GENERAL TERMS AND CONDITIONS (LAZADA SPONSORED SOLUTIONS)

(Version effective from 30 October 2023)

Part A: Introduction

A.       These terms and conditions represent a binding agreement (“Agreement”) between yourselves (“you” or “your”) and the Lazada offering entity defined in the Local Addendum in relation to the specific services (“Services”), and/or its designated affiliates (“Affiliate”). Lazada entity and/or its Affiliate hereinafter referred to as “Lazada”, “we”, “our”, or “ours”.

B.       By signifying your assent to this Agreement or by using the Services as set out in Part D of this Agreement, you represent that you have full power, capacity and authority to enter into and perform your obligations under the Agreement, and you agree to be bound by this Agreement.  

C.       Lazada may, through any account which you have created with Lazada or been granted access to for purposes of the Services on the Portal, the Platform or any other means, notify you of any changes to this Agreement or any Policies, which shall take effect immediately (unless otherwise specified in this Agreement) upon the notification. You may, within 7 days of any notification of a change to this Agreement or Policies, terminate this Agreement by written notice to Lazada if you do not agree with such changes. You understand, acknowledge and agree that continued use of any of the Portals or the Services constitutes your agreement to any changes. 

D.       These terms and conditions are subject to the Policies and the specific terms of any Sales Order or invoices (if applicable), which may have been issued to you by Lazada, and which are incorporated by reference to this Agreement. In the event of any conflict or inconsistency, the provisions of the Sales Order shall prevail over these General Terms and Conditions.

Part B: Services

1.       Sponsored Solutions Services

a.       You may request Lazada to provide, and/or procure that its Affiliates provide to you, the Services for the improvement of Buyer traffic to a Seller’s store(“Shop”) or product display pages of a Seller’s Products (“PDP”) on the Platform  whether or not you are the Seller on record.

b.       The Services will be offered by Lazada to you, and requested by you, through any of the Portals or any other means mutually agreed in writing between you and Lazada. Notwithstanding that this Agreement has been entered into with Lazada, you acknowledge and accepts that Lazada may exercise its rights and perform its obligations under this Agreement either directly or through one or more of its designated Affiliates.

c.        Lazada has no obligation to provide any Services unless Lazada gives you written confirmation that the request for such Services is accepted.

d.       Lazada may at any time and without penalty, cancel or amend any confirmed Services.

e.       This Agreement does not place any obligation on you to purchase any Services from Lazada.

f.        All Services are subject to any specific terms and conditions of each Service as set out in any of the Portals or any agreement or Policies relating to that Service. 

2.       Responsibilities

a.       You will only use the Services in a manner which complies with the Policies, all laws and regulations, and will not harm the goodwill of Lazada and Lazada’s Affiliates.

b.       You will cooperate with Lazada in all aspects relating to the Services, including:

i.        complying with any requirements set out in any of the Portals or the Policies for the use of the Services;

ii.       creating and producing materials, including content and promotional materials, which may be used in the provision of the Services;

iii.       providing any other material reasonably requested by Lazada for the provision of the Services; and

iv.      providing feedback on the Services when reasonably requested by Lazada.

c.       At any point in time, should Lazada deem you to be ineligible for any Services according to any of the Policies including but not limited to the Lazada Sponsored Solutions Policy set out at the link provided in the Local Addendum. Lazada reserves the right to refuse or delay performance of any Services ordered by you until such time as Lazada determines you to be eligible again.

d.       If the performance of the Services is prevented or delayed due to your or the relevant Seller’s act or omission, Lazada is entitled to stop provision of the Services with no penalty, and to recover any costs or losses incurred due to such prevention or delay.

e.       You will only allow your duly authorised users to access your account in any of the Portals and/or use the Services. Where you authorise a third-party to request for Services on your behalf, you acknowledge that you are responsible for all actions of such third-party, and you remain primarily liable for all obligations under this Agreement and any Services requested, which may also include payment obligations.

f.        You will not use any automated means, form of scraping, or other data extraction methods to access, query, collect, or use any information from any of the Portals or the Platform.

g.       Where Lazada makes any suggestions to you in relation to the Services including the mode of using the Services, you agree to comply with all respective terms and/or policies including but not limited to the related AI Services terms published on the Platform or communicated to you by Lazada from time to time which shall be incorporated hereto by reference and you acknowledge that those suggestions:

i.        are not made with any particular expertise or consideration of your aims or business;

ii.       do not constitute advice or recommendations to you; and

iii.       that Lazada has no responsibility to you or any other third parties regarding any results of such suggestions.

3.       Payment Model

a.       The fees for the Services may either be on a Per-Click Basis, Conversion Basis, Per-Package/Asset Basis, Per-Mille Basis, Per-Day Basis, or Store-Wide Basis, as may be specified to you on the relevant Portal(s) and in this Agreement.

b.       Budget. Where an option to set a budget is provided, you may, via any of the Portals, or any other means mutually agreed in writing between you and Lazada, set a maximum amount (“Budget”) payable by you for each calendar month (or such other time period set out in the relevant Portal) (“Budget Period”).

c.       Threshold. Upon reaching the Budget, Lazada will, within a reasonable time, cease provision of the Services for the rest of the Budget Period. You will be charged fees for all Services provided up to the time Lazada ceases provision, and the amount charged for that Budget Period should not exceed 110% of the Budget or any other mutually agreed threshold (“Threshold”). In the event that the amount charged to Seller under Clause 3(b) exceeds the Threshold, Lazada will refund such excess amount back into the Account in accordance with its refund cycle, unless the excess amount was incurred due to intentional acts or omissions carried out on the part of or on behalf of the Seller in which case Lazada reserves the right not to make the refund back into the Account. For the avoidance of doubt, the question of whether an act or omission was intentional on the part of or on behalf of the Seller shall be determined in Lazada’s sole discretion.

Per-Click Basis

d.       Per-Click Basis. Where Services are provided on a Per-Click Basis, you shall pay Lazada a fee for each visit (each such visit being a “Click”) to a Shop or PDP that is the subject of the Services (“Click-Fee”). The Click Fee rate is selected using the relevant Portal or may be mutually agreed between the parties.

e.       Click-Fee rate. Lazada may refuse any requests for Services where the Click-Fee rate you select is not acceptable to Lazada.

Conversion Basis

f.        Conversion Basis. Where Services are provided on a Conversion Basis, you shall pay Lazada a fee for each Conversion which is equivalent to a percentage of the Seller’s Revenue on each Product (“Commission”). The Commission percentage is selected and confirmed by you at the point when you request for these Services.

g.       Commission rate. Lazada may refuse any requests for Services where the Commission rate you select is not acceptable to Lazada.

h.       Definition of Conversion.

A Conversion occurs when an order is placed for Seller’s Product as a result of the Services, which is defined based on the specific Policies for each Service. A Conversion is made invalid by cancellation, refund or return of the relevant order made within 30 days in which case no Commission will be payable to Lazada. Lazada may from time to time stipulate additional condition(s) before a Conversion is recognized, depending on the nature of the Service.

Per-Package/Asset Basis

i.        Per-Package/Asset Basis. Where Services are provided on a Per-Package/Asset Basis, you shall pay Lazada a fee for each package or asset chosen based on a rate card (“CPP Rate Card”). The CPP Rate Card is either selected by you using the Portals or mutually agreed between the parties.

j.        CPP Rate Card. The CPP Rate Card is a list of rates for the Services provided under this Agreement, which are calculated on a Per-Package/Asset Basis. Lazada may refuse any requests for Services where the Rate Card rate you select is not acceptable to Lazada.

Per-Mille Basis

k.       Per-Mille Basis. Where Services are provided on a Per-Mille Basis, Lazada may issue a Sales Order to you reflecting a Service fee calculated based on an estimated No. of 1000 Impressions (multiplied by the CPM) prior to the commencement of the Services. However, the actual No. of Impressions delivered may vary from the estimated No. of Impressions. The amount payable by you to Lazada shall be in respect of the actual No. of Impressions delivered subject to a maximum payable limit (which you will be required to indicate as a Budget when ordering the Services).

l.         Per Mille. Mille refers to 1000 Impressions. CPM, or Cost Per Mille, means the cost per 1000 Impressions as determined by Lazada based on the campaign settings selected by you.

m.      Definition of Impression. An Impression is a view. When a single User Material loads and displays in front of a user, this is one Impression.

Per-Day Basis

n.       Per-Day Basis. Where Services are provided on a Per-Day Basis, you agree to pay Lazada a fixed fee per day based on a rate card (“CPD Rate Card”). The CPD Rate Card is either selected by you using the Portals or mutually agreed between the parties.

o.       CPD Rate Card. The CPD Rate Card is a list of rates for the Services provided under this Agreement, which is calculated on a Per-Day Basis. Lazada may refuse any requests for Services where the CPD Rate Card rate you select is not acceptable to Lazada.

Store-Wide Basis

p.       Store-Wide Basis. When Services are provided on a Store-Wide Basis, you agree to pay Lazada a fee equivalent to a percentage of the total Shop Revenue (“Store-Wide Commission”) for the period during which such Services have been requested by you. The Store-Wide Commission percentage is selected and confirmed at the point when you request for the Services.

4.       Payment Method

a.       Prepaid account.

i.        If required by Lazada, you shall maintain a prepaid credit account with Lazada (“Account”);

ii.       You shall make payment of service credits into the Account in the following manners if they are available as payment options in any of the Portals at any point in time:

A.       Payment by bank transfer, credit card or any other payment modes as provided in the relevant Portal; 

B.       Transfer of funds from Seller’s total Revenue held in the Shop on the Platform (applicable only if you are the Seller on record, or if this transfer has been authorised by the Seller on record); or

C.      Drawdown against the credit quota made available to you in accordance with Clause 4(c) below, if you choose to enable such setting (applicable only if you are the Seller on record, or if the use of this credit quota has been authorised by the Seller on record).

iii.       Once funds have been paid or transferred to the Account, the funds are treated as committed service fees, and may not be withdrawn. Any request for a withdrawal or a refund will be granted or rejected in Lazada’s sole discretion.

iv.       Lazada may refuse to provide any Services if your Account has insufficient funds to make payment for such Services. 

b.       Prepaid or Postpaid

Lazada may require you to either pre-pay in advance for any Services used via the Account, or post-pay either (a) in accordance with the payment terms set out in any Sales Order issued by Lazada to you for the Services, or (b) by way of deduction of Revenue held in the Shop (applicable only if you are the Seller on record, or if this transfer has been authorised by the Seller on record).

c.      Quota

i.        Lazada may in its sole and absolute discretion, and subject to you satisfying such requirements as may be stipulated by Lazada from time to time, allow you to make payment of service credits into your Account by drawing on the credit quota made available to you (“Quota”). The Quota shall be renewed and the Quota amount updated for each calendar month. Unless stated otherwise by Lazada, you may only draw on the Quota if you do not have adequate Revenue held in the Shop on the Platform to complete a scheduled top-up.

ii.       Where the Quota is available, you may request the top up of the service credits into the Account without first transferring the funds. There shall be no limit on the number of payments made pursuant to the Quota so long as the total amount owed by you to Lazada does not at any time exceed the total Quota granted by Lazada.

iii.       Any amount drawn by you against the Quota shall be deemed as an amount owed to Lazada, and such amount (and any applicable taxes thereon) shall be immediately and automatically repayable. Without limiting any other rights or remedies which Lazada may have under law or in equity or otherwise, you hereby authorise Lazada to make all necessary deductions from your Account and/or your Store including the Revenue held in the Store and/or any prepaid credit to make such repayment.

iv.      No interests shall be charged for any credit used as long as repayment is made within the same calendar month. Without prejudice to any rights of Lazada, Lazada reserves the right to impose late interest in accordance with Clause 4(e) below on any amount which remains unpaid after such calendar month.

v.       Any Quota provided to you is at the sole and absolute discretion of Lazada and Lazada reserves the right to suspend the use of any Quota granted, reduce or increase such Quota from time to time, reject your request to carry out a drawdown against the Quota, disable the feature (whether in part or in whole), and/or demand repayment of any outstanding amount with immediate effect at any time without liability to you.

d.       Invoices and Account Statements.

i.        Lazada may issue a sales invoice, a tax invoice and/or an account statement to you in any of the Portal(s) for the Services based on any billing cycle as determined by Lazada, or in accordance with prevailing tax regulations.

ii.       For post-paid Services, Lazada may deduct any payment from the funds in the Shop or from amounts payable to you, if you are the owner of the Shop on record. Accordingly, any payment of Revenue to you by Lazada shall be done net of such deductions. For Services rendered on a Conversion Basis, in the event of overpayment or underpayment in respect of any valid or invalid Conversions, the corresponding adjustment will be reflected in the next payment to you.

iii.       Lazada may issue invoices or account statements using any of the Portals, or any other means mutually agreed in writing between you and Lazada, unless prohibited by applicable laws and regulations.

iv.       If there is any dispute on an invoice or an account statement, you will notify Lazada within 7 days from receipt of the invoice and will cooperate with Lazada in good faith to resolve the dispute within 7 days of notification to Lazada, failing which the original invoice shall continue to be effective.

e.       Without prejudice to any rights of Lazada, any sums paid late are subject to late interest of 3% per annum from the due date until the date of payment.

f.       Attribution model. For Services on a Conversion Basis:

i.        unless confirmed otherwise at the point when you request for the Services, an attribution window of 7 days applies, that is Commission for all Conversions that occur within 7 days after the date that a visit to the Platform is generated from a Lazada or a Lazada-approved affiliate marketer shall be payable to Lazada;  

ii.       where such Services are provided to you over a period of time, Commission for all Conversions that occur within 7 days (or such other number of days based on the applicable attribution window for the Services) after the last day of the period shall continue to be payable to Lazada; and

iii.       if you terminate the said Services before the end of the period, Commission for all Conversions that occur within 7 days (or such other number of days based on the applicable attribution window for the Services) from the date of termination shall be payable to Lazada.  

g        Right to offset. 

i.                                Lazada has the right to deduct from the funds in the Account any amount that is due and payable from you and/or a Seller (if you are not the Seller on record) to Lazada in relation to the activity in the Shop(s) on the Platform, including payments collected by Lazada such as the platform fee, commission, shipping fees, payment fees and/or any applicable commercial program fees payable by you and/or a Seller.

ii.                              Conversely, Lazada also has the right to deduct any amount that is due and payable from you in relation to the Services rendered under this Agreement (including without limitation, any transfer under Clause 4(a)(ii)(B), from such funds in the Shop(s) on the Platform.

iii.                             In order to give effect to such offset, if the Platform is operated by a Lazada Affiliate, you hereby irrevocably authorise and instruct:

(A)        Lazada to deduct the amount in the Account for the settlement of amounts payable to the Lazada Affiliate in relation to the activity in the Shop(s) on the Platform. Accordingly, Lazada shall be entitled to deduct any amount due and payable from you and/or a Seller (if you are not the Seller on record) to such Lazada Affiliate from the funds in the Account. Furthermore, Lazada shall be entitled to transfer to the Lazada Affiliate the amounts payable by you to the Lazada Affiliate from the funds in the Account on a weekly basis (or such other period of time as the Lazada Affiliate may deem fit); and/or

(B)        the relevant Lazada Affiliate to deduct the amount in the Shop(s) on the Platform for the settlement of amounts payable to Lazada under this Agreement and/or in connection with the Services, prior to paying the Seller the payments in accordance with the Terms of Service (Seller) or any other applicable agreement between the Seller and Lazada Affiliate. Accordingly, the Lazada Affiliate shall be entitled to transfer to Lazada the amounts payable to Lazada from the funds in such Shop(s)on a weekly basis (or such other period of time as the Lazada Affiliate may deem fit).

iv.                            For the avoidance of doubt, such payments shall be made in accordance with this Clause 4(g) without any further notice, approval or confirmation from or to you and/or the Seller (if you are not the Seller on record). If you are not the Seller on record, you hereby irrevocably represent, warrant and undertake that the Seller on record for the Shop has authorised the deductions required to be made against the Seller’s Shop account under this Clause.

 5.       Taxation.

a.       All applicable taxes inclusive of any prevailing consumption tax, including but not limited to any Sales Tax and Service Tax (“SST”), Goods and Services Tax (“GST”), Value Added Tax (“VAT”) or its equivalent where applicable (including those invoiced to you by Lazada), duties, or government fees shall be payable by you. Unless otherwise stated, all fees payable for the Services (for postpaid) or for the service credits payable into the Account (for prepaid) are stated or displayed exclusive of any applicable taxes, duties or government fees, and all such taxes or charges shall be payable by you to Lazada in addition to any stated or displayed fees or service credits.  

b.       If any amounts payable by you are subject to withholding taxes, duties, or other deductions, you shall gross-up the amount, pay and file the relevant withholding tax, duties or deductions to the relevant tax authority. For avoidance of doubt, after any such deduction or withholding, the net amount received by Lazada will not be less than what Lazada would have received as if there is no such requirement for deduction or withholding.   You are responsible to file and pay all taxes imposed on you under the applicable laws. Lazada shall not be responsible for any liabilities, fines, penalties and/or surcharges arising from your compliance or non-compliance to tax laws/regulations under this Agreement.   

6.       Service Level.

a.       You acknowledge that the Services are performed on an “as-is” basis and Lazada makes no representations, undertakings, or warranties as to:

i.        Any outcome of the Services including but not limited to timing of any Services and positioning of any data or content (including but not limited to User Materials); and

ii.       Any increase in traffic or Conversions at the Shop or PDP on the Platform.

b.       Lazada has sole discretion in the mode of performance of the Services.

c.       Any information (including and not limited to written reports and dashboards) provided by Lazada in relation to the Services is provided without any warranty or guarantee, including as to the accuracy or timeliness of the information, and Lazada isnot responsible for any outcome of your use of the information.       

d.       Use of each of the Portals is subject to Lazada’s right to reasonably suspend access to perform maintenance or modification to such Portal.

7.       Assignment, Transfer of Rights and/or Subcontracting.

Lazada may assign, transfer or subcontract all or part of its rights and/or obligations deriving from this Agreement without notification or your prior consent and shall have the right to use any service providers, subcontractors and/or agents on such terms as Lazada deems appropriate. 

8.       Intellectual Property. 

Except as provided in this Clause, nothing in this Agreement shall confer or transfer any intellectual property rights from any party to the other party(ies).

a.       Where the Services require any content or creative materials (“User Materials”), you will provide the User Materials to Lazada, and acknowledge that Lazada is not responsible for creating, validating the content of, or distributing the User Materials.

b.       Lazada has the discretion to reject any User Materials or request modifications to the User Materials for any reason.

c.       You hereby grant Lazada and its Affiliates a limited, royalty-free, fully paid-up, non-exclusive, and revocable worldwide license to use, copy, display, maintain, modify and reformat any User Materials provided, for the purpose of performing the Services and/or the operation of the Platform. This license terminates upon expiry of this Agreement.

d.       You hereby represent and warrant that:

i.         You are solely responsible and liable for any User Materials (including any landing page) submitted by you and delivered by Lazada pursuant to the Services;

ii.       You are solely responsible for ensuring that all information presented in any User Materials (including any landing page) are truthful and accurate and not otherwise prohibited by any laws and regulations;

iii.       The User Materials will not contain Prohibited Content;

iv.       All User Materials and the use of the User Materials in the Services comply with applicable laws and do not infringe nor will they cause Lazada to infringe the Intellectual Property Rights of any other person;

v.       You will not, and will not authorize any third party to, (a) generate automated, fraudulent or otherwise invalid Impressions, Clicks or Conversions, (b) conceal Conversions for any orders or campaigns where they are required to be disclosed or (c) use any automated means or form of scraping or data extraction to access, query or otherwise collect Lazada Sponsored Solutions related information from any platform except as expressly permitted by Lazada.

vi.       You are not aware of any claims by any person regarding any infringement of Intellectual Property Rights by the User Materials; and

vii.       You have obtained all necessary rights, licences, and consents to allow Lazada to use the User Materials in performing this Agreement.

e.       Lazada retains all Intellectual Property Rights generated as a result the Services, including any derivative works.

Part C: Lazada General Terms and Conditions

9.       Indemnity

a.       Nothing in this Agreement shall be construed to require Lazada to act as the advertiser of the Product or be considered as engaging in advertising services, as defined by applicable laws, and you shall at all instance remain solely and fully responsible and liable for all listings and User Materials (including any landing page) submitted by you in connection with the Services.

b.       You shall fully indemnify Lazada and its Affiliates for any losses, costs, or expenses resulting from your negligence or breach of this Agreement.

c.        Lazada) will not be liable for any costs, or losses you incur from your actions or instructions. 

d.       Neither party shall be liable to the other for any indirect losses, special damage, consequential damage, loss of goodwill, loss of profits.

e.       Each party’s maximum aggregate liability to the other party(ies) in a single contract year, except for liability arising from intent, gross negligence or misconduct, shall not exceed USD1,000,000 (or any equivalent amount in local currency) or the aggregate value of Services ordered in that contract year, whichever is higher.

10.     Cancellation and Termination

a.       Cancellation of any Service on any of the Portals shall follow the provisions as set out in the Local Addendum.

b.       Cancellation of any Services will not in itself terminate this Agreement.

c.       Lazada may terminate this Agreement without cause by providing you with 7 days written notice.

d.       Any party may terminate this Agreement with immediate effect by written notice to the other party(ies) if any other party:

i.        is subject to a petition seeking commencement of bankruptcy, reorganization, liquidation, court receivership or any similar proceedings that is filed or any of them is commenced against that party, or that party becomes bankrupt or insolvent; or

ii.        is in breach of this Agreement and fails to correct such breach within 20 days from the receipt of notice demanding such correction.

e.       Upon termination of this Agreement, Lazada is entitled to continue to complete any Services requested and accepted prior to termination, and you shall make payment in accordance with this Agreement.

f.        Upon termination, Lazada may suspend your access to parts of the Portals relating to this Agreement.

g.       The termination of this Agreement shall not affect the validity of any other agreements you have with Lazada.

11.     Representations and warranties

a.       Each party represents and warrants that:

i.        it has full power, capacity, and authority to enter into this Agreement; and

ii.       it complies with all applicable laws and possess all required licenses in entering and performing this Agreement.

12.     Non-agency

a.       Neither this Agreement nor provision of the Services gives any party authority to enter into contracts on behalf of the other party(ies).

b.       Nothing in this Agreement constitutes any personnel of Lazada as agent, employee, or personnel of client, nor creates any fiduciary relationship between them, nor appoints them as agent in respect of any media inventory or services purchased by Lazada in providing the Services.

13.     Confidentiality

a.       Each party shall use the other party(ies)’s information, materials, records and/or documents which the disclosing party or any of its representatives provides or has provided to the receiving party(ies) or any of its Affiliates or representatives (“Confidential Information”) obtained in connection with the execution and performance of the Agreement solely for carrying out its obligations under the Agreement. Each party shall not disclose or provide to any third party the Confidential Information without the prior written consent of the other party(ies). The parties shall bind each of their officers, employees and related persons to the same obligation as the obligation set forth in this Clause.

b.       Each party shall return all Confidential Information to the disclosing party(ies) upon termination of this Agreement or shall discard such information with the written consent of the disclosing party(ies) if such information may not be returned. The confidentiality obligation shall survive the termination of this Agreement for five (5) years.

14.     Compliance with Laws

a.       In performing this Agreement, you shall strictly comply with all applicable laws, treaties, ordinances, codes and regulations, and specifically with any personal data protection, import and export, and health, safety and environmental, laws, ordinances, codes and regulations of any jurisdiction (whether international, country, region, state, province, city, or local) where this Agreement may be performed. Upon Lazada’s written request, you shall provide any written certification of compliance required by any federal, state, or local law, ordinance, code, or regulation.

Anti-bribery

b.       You (including your principals, owners, directors, officers, employees, consultants, affiliates, suppliers, agents, and subcontractors) shall comply with all applicable anti-bribery and anti-corruption laws (“Anti-Bribery and Corruption Laws”), including but not limited to the United States Foreign Corrupt Practices Act of 1977 and the UK Bribery Act of 2010, in performing this Agreement and in relation to the Service.  Accordingly, you hereby agree that:

i.        you will not directly or indirectly offer, give, authorize, solicit, or accept the giving of money or anything else of value to or from any person, whether a government official or private party, to obtain an improper advantage for Lazada, or any third party, or to secure the improper performance of that person’s function or misuse of that person’s position;

ii.       you will not directly or indirectly offer, give, or authorize the giving of money or anything else of value to any government official in his or her personal capacity, to facilitate or expedite government action or approvals;

iii.       you will not do, or omit to do, any act that will cause Lazada to breach the Anti-Bribery and Corruption Laws;

iv.       you will not directly or indirectly offer, give or authorize the giving to any Lazada employee or contractor (or any employee or contractor of any Lazada Affiliate(s)) any gift, gratuity, service, favor, or anything else of value to influence or reward that employee or contractor in connection with this Agreement;

v.       you will not accept and shall promptly report to Lazada, any request or demand for any undue financial or other advantage of any kind you receive in connection with the performance of this Agreement;

vi.       you represent and warrant that you have, regarding any past action or omission related to this Agreement, acted consistently with the above requirements.

c.       You further represent and warrant that neither you nor any of your principals, owners, directors, or officers:

i.        have been convicted of any offence involving bribery, corruption, fraud, or dishonesty;

ii.        have been or is the subject of any investigation, inquiry or enforcement proceedings by any governmental, administrative, or regulatory body regarding any offense or alleged offense under the Anti-Bribery and Corruption Laws; or

iii.       have been, or are listed by any government agency as being, debarred, suspended, proposed for suspension or debarment, or otherwise ineligible for participation in government procurement programs or government contracts,

You will promptly notify Lazada if you or any of your principals, owners, directors, or officers become subject to the above during the term of this Agreement.

d.       You will keep accurate books, records, and accounts in connection with the Services. In addition, if Lazada reasonably suspects you to have failed to comply with this Clause such that Lazada has incurred, or is likely to incur,  losses, liabilities, and/or claims (including government fines and penalties) as the direct result of such failure, Lazada and its  third-party representatives will have the right to collect and copy, with your reasonable assistance, any of your records and other information relevant to any such losses, liabilities, and/or claims. 

e.       You will notify Lazada if you become aware of information that suggests that you have failed, or are likely to fail, to comply with this Clause. 

f.        Lazada may terminate this Agreement, or suspend or withhold payment effective immediately, upon written notice to you if Lazada in good faith believes that you have breached or caused a breach of this Clause.  Lazada shall not be liable for any claims, losses or damages you suffer arising from or in connection with your failure to comply with this Clause, or the termination of this Agreement pursuant to this Clause. 

g.       Regardless of any other provision in this Agreement, Lazada will not be obliged to do, or omit to do, any act which would, in its reasonable opinion, potentially put it in breach of the Anti-Bribery and Corruption Laws.

15.     Data protection

a.       The parties acknowledge and agree that Lazada is the data controller and you are the data processor or data intermediary of any personal data (as may be defined under any applicable personal data protection Law) disclosed to Seller (if you are the Seller on record) (“Personal Data”).

b.       You shall:

i.        comply with all applicable personal data protection and privacy Laws (“Data Protection Laws”) and use best endeavours to ensure that none of your acts or omissions cause Lazada and/or its Affiliates, whether directly or indirectly, to be in breach of any such laws;

ii.       not access, use, copy, process or (subject to Sub-Clause (e) below) disclose the Personal Data to any third party except to the extent, and in such a manner, that is in compliance with Data Protection Laws, strictly necessary in connection with the Services and solely in accordance with Lazada’s instructions;

iii.       take all appropriate technical, security and organizational measures, having regard to the nature of the Personal Data, against any unauthorised or unlawful processing, use or disclosure of, and access to, the Personal Data and against the accidental loss, destruction of, or damage to, the Personal Data;

iv.       keep an updated record in writing of any processing of the Personal Data, and shall, within two (2) business days of Lazada’s request, provide Lazada with a copy of all such records;

v.       maintain an updated list of all third parties to whom the Personal Data is disclosed and shall, within two (2) business days of Lazada’s request, provide Lazada with a copy of this list;

vi.       within two (2) business days, comply with any request from Lazada requiring the Seller (if you are the Seller on record) to update, amend, transfer, anonymise or delete the Personal Data;

vii.      within two (2) business days of Lazada’s request, provide a copy of all Personal Data you hold in the format and on the media reasonably specified by Lazada; and

viii.     inform Lazada in writing, as soon as you become aware as and when any Personal Data is lost or accessed in an unauthorised or unlawful manner or by an unauthorised person or destroyed or becomes damaged, corrupted or unusable (“Data Breach”). In any such case, you shall restore such Personal Data at your own expense.

c.       If you receive any complaint, notice, demand or communication (including a request from a Buyer for access to his or her Personal Data) relating directly or indirectly to the Personal Data or to any of Lazada or its Affiliates’ or their respective subcontractors’, or your compliance with Data Protection Laws  or this Clause, you shall immediately notify Lazada in writing of the same and you shall provide Lazada with full co-operation and assistance in relation to any such complaint, notice, demand or communication and provide any relevant information and/or documentation in respect of the relevant Personal Data (including, information on your manner of access, use and disclosure of such data).

d.       If Lazada has reasonable cause to believe that you are in breach of any obligations under this Clause or Data Protection Laws, Lazada shall be entitled, without notice, to inspect or appoint representatives to inspect all your facilities, equipment, documents and electronic data relating to your processing, use, and/or disclosure of, and access to, Personal Data (the “Inspection”).

e.       Subject to Sub-Clause (g), you may only disclose Personal Data to a third party or authorise a third party to process the Personal Data under this Agreement if:

i.        such disclosure is strictly required to facilitate your performance of this Agreement, and any disclosure shall only be made to the extent such third party’s assistance is required for the processing of Personal Data;

ii.       you warrant, undertake and guarantee that you shall indemnify Lazada in respect of any claims, demands, proceedings or damages against Lazada in connection with a Data Breach by such third party;

iii.       any follow-on disclosure of the Personal Data by the third party to any other person (including such person’s affiliates and/or related corporations) shall be subject to Lazada’s prior written consent; and

iv.       the binding agreement between you and any third party under which you disclose the Personal Data shall oblige such third party to provide substantially the same standard of protection, security and care for processing of the Personal Data as that set out in this Clause.

f.        You shall ensure that any access by your directors, officers or employees (“Key Personnel”) to the Personal Data is strictly limited to:

i.       only those Key Personnel who need access to the Personal Data; and

ii.       such part of the Personal Data as is strictly necessary,

for the performance of such Key Personnel’s duties to meet your obligations under this Agreement.

g.       You shall not transfer any Personal Data to another country without Lazada’s prior written consent.

h.       You shall unconditionally defend, indemnify and hold harmless, and, at Lazada’s option, defend Lazada, its Affiliates, and our employees, directors, agents and representatives, from and against any and all liens, damages, losses, liabilities, obligations, penalties, claims, litigation, demands, defences, judgements, suits, proceedings, costs, disbursements or expenses of any kind or of any nature whatsoever (including third party claims, reasonable attorneys’ fees, consultant’s fees, experts’ fees and other costs associated with litigation) arising out of, or relating to, any actual or alleged Data Breach by you or of any third party to whom you disclose Personal Data to. If Lazada reasonably determines that any indemnified claim might adversely affect Lazada and/or its Affiliate(s) in any way, Lazada may take control of the defence at your expense. You shall not consent to the entry of any judgment or enter into any settlement of a claim without Lazada’s prior written consent, which consent may not be unreasonably withheld.

16.     Governing Law and Dispute Resolution

The Governing Law and Dispute Resolution Clause applicable to this Agreement shall follow that which has been set out in the Local Addendum.

17.     Miscellaneous

a.       Non-Assignment. You may not assign, transfer or sub-contract all or part of your rights and/or obligations under this Agreement to a third party without the prior written consent of Lazada.

b.       Force Majeure. No party shall be liable for any delay or failure in performance of this Agreement if such delay is caused by events or conditions beyond its reasonable control such as acts of God, unexpected acts of any governmental authority, war, riots, natural disasters, global health-related emergencies (“Force Majeure Event”), Provided That, such party shall use reasonable efforts to mitigate any delay or failure caused by the Force Majeure Event, and shall immediately notify the other party(ies) of the Force Majeure event, the anticipated delay or failure, and the contingency plan to mitigate the delay or failure. No party shall be liable for any costs incurred by the other party(ies) due to a Force Majeure Event.

c.       Severability.  If any provision of this Agreement is held to be illegal, invalid, or unenforceable, in whole or in part in any jurisdiction, this Agreement shall, in such jurisdiction, continue to be valid as to its other provisions and the remainder of the affected provision; and the legality, validity or enforceability of such provision in any other jurisdiction shall be unaffected.

d.       Non-waiver. No failure or delay by any party to exercise any right or remedy under this Agreement shall impair such right or remedy nor operate as a waiver of it.           

e.       Entire Agreement. This Agreement, and the documents referred to in it, constitute the entire agreement between the parties and supersedes all prior agreements, correspondence, undertakings, or representations relating to the subject matter of this Agreement.

f.        Third Parties. Save for Lazada’s Affiliates, no one other than a party to this Agreement and their permitted assignees, shall have any right to enforce any of its terms. Lazada’s Affiliate(s) will have the benefit of all rights (including all licenses) of Lazada under this Agreement).

- End of page-

Definitions

“Account” has the meaning in Part B, Clause 4(a)(i).

“Affiliate(s)” means any other persons that directly or indirectly through one or more intermediaries, control, are controlled by, or are under common control with, such party.

“Anti-Bribery and Corruption Laws” has the meaning in Part B, Clause 14(b).

“ASC” means the Lazada’s Seller Centre identified in the Local Addendum, depending on the country where you are based.

“Bid Price” has the meaning Part D, Clause 2(b)(i)(A)

“Budget” has the meaning in Part B, Clause 3(b).

“Budget Period” has the meaning in Part B, Clause 3(b).

“Buyer” means a third-party, who purchases a Product on the Platform.

“Campaign” has the meaning in Part D, Clause 2(b)(i)

“Click” has the meaning in Part B, Clause 3(d).

“Click-Fee” has the meaning in Part B, Clause 3(d).

“Commission” has the meaning in Part B, Clause 3(f).

“Confidential Information” has the meaning in Part C, Clause 13(a).

“Conversion” has the meaning in Part B, Clause 3(h).

“Conversion Basis” has the meaning in Part B, Clause 3(f).

“CPM Bidding” means real-time manual bidding on a cost per-mille basis for the Sponsored Display solution through the CPM Bidding function.

“Daily Campaign Budget” has the meaning in Part D, Clause 2 (b)(i)(C)

“Data Breach” has the meaning in Part C, Clause 15(b)(viii).

“Data Protection Laws” has the meaning in Part C, Clause 15(b)(i).

“Force Majeure Event” has the meaning in Part C, Clause 17(b).

“Inspection” has the meaning in Part C, Clause 15(d).

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

“Key Personnel” has the meaning in Part B, Clause 15(f).

“Lazada Sponsored Solutions Centre” means the one-stop portal for ordering Sponsored Solutions that can be accessed through the Portals, at the link specified in the Local Addendum.

“Local Addendum”: Schedule A of this Agreement, which sets out additional terms and conditions governing your use of the Services and the Portal in your country.

“MSP” means Lazada’s Marketing Solutions Portal, accessed at the link specified in the Local Addendum.

“PDP” has the meaning in Part B, Clause 1(a).

“Per-Click Basis” has the meaning in Part B, Clause 3(d).

“Personal Data” has the meaning in Part C, Clause 15(a).

“Platform” means (a) both the web and mobile versions of the following websites: www.lazada.co.id, www.lazada.com.my, www.lazada.com.ph, www.lazada.sg, www.lazada.co.th, www.lazada.vn, and any successor or replacement website(s), as the case may be depending on which country you list and sell Products on, or any other internet domain property operated and/or owned by Lazada and/or its Affiliates; and (b) the mobile applications made available from time to time by Lazada and/or its Affiliates, including the iOS and Android versions.

“Policies” means any rules, guidelines, terms and conditions or service descriptions relating to the Services that may be published on any of the Portal(s) or otherwise communicated to you from time to time by Lazada, including the seller agreement executed between you and Lazada (if any).

“Portal” means the ASC, MSP or the Lazada Sponsored Solutions Centre, and “Portals” refer to a combination of any of these.

“Product” means a product available for sale to the Buyers on the Platform.

“Prohibited Content” means any content which is:

i.          related to the sale of any Product where such sale is prohibited under any relevant laws, including but not limited to counterfeit goods, illegal drugs, and other prohibited products;

ii.          related to the advertising of any Product where such advertising is prohibited under any relevant laws;

iii.         would harm the goodwill or reputation of Lazada;

iv.         obscene, indecent, or pornographic;

v.          violent;

vi.         likely to incite any form of discrimination, violence, or terrorism;

vii.        related to the sale of firearms or weapons; or

viii.        defamatory.

“Quota” has the meaning in Part B, Clause 4(c).

“Revenue”, in relation to a Product sold, means the price of that Product net of any refunds and other adjustments in accordance with any of the terms or policies on Lazada’s Platform and in the Portals, which is payable to the Seller.

“Seller” means the seller of a Product on the Platform which is the subject matter of the Services provided under this Agreement and/or the entity who has registered and agreed to use the Services provided under this Agreement, as applicable.

“Services” has the meaning in Part A, Clause A.

“Smart Template” has the meaning in Part D, Clause 2(a)(i)(C).

“Shop” has the meaning Part B, Clause 1(a).

“Solution Specific Terms” has the meaning in Part D, Clause 2.

“Threshold” has the meaning in Part B, Clause 3(c).

“User Materials” has the meaning in Part B, Clause 8(a).

Part D – List of Sponsored Solutions

1.          List of Sponsored Solutions

2.          Solution Specific Terms

This Clause 2 of Part D sets out additional terms and conditions governing your use of the specific Services in this Part D (“Solution Specific Terms”). For the avoidance of doubt, the Solution Specific Terms form part of the Agreement and has the same force and effect as if expressly set out in the body of the Agreement. In the event of any conflict or inconsistency between the Solution Specific Terms and the body of the Agreement, the provisions of these Solution Specific Terms shall prevail.

a.      New Product Launcher

i.        By using the New Product Launcher, you hereby acknowledge and agree that Lazada shall be authorised:

A.      to use certain software, algorithms or models to automatically optimize the placement of the participating Products and, where required, make bids for keywords for specified listing slots in accordance with the Budget set by you (plus any applicable Threshold); 

B.      to use information about you, the Store, or the Product that you share or we (or our affiliates and partners) collect in connection with your use of the Services or the Platform to perform the Services, and in particular for the Smart Template (as defined below); and

C.      (where the Smart Templates function is selected), to automatically display certain auto-generated information relating to the Seller, the Store, or the relevant Product (such as Seller rating, on-time shipping rate, Product sales ranking etc.) on frames, templates, banners or similar creative features superimposed on the User Material which you have provided with the objective of optimising the sales performance of the Products participating in the campaign (“Smart Templates”). These auto-generated content gets continuously updated, explored, evaluated and optimised to improve the performance and the system will automatically select relevant variables to present to the target audience based on the tested combinations;

ii.       For the avoidance of doubt, the Smart Templates are provided on an “as-is” basis and without any warranty of any nature, whether express or implied, and without limitations, Lazada disclaims any warranty with respect to the design, reliability, suitability, satisfactory quality, performance or completeness of the Smart Templates and any impact it may have on your campaigns. Lazada makes no guarantee on the reach, frequency, or performance of your campaigns. In performing the Services, Lazada may in good faith use and rely on the logic or methodologies adopted by or output generated by the algorithm or models used by Lazada’s system. If you are dissatisfied with any part of the Service (including the Smart Templates feature), you may (if such function is available) cancel or terminate your use of the relevant Service in accordance with the provisions of this Agreement or in the manner as provided on the Portal;

iii.       To the extent permitted under applicable laws, none of Lazada, its Affiliates and their respective employees, directors, agents and representatives shall have any liability under or in connection with the performance of the obligations under this Clause 2(a) of Part D (whether in contract, tort (including negligence), equity, statute or otherwise) for any and all losses that arises in connection with Lazada acting in accordance with this Clause 2(a) of Part D, save and except to the extent loss is caused by the fraud of the indemnified parties; and

iv.      To the extent permitted under applicable laws, you hereby agree to indemnify and keep indemnified and hold harmless Lazada, its Affiliates and their respective employees, directors, agents and representatives from and against any and all losses (including any reasonable losses which any of the indemnified parties agrees to pay by way of settlement or compromise) in connection with the performance of the Services, the User Materials or your use of the New Product Launcher under this Clause 2(a) of Part D (whether in contract, tort (including negligence), equity, statute or otherwise), provided that this Clause 2(a)(iv) shall not be available to Lazada or any of the indemnified parties to the extent that the losses for which it is seeking relief or indemnity hereunder arises from its own negligence, willful misconduct or fraud.

         b.        Sponsored Display CPM Bidding

i.           To participate in Sponsored Display CPM Bidding, you are required to create a new campaign under the CPM Bidding segment (“Campaign”) and provide the following details:

A.         the maximum CPM bid price ("Bid Price") for the Campaign created, which is the highest amount that you are willing to pay for every 1,000 impressions. Lazada may stipulate a minimum and/or maximum Bid Price for a Campaign;

B.         the Campaign start date, and if required by you, the Campaign end date. If a Campaign end date is not identified, the Campaign will continue to run daily until all available post-paid credit balance are used up; and

C.         the daily campaign budget ("Daily Campaign Budget").

ii.          Subject to availability of the following functionalities in the Platform, you may:

A.         customize your Campaign settings, set audience selection and upload creative;

B.         monitor the CPM Bidding real-time report; and

C.         where the functionality is available:

1.       set or increase the Bid Price for each Campaign;

2.       pause, terminate or amend the duration of a Campaign;

3.       cancel the bid; and/or

D.         perform such other CPM Bidding features that Lazada may provide from time to time on such terms and conditions as may be agreed by the parties.

in each case, provided no modifications nor cancellation shall be permitted in respect of any spending that had been incurred and you shall remain liable to pay all charges resulting from CPM Bidding until the modification or cancellation takes effect; and

you are responsible for maintaining the security of your account, and you understand and agree that you shall be fully responsible for, and be bound by, any and all access and use of CPM Bidding and the Tools (including for any Campaign bids placed through or on your account).

iii.           All Campaigns with the winning bid will be delivered when inventory of impressions becomes available. Scheduling of delivery of the impressions is subject to availability and may not be continuous. Lazada makes no express or implied representations, warranties or guarantee on the delivery or total distribution although you will be informed of actual delivery real-time on the CPM Bidding dashboard. You will only be charged based on the bid price of actual delivered impressions determined by Lazada in accordance with its standard tracking methodologies.

iv.           When serving your Campaign, Lazada will use commercially reasonable efforts to deliver the impressions to the audience you specify or to achieve the outcome you select, although we cannot guarantee in every instance that your Campaign will reach its intended target or achieve the outcome you have selected in your Campaign Setting.

         c.        RedMart Sponsored Display & Redmart Sponsored Display CPM Bidding

i.        By using the RedMart Sponsored Display and/or the Redmart Sponsored Display CPM Bidding Services, without limiting any other rights or remedies which Lazada may have under law or in equity or otherwise, you hereby acknowledge and agree that:

A      Lazada has the right to deduct any amount that is due and payable from you in relation to the Services rendered under this Agreement from any amounts payable to you by Lazada, including any fees payable by Lazada to you for the sale of goods and/services.

B.      For post-paid Services, Lazada may require you to post-pay by way of deduction against any amounts payable to you by Lazada, including any fees payable by Lazada to you for the sale of goods and/services. Accordingly, any payment due to you by Lazada shall be done net of such deductions. For Services rendered on a Conversion Basis, in the event of overpayment or underpayment in respect of any valid or invalid Conversions, the corresponding adjustment will be reflected in the next payment to you.

C.      Where a Quota is made available to you in accordance with Clause 4(c), you hereby authorize Lazada to offset any amount drawn by you against the Quota from any amounts payable to you by Lazada, including any fees payable by Lazada to you for the sale of goods and/services.

D.      “RedMart Sponsored Display” means Sponsored Display on the RedMart channel of the Platform. All references to Sponsored Display in this Agreement shall include a reference to RedMart Sponsored Display.

Schedule A

Local Addendum

This Local Addendum sets out additional terms and conditions governing your use and access of the Portal and the Services in your country. For the avoidance of doubt, this Local Addendum forms part of the Agreement and has the same force and effect as if expressly set out in the body of the Agreement. In the event of any conflict or inconsistency between this Local Addendum and the body of the Agreement, the provisions of this Local Addendum shall prevail.

Schedule B

Traffic Enhancement Terms

For the purpose of these Traffic Enhancement Terms (“Terms”), if the Service stipulated in the Terms is made available for You by Lazada at its sole discretion, You agree to be bound by this Terms in addition to the Agreement to the extent that it relates to the Service specified herein. “You” shall have the meaning prescribed to the Client as specified in the Agreement and any word or expression specifically defined in these Terms shall have the meaning as specified herein. Unless otherwise specified herein, where there is any conflict or inconsistency between these Terms and the Agreement, the terms of this Terms shall prevail to the extent related to the Service under this Terms

1.               DEFINITIONS

“Account” has the meaning set out in Clause 6.1.

“Affiliates” means, with respect to a given person, (i) a director, officer, partner, member, manager, executor or trustee of such person or (ii) any person directly or indirectly controlling, controlled by, or under common control with that person. For purposes of this definition, "control," "controlling" and "controlled" mean having beneficial ownership of more than 50% of the ownership interests of such person or rights to exercise more than 50% of the voting rights of such person, having the right to elect a majority of the board of directors or other comparable body responsible for management and direction of a person by contract, or having the power to direct or cause the direction of the management and policies of such person, whether by virtue of ownership interests or voting securities, by contract or otherwise.

“Terms” means these Terms and Conditions to be read together and in conjunction with the Agreement Form (if applicable) and/or separate instructions provided by the Client to Lazada in connection with the Services.

“Applicable Data Protection Laws” means all statutes, regulations, orders, regulatory requirements, by laws, ordinances, rules, notices, judicial interpretation, national standards, subordinate legislation and other laws or other like legal instruments relating to the processing of personal data, which are applicable to the Parties, or which are applicable in respect of the personal data and including any amendments thereof.

“Applicable Laws” means all statutes, regulations, orders, regulatory requirements, by laws, ordinances, rules, notices, judicial interpretation, national standards, subordinate legislation and other laws or other like legal instruments which are applicable to the Parties and including the Applicable Data Protection Laws, and any amendments thereof.

“Audience” means an aggregated non-personally identifiable demographic sharing a certain pattern.

“Audience Sharing” has the meaning set out in Clause 2(a).

“Authorised Agents” means any person or entity, including advertising agency or consultant, acting as the Client’s agent to instruct and/or accept the Services and perform digital marketing activities using the Service Object.

“Brands” means any Client-managed brand, including any associated trademarks, in relation to the Products and, where the Client is a regional headquarter, shall include all of the Client’s overseas Affiliates operating within the South East Asia region.

“Business Day” means a day (other than Saturday or Sunday or public holiday) on which banks are open for general business in the country applicable to the Client.

“Client” means a registered user of the Services.

“Conversion Pixel” means a code implemented on the Lazada Platform or any Third-Party Platform that allows any Third-Party Platform to capture information about specific browsing history or actions taken by a user on any website that such code is implemented on.

“Digital Platform” means any third-party digital platform(s) on which the Service Object is shared.

“Disclosing Party” has the meaning set out in Clause 11.1.

“Dynamic Advertising” or “Catalogue Sharing” has the meaning set out in Clause 2.2(b).

“Intellectual Property Rights” means all patents and copyright, moral rights, trade marks, design rights, rights in or relating to databases, and/or confidential information, rights in relation to domain names, and any other intellectual property rights (registered or unregistered) throughout the world.

“Lazada” means Lazada Limited

“Lazada Conversion Pixel” means a Conversion Pixel implemented on the Lazada Platform.

“Lazada Platform” means the Lazada Sites and the Lazada mobile application.

“Lazada Sites” means the website that has its primary home page identified by the URL: www.lazada.com.my, www.lazada.sg, www.lazada.co.th/, www.lazada.com.ph/, www.lazada.co.id/

 and www.lazada.vn and any successor or replacement website(s).

“Losses” has the meaning set out in Clause 9(e).

“Party” means each of Lazada and Client respectively, and “Parties” shall mean both parties collectively.

“Personal Data” means personal information or data, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained or any personal information or data as defined under the Applicable Data Protection Laws.

“Product” means any and all goods, products, services, and/or items that the made available for sale by the Brand or by its distributors, resellers or licensees on the Lazada Platform.

“Product Detail Page” means the page of the Product on the Lazada Platform identified by an item ID and an SKU ID.

“Receiving Party” has the meaning set out in Clause 11.1.

“Service” has the meaning set out in Clause 2.2.

“Service Object” means the object shared by Lazada to the Client as part of the Service including Audience Sharing, Catalogue Sharing, Dynamic Advertising and any other services as determined and agreed between Parties from time to time.

“Third-Party Platform” means any site other than the Lazada Platform.

2.               THE SERVICE

2.1             The Parties agree that the provision of the Services may be made subject to and conditional upon the Client having fulfilled the requirements that Lazada communicate in writing to the Client. If such conditions are not fulfilled by the Client, Lazada incurs no responsibilities or liabilities under this Terms.

2.2             Client agrees that, through the Digital Platform or any other channels as agreed by the Parties, Lazada shall provide Service Object sharing:

(a)             certain Audiences with the Client by giving the Client access to information from Lazada Conversion Pixels (“Audience Sharing”);

(b)             certain information from the relevant Product Detail Pages of the Brands on the Lazada Platform with the Client and the Digital Platforms (“Catalogue Sharing”) for the purpose of creating advertisements that link directly to such Product Detail Page on the Lazada Platform (“Dynamic Advertising”);

(c)             any other services as determined and agreed between Parties from time to time;

collectively the “Service”.

2.3             Client acknowledges that:

(a)             Lazada makes no representations, undertakings or warranties as to performance or service levels of the Service;

(b)             Lazada has sole discretion in the determining the performance of the Service and/or the specification and scope of the Service Object; and

(c)             Lazada shall retain all rights, control and interest (including any applicable Intellectual Property Rights) in, over and to the Service Object.

3.               CANCELLATION OR AMENDMENT OF SERVICE

3.1             Either Party may cancel or amend the scope of Service by delivering at least seven (7) days’ prior written notice to the other Party.

3.2             If Lazada’s performance of the Service is prevented or delayed due to Client’s act or omission under this Terms, Lazada is entitled to discontinue the provision or performance of the Services with no penalty, and to recover any costs or losses incurred due to such prevention, delay or discontinuation.

3.3             Upon cancellation or amendment of any Service:

(a)             the rights and obligations of the Parties shall be adjusted based on the amended Service as the Parties may agree in writing; and

(b)             Lazada is entitled to immediately adjust all or any advertising materials created by Lazada in the Lazada Platform or any other marketing channels used by Lazada to perform the Service, to conform with the amended Service.

3.4             Cancellation of any Service shall not in itself terminate this Terms.

4.               RESPONSIBILITIES OF THE CLIENT

4.1             In consideration for the Services provided by Lazada, the Client shall use, and shall ensure that its Authorised Agents use, the information from any Lazada Conversion Pixel solely to direct visitors to the Lazada Platform. Under no circumstances will it direct any visitors to any Third-Party Platform using any information obtained from any Lazada Conversion Pixel.

4.2             For any Client’s Account that Lazada provides with access to information obtained from any Lazada Conversion Pixel, the Client will, at minimum, provide Lazada with the following access to such Account:

(a)             the ability to review the Brands’ media strategy;

(b)             the ability to review the Brands’ advertising set up; 

(c)             the ability to check whether the information from any Lazada Conversion Pixel is used solely in compliance with Clause 4.1; and

(d)             the ability to troubleshoot any issues with information from any Lazada Conversion Pixel.

4.3             For the Client’s Accounts, the Client shall grant Lazada a level of access permission which allows Lazada to view information in relation to (i) Audiences shared by Lazada with the Client and (ii) ad level catalogue settings, on the basis that Lazada shall strictly only be allowed to view but not make any amendments to the settings on the Client’s Accounts.

4.4             The Client shall ensure its Authorized Agents to:

(i)               abide by the provisions of this Terms; and

(ii)              use the Audience within the Client’s Account and only for purpose of driving internet traffic to Lazada Platform.

4.5             Any breach by any of the Authorised Agents of the Terms will be deemed as a breach of the Terms by the Client and the Client will remain responsible for any such breach by the Authorised Agents.

4.6             Client will not and shall ensure its Authorized Agents to not, directly or indirectly, engage in any fraudulent, impermissible, inappropriate or unlawful activities in connection with the performance of this Terms or utilization of the Service Object.

4.7             Client covenants, represents and warrants that:

(a)             The digital marketing activities performed by the Client and/or its Authorised Agents using the Service Object shall not and will not in any way be in contravention of any Applicable Laws;

(b)             The digital marketing activities performed by the Client and/or its Authorised Agents using the Service Object through any channels or media, does not and will not infringe or violate any rights (including without limitation any confidential rights or Intellectual Property Rights) of any third party, whether directly or indirectly;

(c)             in performance of the Service, the Client and its Authorised Agents (if applicable) will only drive internet traffic into the Lazada Platform and shall not reuse the Service Object in any way other than as stipulated under this Terms, including but not limited to driving internet traffic to any Third-Party Platform.

5.               SPECIFIC RESTRICTIONS

5.1             Internet Traffic Targeting. The Client represents and warrants that it shall not, and shall ensure its Authorised Agents to not, place any advertisements that breaches Applicable Laws, public morals or third-party rights, or harms the reputation of Lazada or its Affiliates. Prohibitions shall include, but not be limited to any digital marketing activities containing the followings:

(a)             Online dating;

(b)             Extreme graphics;

(c)             Explicit violence;

(d)             Pornography;

(e)             Profane content;

(f)               Seditious content;

(g)             Hatred content; and

(h)             Discriminatory or mimicry content (e.g. in respect of gender, race, politics, religion, nationality disability or sickness).

5.2             Lazada will periodically provide the Client with a list stipulating Third-Party Platforms of which the Client and its Authorised Agents are not allowed to work with, and the Client shall use its best efforts to remove and prohibit advertisements on such blacklisted Third-Party Platforms.

6.               AUDIENCE SHARING

6.1             Any time the Client creates an account on any Digital Platform (an “Account”) that has the ability to capture information through Conversion Pixels, including Lazada Conversion Pixels, the Client shall have the option of sending a request to Lazada to provide access to information from any available Lazada Conversion Pixel to the Client through such Account.

6.2             The Client may also send a request to Lazada to create and implement Lazada Conversion Pixels that provide information that the Client would like to have through an Account.

6.3             Lazada, in its sole discretion, may grant the Client access to information to any Lazada Conversion Pixel or to create or implement any Lazada Conversion Pixel requested by the Client.

7.               DYNAMIC ADVERTISING

7.1             Any time the Client creates an Account on any Digital Platform that has the ability to conduct Dynamic Advertising, the Client shall have the option of sending a request to Lazada to share certain relevant information from the relevant Product Detail Pages of the Brands on the Lazada Platform.

7.2             Lazada, in its sole discretion, may share with such Digital Platform any information from any Product Detail Page of the Brands on the Lazada Platform solely for the purpose of conducting Dynamic Advertising. 

8.               TERM

8.1             Unless otherwise set out in the Agreement Form (if applicable) and/or as agreed between the Parties in writing, this Terms shall be effective until terminated by any Party in accordance with the provision of this Terms.

9.               REPRESENTATIONS AND WARRANTIES

9.1             Lazada and the Client each represent and warrant that:

(i)               it is a limited liability company or corporation, duly incorporated and validly existing under the law of its jurisdiction or organisation;

(ii)              the obligations expressed to be assumed by it in this Terms are legal, valid, binding and enforceable;

(iii)             the entry into and performance by its obligations under this Terms do not and will not conflict with any Applicable Laws, any of its constitutional documents or any agreement or instrument binding upon it or its assets;

(iv)             it has the power to enter into, perform and deliver, and has taken all necessary action to authorize its entry into, performance and delivery of this Terms; and

(v)              all authorisations, permits, consents or licences required to enable it to lawfully enter into and perform its obligations under this Terms have been obtained or effected and are in full force and effect.

9.2             The Client represents and warrants that:

(i)               the legality of any actions done by the Client or its Authorised Agents in connection with the Services or using information obtained from the Services is the sole responsibility of the Client and it will comply with all Applicable Laws in the performance of any actions in connection with the Services;

(ii)              the legality of any Product advertised using information from the Services is the sole responsibility of the Client and it will comply with all Applicable Laws relating to such Products, including any intellectual property laws, product liability laws and laws against counterfeit goods and prohibited items;

(iii)             it is duly authorized by any Brand that it is obtaining information about in connection with the Services to enter into this Terms;

(iv)             any information provided to the Client pursuant to the Services remains under the sole ownership and control of Lazada; and

(v)              it understands that the Services are provided at the sole discretion of Lazada and Lazada has the right to terminate or cancel all or part of the Services at any time.

9.3             The representations and warranties contained in this Clause 8 shall be true at the time of the execution of this Terms and at all times while this Terms remains in force.

10.             LIMITATION OF LIABILITY AND INDEMNIFICATION

10.1           To the maximum extent permitted by law, Lazada, and its Affiliates, expressly disclaim all representations, warranties or conditions of any kind, whether express or implied, including the implied representations, warranties or conditions of merchantability and fitness for a particular purpose with regards to the Services and/or the Service Object.

10.2           Lazada and its Affiliates will not be liable for any failure to perform (nor any defective or delayed performance of) any of their respective obligations under this Terms, if and to the extent that such failure, defect or delay is due to the Client's acts or omissions or non-performance of any obligations of third parties, where such non-performance is not within Lazada’ s control.

10.3           To the maximum extent permitted by law, Lazada and its Affiliates will not be liable under this Terms to the Client or any of its Affiliates or any other third person, for any indirect, incidental, consequential, special, reliance or punitive damages or lost or imputed profits, lost data or cost of procurement of substitute goods or services, whether liability is asserted in contract, tort (including negligence and strict product liability) indemnity or contribution, and irrespective of whether a Party or any related entity has been advised of the possibility of any such loss or damage.

10.4           To the maximum extent permitted by law, the aggregate liability (inclusive of interest and legal and other costs) of Lazada and its Affiliates in respect of all claims, actions or demands arising under or in connection with this Terms (whether by reason of any negligence by Lazada or its Affiliates or any of their employees or agents, any non-fraudulent misrepresentation, any breach of contract or an express or implied warranty, condition or other term of this Terms, breach of statutory duty, or any duty at common law or under the terms of any indemnity given by Lazada or its Affiliates or otherwise) will not in any event exceed US$100.

10.5           The Client hereby agrees that it shall indemnify, defend and hold harmless Lazada from and against all actions, claims, demands, liabilities, damages, losses and costs and expenses (including legal fees) (collectively, the “Losses”), imposed on, sustained, incurred , suffered by or threatened against Lazada arising out of or relating to: (i) any breach of any representation or warranty made by the Client contained in this Terms (ii) the breach of this Terms by the Client; (iii) the Product, and (iv) the Client’s use of the Service and the Service Object.

11.             CONFIDENTIALITY

11.1           Each Party (the “Receiving Party”) will maintain the confidentiality of the following information and will not disclose it to others (except for their Affiliates and their respective directors, managers, officers, employees, financing sources, agents, representatives and advisors), or use it except in connection with this Terms, without the prior written consent of the Party furnishing such information (the “Disclosing Party”): 

(i)               Any information which is classified and/or can be classified by any Party and/or their Affiliates under Applicable Laws as confidential information including but not limited to the Audiences and information from any Lazada Conversion Pixel.

(ii)              Any information, materials, records and/or documents relating to the business and operations of either Party and/or their Affiliates.

(iii)             Any information, which is not commonly known by public that if used by the third Parties or competitor may cause moral or material damage to the parties or their Affiliates.

(iv)             Any knowledge and/or know-how of business and/or finance of the Parties and/or their Affiliates.

11.2           The non-disclosure obligations of the Receiving Party shall not apply to information which:

(i)               is or becomes a part of the public domain without breach of this Terms and through no act or omission of the Receiving Party or its Affiliates;

(ii)              has been independently developed by the Receiving Party or its Affiliates through the efforts of their employees or agents who have not had access to the Confidential Information;

(iii)             can be reasonably demonstrated to have been disclosed or made available to the Receiving Party or its Affiliates on a non-confidential basis by a third party having a right to do so and who did not, directly or indirectly, receive the Confidential Information through a Party who discloses the same in breach of its own confidentiality obligation;

(iv)             is required to be disclosed by order of a court or arbitration tribunal of competent jurisdiction, provided that so far as permissible under the Applicable Laws, the Receiving Party or its Affiliate shall have immediately notified the Disclosing Party in writing prior to the disclosure so as to enable the Disclosing Party and its Affiliates to seek an appropriate protective order or other appropriate remedy or waive compliance with the provisions of this Terms. The Receiving Party and its Affiliates shall also cooperate with the Disclosing Party and its Affiliates in seeking and utilizing any such protective order or other remedy. The Receiving Party and its Affiliates shall not effect any disclosure that is more extensive than that required by such order of a court or arbitration tribunal and shall take all reasonable actions to seek confidential treatment of the Confidential Information disclosed;

(v)              disclosure has been authorized with prior written approval of the Disclosing Party.

11.3           The Receiving Party shall not, directly or indirectly: (i) use any Confidential Information other than for the purposes connected to this Terms; or (ii) disclose to any third party or allow any third party to have access to any Confidential Information, except as expressly permitted herein.

11.4           The Receiving Party shall not use less than the same standard of care in maintaining the confidentiality of the Confidential Information as a reasonable person would use for its own confidential information of a similar nature.

11.5           The Receiving Party shall cause its Affiliates to comply with the terms of this Terms as though they were party hereto and shall be responsible for any breach of this Terms by its Affiliates

12              DATA PRIVACY

12.1           It is not anticipated that Personal Data will be exchanged due to the Services, but where Personal Data is exchanged or shared between Client and Lazada, both agree that this Clause shall apply:

(a)             the Client and Lazada agree to use any procedures required by Applicable Laws in order to protect the Personal Data.

(b)             the Client undertakes to use the Personal Data received from Lazada only for the purpose of fulfilling its obligations under this Terms.

(c)             subject to the Applicable Laws, the Client shall cease to process, or retain any documents containing Personal Data, or remove the means by which the Personal Data can be associated with particular individuals, as soon as it is reasonable to assume that (i) the specified purposes are no longer being served by retention of the Personal Data and (ii) processing or retention is no longer necessary for legal or business purposes or for performance of its obligations under this Terms.

(d)             the Client shall protect the Personal Data in its control or possession by making reasonable security arrangements. The security arrangements shall include appropriate technical and organizational measures and controls to prevent unauthorized or accidental access, collection, use, disclosure, copying, modification, disposal or destruction of the Personal Data as required under the Applicable Laws.

(e)             Lazada shall have the right to undertake a review of security provided by the Client and may request access to the Client’s or its sub-contractors’ premises for this purpose. Upon any such request by Lazada to undertake a security review, the Client shall facilitate such review and cooperate with Lazada fully. If pursuant to the security review, Lazada finds that the security arrangements put in place are inadequate, Lazada shall have the right to terminate this Terms and require the immediate destruction or return of the Personal Data.

12.2           The Client shall report any security incidents, breaches and newly-identified vulnerabilities to Lazada at the earliest opportunity by written notice, or in any event, no later than 8 hours from the time the Client becomes aware of such security incident, breach or newly identified vulnerabilities.

12.3           The Client shall unconditionally defend, indemnify and hold harmless, and, at Lazada’s option, defend Lazada, and its Affiliates, employees, directors, agents and representatives, from and against any and all liens, damages, losses, liabilities, obligations, penalties, claims, litigation, demands, defences, judgements, suits, proceedings, costs, disbursements or expenses of any kind or of any nature whatsoever (including third party claims, reasonable attorneys’ fees, consultant’s fees, experts’ fees and other costs associated with litigation) arising out of, or relating to, any actual or alleged Data Breach by the Client or of any third party to whom the Client has disclosed Personal Data to. If Lazada reasonably determines that any indemnified claim might adversely affect Lazada and/or and Lazada’s Affiliates in any way, Lazada may take control of the defence at the expense of the Client. The Client shall not consent to the entry of any judgment or enter into any settlement of a claim without Lazada’s prior written consent. For the purpose of this clause, “Data Breach” means (i) the unauthorised or unlawful processing, access, collection, use, disclosure, copying, modification or disposal of personal data, or (ii) the loss of any storage medium or device on which personal data is stored in circumstances where the unauthorised access, collection, use, disclosure, copying, modification or disposal of the personal data is likely to occur.

12.4           This Clause survives termination or expiry of this Terms for any reason.

13              BREACH AND TERMINATION

13.1           In the event that the Client breaches Clauses 4, 5 and 12 of this Terms, Lazada has the right

(a)             terminate this Terms with immediate effect;

(b)             terminate the provision of all or part of the Services to the Client;

(c)             require the Client to close down any or all of its Accounts; and

(d)             require the Client to immediately delete any information obtained from any Lazada Conversion Pixel.

13.2           In the event that the Client receives any notice from Lazada pursuant to Clause 13.1(a)-(d), it shall immediately comply with such instruction and provide Lazada with a written undertaking of such compliance within one (1) Business Day.

13.3           The Client and Lazada agree that nothing in this Clause 13 shall prevent, or be construed as, preventing Lazada from seeking injunctive and/or other equitable relief in a court of appropriate jurisdiction for any threatened or actual breach of the terms of this Terms or as a waiver of any of Lazada’s rights whatsoever.

14              TERMINATION

14.1           Either Party may terminate this Terms at any time, with or without cause, by providing thirty (30) days advance written notice to the other Party.

14.2           Lazada may terminate this Terms with immediate effect due to a material breach of any of the substantive provision of this Terms by the Client.

14.3           Lazada may, in addition to any other remedies available to it by law or in equity, terminate this Terms, in whole or in part as Lazada may determine, by notice to the Client in the event the Client becomes insolvent or bankrupt, or makes an assignment for the benefit of its creditors, or a trustee or receiver is appointed for all or a substantial part of their property, or a warrant of attachment, execution, distrait or similar process against any substantial part of their property has been issued, or any case or proceeding have commenced or other action taken by or against the Client in bankruptcy or seeking reorganization, liquidation, dissolution, winding-up, arrangement, composition or readjustment of their debts or any other relief under any bankruptcy, insolvency, reorganization or other similar act or law of any jurisdiction now or hereafter in effect, provided that in any such case such event have continued for sixty (60) days un-dismissed, unbounded and un-discharged.

14.4           Termination of this Terms for any reason will be without prejudice to any rights which will have accrued to the benefit of the Parties prior to such termination and will not relieve either Party from its obligations which are naturally intended to survive the termination of this Terms. Upon the termination of this Terms for any reason:

(a)             the Client shall, without being requested to do so, immediately delete or procure the deletion of all Audiences or information obtained from any Lazada Conversion Pixel;

(b)             the Client shall, immediately on receipt of instructions to this effect from Lazada, shut down its Accounts;

(c)             the Client shall have no right of retention of any information in respect of the Audiences or from any Lazada Conversion Pixel; and

(d)             the Client shall, at Lazada’s request, provide Lazada with written confirmation of the deletion.

15              GOVERNING LAW AND JURISDICTION

15.1           The Governing Law and Dispute Resolution Clause applicable to this Terms shall follow that which has been set out in the Local Addendum.

15.2           Any dispute arising out of or in connection with this Terms, including any question regarding its existence, validity or termination, shall in the first instance be referred to the Parties for discussion and resolution. The Parties shall use their best endeavours to resolve it.

16              MODIFICATIONS

16.1           Lazada may, through any account which Client has created with Lazada or portal which Client has been granted access to for purposes of the Services or any other means (including via email), notify Client of any changes to this Terms or any other guidelines and policies, which shall take effect immediately (unless otherwise specified in the Local Addendum or otherwise) upon the notification. Client may, within 7 days of any notification of a change to this Terms or the guidelines and policies, terminate this Terms by written notice to Lazada if Client does not agree with such changes. Client understands, acknowledges and agrees that continued use of any of the portals or the Services constitutes the Client’s agreement to any changes.

17              NOTICES

17.1           Visiting the portal, sending Lazada emails, and completing online forms via the portal and/or the Services constitute electronic communications. The Client consents to receive electronic communications, and agrees that all agreements, notices, disclosures, and other communications which Lazada provide to the Client electronically, via email, on the website and/or through the Services, satisfy any legal requirement that such communication is in writing. Client hereby agrees to the use of electronic signatures, contracts, orders and other records, and to electronic delivery of notices, policies, and records of transactions initiated or completed by Lazada or via the portal and/or the Services. To the extent permitted under Applicable Laws, Client hereby waive any rights or requirements under such Applicable Laws which require an original signature or delivery or retention of non-electronic records.

17.2           Unless stated otherwise in this Terms, all notices or demands to or upon Lazada pursuant to this Terms shall be effective if in writing and shall be duly made when sent to Lazada at the Lazada entity’s address applicable to you as specified in the Local Addendum by courier or registered mail. Such notice shall be deemed to be received one (1) Business Day after being deposited for next-day delivery with a recognized overnight delivery service, or three (3) Business Days after being mailed by registered mail, charges and postage prepaid. Notwithstanding the foregoing, we may from time to time designate other acceptable modes of receiving notice (including but not limited to other e-mail addresses, SMS, or other forms of electronic communication) and the time or event by which such notice shall be deemed given.

18              MISCELLANEOUS

18.1           Parties agree that if in the future any terms and/or conditions established in this Terms are held invalid or unenforceable by the Parties, the remaining terms and/or conditions shall nevertheless continue in full force and effect without being invalidated in any manner.

18.2           In the event of invalidity, the Parties agree in good faith to replace such invalid or unenforceable provisions with lawful and enforceable provisions, from an economic point of view, closest and fair to substitute for the effects to be derived from the invalid and unenforceable provisions.

18.3           Where the context so admits words denoting the masculine gender will include the feminine or the neuter and vice versa and words denoting the singular will denote the plural and vice versa. Any reference to a person will be construed as a reference to any person, firm, company, corporation, government, state or agency of a state or any association or partnership (whether or not having separate legal personality) or one or more of the foregoing.

18.4           Lazada may assign the Terms to its Affiliates, provided that it shall cause such Affiliates to comply with the terms of this Terms as though they were party hereto.

18.5           This Terms contains the entire agreement of the Parties and supersedes all prior or contemporaneous negotiations, correspondence, understandings and agreements between the Parties with respect to the matters hereof.

18.6           This Terms is not intended to confer on any person other than the Parties and their Affiliates hereto any rights or remedies hereunder.

18.7           The Parties will use all reasonable endeavours to ensure that they do nothing that will bring disrepute to the other Party’s name or which will affect the other Party’s reputation.

18.8           Nothing in this Terms will be deemed to constitute any partnership between the Parties, to create any relationship of agency between them, or to create any relationship of employee-employer and neither of the Parties has authority to bind the other Party unless expressly stated in this Terms or otherwise required by the lawful execution of the subject matter of this Terms.

18.9           The failure of a Party to exercise its rights in case of breach of contract by the other Party will not be considered as a waiver of its rights under the Terms or under the Applicable Law.

18.10        The Client will be responsible for all taxes, duties, fees and other charges owed by the Client under this Terms.

18.11        This Terms is drafted in the English language. If this Terms is translated into any other language, the English language version shall prevail, unless the document is a constitutional, statutory or other official document required by law to be in a language other than English.