the counsel.  If the Tenant fails to timely replace counsel, the Company may replace the counsel and, as part of the Tenant’s indemnification obligation to the Company, the Tenant will pay to the new counsel, or reimburse the Company, any and all fees and expenses as to the new counsel, including any and all expenses or costs to change counsel.

22.4. The Tenant, in the defense of any Claim, will not, except with the prior written consent of the Company, consent to entry of any judgment or enter into any settlement with respect to such Claim.

23. WARRANTY DISCLAIMER

23.1. Neither the Company, nor its affiliates, officers, directors, licensors, suppliers, employees or agents make any representations or warranties, express or implied, that the Mall For Women Site, the Tenant Program, any Tenant Page, services provided by the Company or any service provider, or software used to provide the services will be uninterrupted, timely, secure, virus-free or error-free, and the Tenant agrees that the Company will not be liable for the consequences of any interruptions or errors, including without limitation, system or software failures or other interruptions that may affect the receipt, processing, acceptance, completion or settlement of any transactions. Neither the Company, nor its affiliates, officers, directors, licensors, suppliers, employees or agents make any representations or warranties, express or implied, to the Tenant with respect to the sale of the Tenant’s products through the Mall For Women Site pursuant to this agreement, and all such services provided by the Company are provided on an “as-is” and “as available” basis.

23.2. The Company and its affiliates, employees, directors, officers, agents, licensors and suppliers expressly disclaim all warranties of any kind, whether express, implied, statutory or otherwise, including, without limitation, the implied warranties of merchantability, fitness for a particular purpose, title and non-infringement of proprietary rights and those implied warranties arising out of course of performance, course of dealing or usage of trade.

24. LIMITATION OF LIABILITY

24.1. In no event shall the Company be liable to the Tenant or any third party under any theory of tort, contract, strict liability or other legal or equitable theory for:

24.1.1. Lost profits, lost revenue, loss of business or loss of data;

24.1.2. Exemplary, punitive, special, incidental, indirect or consequential damages or the like; or

24.1.3. For cost of cover, recovery or recoupment of any investment, each of which is hereby excluded by agreement of the parties regardless of whether such damages were foreseeable or whether the Company has been advised of the possibility of such damages.

25. INSURANCE, RISK, AND OWNERSHIP

25.1. The Tenant will maintain, at the Tenant’s expense, commercial general, umbrella and/or excess liability in the aggregate covering liabilities caused by or occurring in connection with this Agreement or the Tenant’s business (including without limitation, product, completed operations, hijacking, overturning and bodily injury), or as otherwise required by the Company from time to time.

25.2. The Tenant acknowledges that it shall retain all risk in and to the Products until the Products have been delivered with a proof of delivery signed by the Customer. Ownership in and to the Products shall pass to the Customer when the Products have been delivered with a proof of delivery signed by the Customer.

26. CHOICE OF LAW, JURISDICTION AND VENUE

26.1. The Parties mutually acknowledge and agree that this Agreement will be construed and enforced in accordance with the Laws of the Republic of South Africa and without regard to any conflict of law provisions. The Parties agree that in any dispute arising from or related to this Agreement, shall be subject to the exclusive jurisdiction of the South Gauteng High Court, Johannesburg. The Parties mutually acknowledge and agree that they will not raise in connection therewith, and hereby waive, any defenses based upon venue, inconvenience of forum or lack of personal jurisdiction in any action or suit brought in accordance with the foregoing. The Parties acknowledge that they have read and understand this Section and agree voluntarily to its terms.

27. GENERAL

27.1. Assignment. The Tenant may not assign (including, without limitation, by way of merger, consolidation or sale of all or substantially all of the Tenant’s stock or assets) this Agreement, or any of its respective rights or obligations hereunder, without the prior written consent of the Company.  Subject to the foregoing, this Agreement will be binding upon, and will inure to the benefit of, the Parties and their respective successors and permitted assigns.  Any assignment or assumption without the Company’s prior written consent will be null and void.

27.2. Integrated Agreement. This Agreement, including all Annexures and policies referenced herein, constitutes the complete integrated agreement between the Parties concerning the subject matter hereof. All prior and contemporaneous agreements, understandings, negotiations or representations, whether oral or in writing, relating to the subject matter of this Agreement are superseded in their entirety.

27.3. Amendments. No amendments to this Agreement shall have any force or effect unless they are agreed between the Parties in writing and signed by both Parties.

27.4. Waiver. No waiver of any of the provisions of this Agreement will constitute a continuing waiver unless otherwise expressly so provided in writing. The failure of either Party to enforce at any time any of the provisions of this Agreement will in no way be construed to be a present or future waiver of such provisions.

27.5. Severability. If any provision of this Agreement is found by a court to be invalid, void or unenforceable, the Parties agree that the remaining provisions of this Agreement will not be affected thereby, and that this Agreement will in any event otherwise remain valid and enforceable.

27.6. Independent Contractors. The Company and the Tenant are acting hereunder as independent contractors.  The Tenant will not be considered or deemed to be an agent, employee, joint venture or partner of the Company.  The Tenant’s personnel will not be considered employees of the Company, will not be entitled to any benefits that the Company grants its employees and will have no authority to act or purport to act on the Company’s behalf.  If any national, provincial or local government agency, any court or any other applicable entity determines that any such personnel of the Tenant is an employee of the Company for any purpose, the Tenant will indemnify, defend and hold harmless the Company, its Affiliates, officers, directors, employees and agents from all liabilities, costs and expenses (including, but not limited to, reasonable attorneys’ fees) associated with such determination.  The Tenant will remain primarily liable for the Tenant’s obligations performed by any third party and for any act or omission of any such third party.

27.7. Publicity. Except as specifically provided herein, neither Party will use the name, logo, trademarks or trade names of the other Party or otherwise, directly or indirectly, refer to the other party in publicity releases, promotional material, customer lists, advertising, marketing or business generating efforts, whether written or oral, without obtaining such Party’s prior written consent.  Notwithstanding the foregoing, the Company will have the right to refer to the Tenant as a participant in the Tenant Program in marketing and promoting the Tenant Program.

27.8. Nonexclusive. Each Party acknowledges and agrees that the rights granted to the other Party in this Agreement are nonexclusive and that without limiting the generality of the foregoing, nothing in this Agreement will be deemed or construed to prohibit either Party from participating in similar business arrangements as those described herein.

27.9. Force Majeure. Notwithstanding the other provisions of this Agreement, if either Party is in good faith prevented from performing its obligations under this Agreement because of an unexpected extraordinary event beyond the control of the Party concerned, including without limitation, war (declared or undeclared), acts of God, terrorism, earthquake, accident, explosion, fire or flood, such Party will promptly notify the other Party, and while so affected, the affected Party will be relieved from performing its obligations provided that, the Party affected will take all reasonable steps to promptly remedy the cause of such delay or failure if it is in its power to do so.

27.10. Tenant Page. The Tenant is solely responsible for maintaining the security of its password for any Tenant Page and for all action taken in connection with its account.  If the Tenant has knowledge or suspects that its password has been compromised, the Tenant will immediately notify the Company and fully cooperate with the Company in investigating and preventing any further breach to the Company’s systems.  The Company shall not be liable to the Tenant for any Losses it may suffer as a result of the Tenant Page being unavailable for any reason.

28. DOMICILLIUM CITANDI ET EXECUTANDI

28.1. The parties choose their domicilia citandi et executandi for all purposes under this agreement, whether in respect of court process, notices or other documents or communications of whatsoever nature, the following addresses:

28.1.1. Tenant

Physical: as provided in the Tenant’s application.

Email & Cell Number: as provided in the Tenant’s application.

28.1.2. Mall For Women

Physical: 1 Century Boulevard, The Parks Lifestyle Apartments 15-1H, Riversands 2191, Johannesburg, South Africa

Email &Office Number: info@mallforwomen.com& 011 4313838

28.2. Any Party shall be entitled by notice in writing to the other Party to change its domicilium as set out above.

28.3. Any notice which may be required to be given to a Party to this agreement shall be sent to such Party’s address as set out above, or duly altered from time to time, and shall

28.3.1. be delivered by hand, email, and telefax, in which event it shall be deemed to have been received on the day of delivery; or

28.3.2. be sent by prepaid registered post, in which event it shall be deemed to have been received on the fifth business day after posting.

29. LEGAL COSTS

29.1. All parties shall be responsible for their own legal costs should any legal costs be incurred in the course of reviewing this Agreement.

 

ANNEXURE A

TENANT PROGRAM, ADMIN FEE& SUBSCRIPTION

The Tenant’s Application shall form part of Annexure A.  Once the Company and the Tenant agree on the appropriate Plan, the Tenant will start that Plan as per Paragraph 5 below.  There are three (3) Plans:

1. Entry Tenant is geared for start-up businesses with the following features:

1.1. Features

2. Key Tenant is geared for established businesses with the following features:

2.1. Features

2.1.1.  5 – 9 product listings

2.1.2.  Limited variants

2.1.3.  Social media marketing

2.1.4. Search Engine Optimization

2.1.5. Integrated logistics

2.1.6. Access to funding

2.1.7. Business support

2.2. Monthly subscription payable by the Tenant for this Plan is sixty-five United States Dollars ($65).

3. Tenant is geared for businesses in expansion with the following features:

 3.1. Features

3.1.1.  10+ product listings

3.1.2.  Unlimited variants

3.1.3.  Enhanced social media marketing

3.1.4.  Search Engine Optimization

3.1.5.  Google Ads

3.1.6.  Integrated logistics

3.1.7.  Export opportunities

3.1.8.  Access to funding

3.1.9.  Business support

3.2. Monthly subscription payable by the Tenant for this Plan is one hundred twenty United States Dollars ($120).

4. The Tenant is required to pay the non-refundable Admin Fee via the Mall For Women Site upon submission of its Tenant Application. Failure to do so may result in the Tenant’s Application being rejected by the Company.  If the Tenant Application is rejected for this reason and the prospective tenant still wants to become a Tenant, they will have to reapply and pay the Admin Fee again.

5. The Tenant is required to purchase the Tenant Subscription from the Mall For Women Site within twenty-four (24) hours of Tenant Application approval by the Company. Failure to do so will constitute a material breach of this Agreement, and the Company shall be entitled to cancel the Agreement and claim any damages or losses it might have incurred.

ANNEXURE B

LIST OF PROHIBITED PRODUCTS

“Prohibited Products” means:

1. cigars, cigarettes, or other tobacco products;

2. guns intended to provide lethal force (and related gun parts, kits and ammunition); mace, black powder and other explosives; disguised, undetectable or switchblade knives; martial arts weapons; or BB guns, stun guns, paintball guns, or airsoft guns;

3. any drug, vitamin, herbal product or similar substance which requires a doctor’s or other health care provider’s prescription as a prerequisite for purchase;

4. used, remanufactured, reconditioned or refurbished products;

5. stolen, counterfeit, misbranded or illegal products;

6. products that have been recalled;

7. products that violate applicable Law;

8. products that violate or infringe upon any Intellectual Property Right or other third party right;

9. products that contain material that is obscene, pornographic or offensive;

10. products containing viruses, Trojan horse, spyware or malicious code;

11. ‘sex and sensuality’ products;

12. loose gemstone products;

13. any product for which Tenant is not an “authorized re-seller” (as designated by the product’s manufacturer or distributor), or does not provide to Customers the manufacturer’s standard warranty there for;

14. products containing human growth hormone;

15. any age restricted products;

16. baby bottles that are not BPA-free;

17. prepaid access products (whether issued in the form of a card, electronic PIN or other device) that provide access to funds (or the value of funds) that have been paid in advance and can be retrieved in the future, including without limitation, gift cards, prepaid phones, or prepaid minutes;

18. caskets or funeral urns;

19. specific products or brand names that may not be sold on the Mall For Women Site as are indicated by the Company to the Tenant separately in writing (which in this case may include email or through any Tenant Page); and

 

20. any other types of products that in the Company’s discretion are not appropriate for sale on the Mall For Women Site as indicated by the Company to the Tenant separately in writing; provided that a Prohibited Product will cease to be a Prohibited Product when the Company informs the Tenant of such change.

ANNEXURE C

ORDER AND CUSTOMER SERVICE LEVEL AGREEMENT

The Company is committed to customer service.  Tenants participating in the Tenant Program will endeavor to meet the following service levels:

1. The Tenant will maintain an On-Time Ship Standard of at least ninety nine percent (99%).

2. The Tenant will ensure that the correct Product is delivered to the correct Customer at a rate of ninety nine point five percent (99.5%) of all Products shipped.

3. The Tenant will maintain inventory to fulfill Customer Orders that result in a cancel rate (excluding Customer requested cancellations) of one point five percent (1.5%) or less;

4. Returns due to damaged or defective Products shall not exceed three percent (3%) of Sales Proceeds for Products sold on the Mall For Women Site.

5. The Tenant shall limit emergency updates related to product information on any Tenant Page to a rate no greater than zero point zero three percent (0.03%) of its entire SKU count in the Company’s catalogue per month; provided however, that the Company makes no guarantee that all requests will be granted. The Company will assess each emergency request on a case-by-case basis and make updates in situations the Company deems critical.

6. Tenant ratings shall, on average, remain above a rating of ninety percent (90%) positive.

7. Ninety percent (90%) of emails received from the Company shall be answered by the Tenant within twenty-four (24) hours of receipt, except as might be required by Paragraph 8 “ORDER STATUS UPDATE” above.

The Company may, at its discretion, work with a Tenant to remedy any failure of a service level or performance issue under this Annexure C; provided, however, that no waiver by the Company of any provision of this Annexure C may be deemed or constitute a waiver of any provision of this Agreement, whether or not similar, nor may the waiver constitute a continuing waiver by the Company unless otherwise expressly so provided in writing.  The failure of the Company to require at any time performance by the Tenant of any of the provisions herein, may in no way be construed to be a present or future waiver of provisions or in any way affect the ability of the Company to enforce each and every provision after such event.