This Master Service Agreement ("Agreement") is entered by and between GigaCloud Technology ("GigaCloud"), a Hong Kong company, and you, and effective as of the date you accept this agreement ("Effective Date"). This Agreement governs your access to and use of all of GigaCloud's websites and mobile sites and services, including but not limited to gigab2b.com ("GigaCloud Services"). Gigab2b.com is called the "GigaCloud Marketplace."
By using Giga Cloud Services, you accept this Agreement, and you agree to be bound by all of its terms. If you are entering into this Agreement on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to this Agreement. In that case, “you” and “your” will refer to that company or other legal entity, except where context implies it is referring to you as an individual. If you don’t accept the terms of this Agreement, you cannot use any of Giga Cloud Services.
To the extent that there is a conflict between this Agreement and any other documents executed between you and GigaCloud, including any Purchase Order or Statement of Work between you and GigaCloud which references this Agreement, the provisions of this Agreement will govern, unless you agree otherwise with GigaCloud in a written agreement.
You should read all the relevant terms and conditions carefully. GigaCloud may amend, restate, extend, renew or otherwise modify any Terms at any time.
3.1. Types of Service. As described further down in this section, we offer different services, provided by either our own company or through outside vendors (“Vendors”). These services can be provided through GigaCloud Marketplace. Services include but are not limited to digital services (like quote comparison or online sales for Sellers) and physical services (like fulfillment services and shipment transportation services.)
3.1.1. Services for Product Buyer. A company that chooses to compare, buy, and/or manage the purchase of goods through the GigaCloud Marketplace is a “Product Buyer.” If you are a Product Buyer, you can use the GigaCloud Marketplace to search for interested items, obtain quotes, place the order, confirm the purchase, manage payment, and/or arrange the shipment and warehousing.
3.1.2. Services for Product Sellers. If you provide, offer to sell, and sell goods on GigaCloud Marketplace, you are a “Product Seller,” and you engage in “Selling.” Although GigaCloud is not a Seller nor a party to any agreement between a Product Seller and a Product Buyer, we help you manage your rates, calculate prices, market your products on GigaCloud Marketplace, receive orders on your behalf, act as your collection agent to collect payments via the GigaCloud Marketplace. We also provide fulfillment services and arrange for shipping services for your goods.
3.2. We will sometimes use sub-contractors or other third parties as part of the GigaCloud Services. When we do so and save for the services, GigaCloud Marketplace only acts as an agent; we will always remain responsible for all of our obligations under this Agreement.
3.3 Representations and warranties. By entering into this Agreement, you represent, warrant, and agree that (i) you have full power and authority to accept the Terms, to grant the license and authorization, and to perform the obligations hereunder; (ii) your access and use the GigaCloud Marketplace, and GigaCloud Services will be for business purposes only; (iii) all documents and information you provided to GigaCloud, are true and accurate in all respect and not misleading in any respect and (iv) for users who are business entities, the address you provide when registering is the principal place of business of your business entity. For purposes of this provision, a branch or liaison office will not be considered as a separate entity, and your principal place of business will be deemed to be that of your head office.
4.1. Agreement. Given the dynamic nature of our business and industry, we may modify this Agreement at any time, at our sole discretion. If we do so, we will let you know either by posting the revised Agreement on the Site, posting a notice on the Site, or through other communications. Therefore, please review changes to this Agreement at the beginning of each calendar quarter and let us know by the end of that calendar quarter if any changes are not acceptable and you wish to terminate your relationship with us. Otherwise, changes will become binding at the end of the calendar quarter following the change. If you do not agree to be bound by the modified Agreement, you will continue to be bound by any existing obligations under the agreement that was in place when you entered into an agreement for those services; however, you will not be able to use GigaCloud Marketplace otherwise.
4.2. GigaCloud Services. As part of our efforts to continually improve the GigaCloud Services, we may change or discontinue any aspect of the GigaCloud Services at any time at our sole discretion. For example, we may remove a feature that users do not use very often or add new features.
5.1 Accounts and Users:
5.1.2. GigaCloud Marketplace User Registration: You must create an account (“Account”) to use specific GigaCloud Marketplace and GigaCloud Services features. You can register for an Account via the Site or the GigaCloud App, if any. From time to time, we may also enable registration through your Account with certain third-party services such as LinkedIn (each, an “SNS Account”). If you choose the SNS Account option, we will create your Account by extracting from your SNS Account certain personal information. This includes your name and email address and other personal information that your privacy settings on the SNS Account permit us to access. You must provide us with accurate, complete, and up-to-date information for your Account, and you agree to update such information, as needed, to keep it accurate, complete, and up-to-date. You agree that you won’t disclose your Account password to anyone, and you will notify us immediately of any unauthorized use of your Account. You’re responsible for all activities that occur under your Account, whether or not you know about them.
5.1.3. Business Accounts. If you are a business, you may create a “Business Account” for a group of Accounts for your employees and/or independent contractors providing services to your business (typically all having the same @yourcompanyname.com email address). Each employee or independent contractor must have his/her own Account, and you can designate particular employees as administrators of the Business Account (each, a “Business Account Administrator”). Business Account Administrators can allow employees and independent contractors who hold Accounts to be part of the Business Account. Each employee or independent contractor who is accepted into the Business Account is then an “Authorized User.” You may also authorize any of your employees or independent contractors with an @yourcompanyname.com email address to create an Account as part of your Business Account. You are responsible for all actions taken under an Authorized User’s Account, whether or not such action was authorized by an Authorized User. In addition, you are responsible for the security of each Authorized User’s Account. Therefore, you will not share (and will instruct each Authorized User not to share) such Account details with any other person or entity or otherwise permit any other person or entity to access or use the GigaCloud Marketplace.
5.2 Intellectual Property:
5.2.1. GigaCloud IP: Subject to this Section 5.2, you represent and warrant that you exclusively own all rights, title, and interest in and to any text, data, images, information, or other materials posted, generated, provided, or otherwise made available by you through the GigaCloud Marketplace (“Customer Content”), including all Intellectual Property Rights in that Customer Content. You are solely responsible for the accuracy, quality, integrity, legality, and reliability of all the Customer Content that you (or any Authorized User) submit to the GigaCloud Marketplace. By making Customer Content available through the GigaCloud Marketplace, you hereby grant GigaCloud a non-exclusive, transferable, sublicensable, worldwide, royalty-free license to access, process, analyze, store, use, copy, and modify your Customer Content in connection with operating the GigaCloud Marketplace and providing the GigaCloud Services.
5.2.2. Customer IP:
22.214.171.124. Customer Content: Subject to this Section 5.2, you represent and warrant that you exclusively own all rights, title and interest in and to any text, data, images, information or other materials posted, generated, provided or otherwise made available by you through the Giga Cloud Platform (“Customer Content”), including all Intellectual Property Rights in that Customer Content. You are solely responsible for the accuracy, quality, integrity, legality and reliability of all the Customer Content that you (or any Authorized User) submit to the Giga Cloud Platform. By making Customer Content available through the Giga Cloud Platform, you grant to Giga Cloud a non-exclusive, transferable, sublicensable, worldwide, royalty-free license to access, process, analyze, store, use, copy, and modify
your Customer Content in connection with operating the Giga Cloud Platform and providing the Giga Cloud Services.
126.96.36.199. Anonymous Data and Reference Data.
You grant us the right to use Customer Content to generate anonymous, statistical data based on such Customer Content (for example, an average price calculated across multiple Customers without naming those Customers), which will not identify you (“Anonymous Data”) and to use such Anonymous Data in any manner in which we see fit, including selling such Anonymous Data. This Anonymous Data is not Confidential Information for purposes of this Agreement and is owned by GigaCloud. Similarly, to improve the GigaCloud Services for you and others, GigaCloud may make use of reference data, which is by its nature is not confidential or proprietary, including, but not limited to, formats of industry tariffs or tenders (i.e., column structures with no pricing data), carrier public surcharge data, carrier public “rack rate” prices, fee codes, commodity codes, public service schedules, and names/web sites of corporations (“Reference Data”) and this Reference Data is not Customer Content for purposes of this Agreement.
5.2.3. Software License:
Most GigaCloud features are provided to you as software-as-service accessible via the Site, but in certain situations, we may provide software to install on your devices (“Installed Software”). We grant you a worldwide, non-exclusive, non-transferable, and non-sublicensable license to download and install a copy of any Installed Software on a mobile device or computer that you own or control, and to run such copy of Installed Software solely in conjunction with your use of the GigaCloud Services. You agree not to (i) copy the Installed Software, except for making a reasonable number of copies for backup or archival purposes; (ii) distribute, transfer, sublicense, lease, lend or rent the Installed Software to any third party; (iii) reverse engineer, decompile or disassemble the Installed Software; or (iv) make the functionality of the Installed Software available to multiple users (where the Installed Software is designed for a single user) through any means; and (v) use the Installed Software in any way other than the way it is intended to be used. In addition, you agree not to modify or create derivative works based on the Installed Software; however, If you stop using the GigaCloud Services, you agree to uninstall all Installed Software copies on your devices immediately.
5.2.4. Trademark License: We grant you a non-exclusive, non-transferable, non-assignable, royalty-free, worldwide license, without the right to grant sublicenses, to use the “GigaCloud” name and logo on your list of vendors or list of technologies you use. All goodwill associated with the use of such name and logo inures to the benefit of GigaCloud. In addition, you grant us a non-exclusive, transferable, assignable, royalty-free, worldwide license to list your name and logo on GigaCloud’s list of customers (whether in a general customer list or a list of customers for a specific product, service, or sector) and to publish your reviews. All goodwill associated with the use of your name and logo inures to your benefit.
5.2.5. Data License: From time to time, we may make available certain industry data such as indicative pricing data, whether through our Marketplace or not (“GigaCloud Data”) or otherwise, and in such event, we may sell a non-exclusive, non-transferable, non-assignable, royalty-free license to you to copy and publish (but not modify) such GigaCloud Data, subject to the terms and conditions of such license. In addition, any GigaCloud Data displayed on GigaCloud Marketplace or associated sites may be used by you provided that you clearly acknowledge GigaCloud as the source of such data together with a prominent link to GigaCloud Marketplace with every copy of the GigaCloud Data that you make, and also agree to fulfill any other GigaCloud conditions communicated to you governing the use of this GigaCloud Data.
5.2.6. Reservation of Rights: Reservation of Rights. We reserve all rights in and to Intellectual Property Rights, Software, GigaCloud Materials, and GigaCloud Content not expressly granted to you under this Agreement.
5.3. Data Maintenance and Backup Procedures. We know how important your data is to you. We will use commercially reasonable efforts to store, secure, and backup your Customer Content. We will follow our standard storage, backup and archival procedures for all Customer Content submitted to the GigaCloud Marketplace. In the event of any loss or corruption of Customer Content, we will use our commercially reasonable efforts to restore the lost or corrupted Customer Content from the latest backup of such Customer Content maintained by us. WE WILL NOT BE RESPONSIBLE FOR ANY LOSS, DESTRUCTION, ALTERATION, UNAUTHORIZED DISCLOSURE, OR CORRUPTION OF CUSTOMER CONTENT CAUSED BY ANY THIRD PARTY. OUR EFFORTS TO RESTORE LOST OR CORRUPTED CUSTOMER CONTENT PURSUANT TO THIS SECTION 5.3 WILL CONSTITUTE OUR SOLE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY LOSS OR CORRUPTION OF CUSTOMER CONTENT IN CONNECTION WITH THE GIGACLOUD SERVICES AND GIGACLOUD MARKETPLACE.
6.1. Buying Products:
6.1.1. Quotes: You can use the GigaCloud Marketplace to look for goods offered by Product Sellers and to request price quotes and related terms for the purchase of the goods (“Quotes”).
6.1.2. Representations and warranties: If you are a Product Buyer, by using the GigaCloud Services you represent and warrant to GigaCloud and Product Sellers that (i) you hold all the necessary authorization to legally procure any goods that you buy and (ii) products you acquire on the GigaCloud Marketplace or through GigaCloud Services will be for resale purposes only.
6.2. Accepting Quotes:
6.2.1. Orders: When you accept a Quote, we create an “Order” on your behalf, which is a legally binding sales agreement between you and the Product Seller who provided that Quote. The ownership of the product shall be transferred to the Buyer once the Order is created. Product Sellers, not GigaCloud, are solely responsible for fulfilling the Orders. You acknowledge that the Seller may engage GigaCloud or other third-party service providers in fulfilling and shipping the Order, but sellers are solely responsible for fulfilling and shipping the order. The identity of the Product Seller will be clearly marked on the Quote. As a Buyer, you agree to accept any terms, conditions, rules, and restrictions associated with such goods imposed by the Product Seller. You acknowledge and agree that you, and not GigaCloud, will be responsible for performing the Buyer’s obligations of the Order and any other contracts with Sellers.
6.2.2. Grace Period: From time to time to improve the usability of the GigaCloud Marketplace, and in our absolute discretion, we may set a grace period of a specified duration (for example, 24 hours) after an order is made (“Grace Period”), during which either you or the Product Seller may cancel the Order for any reason, and in the event of such a cancellation, you and the Seller will have no further responsibility to one another for the canceled Order. If a Grace Period applies, we will state this clearly at the time that the Order is made.
6.3. GigaCloud is Not the Seller. We help you find Quotes from Product Sellers, but we are not a Seller, and we do not sell goods. Sellers are not agents, contractors, or otherwise affiliated entities of GigaCloud. We do not endorse any Sellers, and we do not in any way supervise, direct or control a Seller’s performance of selling goods, nor do we warrant that any Seller will meet your expectations in the quality of the goods. We are not obliged to conduct background checks on any Product Seller, but we might do so on a discretionary basis. In order to assist you, we may publish reviews of Products Sellers or particular Sellers from time to time. Still, we do not guarantee the accuracy of any reviews and warn you that reviews can be misleading. Your access to and use of the GigaCloud Services is at your own risk, and we encourage you to do your own research and due diligence on any Seller with which you may engage through an Order, just like you would if you found a Seller outside of the GigaCloud Marketplace. We act as a collection agent for Sellers, so if you have purchased goods from a Product Seller, GigaCloud will have been authorized by the Product Seller to collect payment.
6.4. Disputes with Sellers. We encourage you to communicate directly with Product Sellers regarding any Orders that you make. If you have any concerns about any Order, you should try to resolve your concerns directly with the Product Seller in question. Suppose you are not able to resolve your concerns with the relevant Seller. In that case, you can make a formal complaint to us, and we will address such complaint as we consider appropriate under the circumstances. If the product is lost, damaged, or the delivery of which was delayed, you may request for GigaCloud’s assistance in filing reimbursement claims to the relevant product sellers or third parties, provided that you should (i) furnish all such information and documents as may be required for such claims; (ii) notify GigaCloud of your intention to file such claim and provide all such required information and documents with 30 days after the actual delivery date, or scheduled delivery date om cases of lost products and delayed delivery. By using GigaCloud Marketplace, you agree that any legal remedy or liability that you seek to obtain for actions or omissions of Product Sellers or other third parties will be limited to a claim against the particular product Sellers or third parties only, and you agree not to attempt to impose liability on GigaCloud or seek any legal remedy from us with respect to such actions or omissions. In no event shall GigaCloud be responsible for any infringement or transaction dispute, including, but not limited to, transaction disputes about quality, safety, breach of warranty, lawfulness or availability of the products or services and the payment from Product Sellers, as well as any intellectual property infringement by Product Sellers.
6.5. Buyer Payment Terms:
6.5.1. GigaCloud as Payment Agent: You agree to pay the Seller for the Products and the logistic service fees associated with an Order. We act as the Seller’s payment agent (also known as an agent of the payee). This means that we collect money from you on behalf of the Seller, which we then pass on to the Seller. At our discretion, we may request in respect of a particular Order that you pay the Seller directly, but any such Order remains an Order made through the GigaCloud Marketplace. We have our own policies and practices regarding how and where we collect money from you and how we pass that money on to the Seller. The terms of the payment policy applying to your Order will be presented to you at the time of making the Order, and there may be further guidelines published from time to time in the Seller’s SOP and Buyers Terms and Conditions.
6.5.2. Quotes: You agree to pay the amounts presented to you in a Quote for an Order you make with a Seller and any other amounts that you owe to the Seller in connection with an Order, including the logistics service fees in respect of the Order. You also agree to provide any documentation reasonably requested by a Seller for the purposes of your Order, and you are responsible for the accuracy and timely submission of such documentation to the Seller, whether that occurs through the GigaCloud Marketplace or otherwise. We will use reasonable efforts to ensure that Quotes displayed on the GigaCloud Marketplace are all-inclusive. However, as we have already explained, each Seller has its own terms and conditions of sale, which will apply to any Order you make with that Seller. You may be charged an amount that is additional to the amount of the Quote in certain circumstances. Similarly, most Sellers will disclaim liability for delays caused by force majeure events, including weather and strikes.
6.5.3. Tax: Value-added tax and/or sales tax (if applicable) are only included if they are listed explicitly in the fee breakdown of an Order.
6.5.4. Changes to Payment Policies. In our continued effort to improve the GigaCloud Services, we reserve the right to make changes to our payment policies and practices at any time, for any reason, and without advance notice to you. We will always make the current payment policy and practice clear at the time of making an Order. We may sometimes, at our discretion, offer different payment options, such as the ability to pay in different currencies or through different payment mechanisms. We may also offer certain Buyers credit to make a payment at a later date. We reserve the right to charge extra fees for these arrangements (“Processing Fees”). If you select these services, your payment obligation with respect to such Processing Fees is direct to GigaCloud, and you agree to pay these Processing Fees to GigaCloud.
7.1 Selling Goods:
7.1.1. Where You Can Sell: If you sell goods, you can use the GigaCloud Marketplace to sell your goods to Product Buyers. As a Seller, you will use your own Account to control which (if any) of your goods are actively offered to Buyers through the GigaCloud Marketplace. You may also have the opportunity to filter which categories of Buyers see Quotes generated for your goods.
7.1.2. Representations and warranties: Suppose you are a Seller by using the GigaCloud Services. In that case, you represent and warrant to GigaCloud and Buyers that you hold all necessary ownership titles, permits, and authorizations to sell the goods you provide. You also understand that given the nature of the business and to comply with applicable laws and regulations, we may be required from time to time to request that you provide us with data about your company or shipments, which we reasonably require for compliance and financial purposes. You agree that continued sales on the Site may be subject to receipt of the requested data. All products displayed and sold on Giga Cloud Platform comply with the laws and regulations of the sales destination and have obtained all relevant product certifications required by the sales destination.
7.2. GigaCloud acts as a facilitator of trade between Buyers and Sellers, and in this capacity GigaCloud provides you with the following services and also acts as your collection Agent:
7.2.1. GigaCloud will:
188.8.131.52. Automate generation of your price quotes based on the information (for example, tariffs) you provide via your use of the GigaCloud Marketplace;
184.108.40.206. Advertise and promote your goods on the GigaCloud Marketplace, subject to the configuration options you choose;
220.127.116.11. Facilitate some communication or document exchange between you and the Buyer;
18.104.22.168. Act as your Collection Agent to collect payment in connection with an Order, including logistics service fees from Buyers on your behalf (also known as an agent for payee). By accepting this Agreement, you appoint us as your limited agent just for the purposes of collection. Once we collect payment due, you agree that you have no claims against the Buyer for such payment. Contract with Buyer: If a Buyer engages you by making an Order, the Order agreement and any subsequent agreement that you enter into with the Buyer will be between you and the Buyer only. We do not act as your insurer, broker, contracting agent, or another representative. You acknowledge and agree that you, and not GigaCloud, are and will be responsible for selling the goods and performing your other obligations under any agreements with Buyers. We are not a party to such agreements and disclaim all liability arising from or related to such agreements.
22.214.171.124. Provide optional fulfillment services to you in respect of orders on GigaCloud Marketplace and other third-party Marketplaces. GigaCloud Marketplace shall provide fulfillment services to you as an independent contractor. Such fulfillment services include automated fulfillment of orders, administration, and monitoring by you via an administrative Internet portal. Upon Buyer’s payment of the logistic service fees, you will be deemed to have instructed GigaCloud to provide the said fulfillment services.
7.2.2. No Endorsement of Buyers: No Endorsement of Buyers. We do not endorse any Buyers. We are not obliged to conduct background checks on any Buyer, but we might do so on a discretionary basis, and we may vet particular Buyers from time to time. Your access to and use of GigaCloud Marketplace and GigaCloud Services is at your own risk, and we encourage you to do your own research and due diligence on any Buyer with which you may engage through an Order, just like you would if you found a Buyer outside of GigaCloud Marketplace.
7.2.3. No Endorsement of Sellers: We do not endorse any Product Seller, and using the GigaCloud Marketplace or Services does not mean that you or your goods are endorsed in any way by us. We do not necessarily conduct background checks on any Seller, but we reserve the right to do so on a discretionary basis. You agree to cooperate with us and provide us with all information we request from you in the event that we decide to conduct a background check on you and accurate information for us to place in your profile in the GigaCloud Marketplace. You are not an agent, contractor, employee or affiliated entity of GigaCloud, and we do not in any way supervise, direct, or control your sale of goods.
7.3. Disputes with Buyers. Disputes with Buyers shall be governed by the relevant provisions in the Seller’s SOP. By using GigaCloud Marketplace, you agree that any legal remedy or liability that you seek to obtain for actions or omissions of Buyers or other third parties will be limited to a claim against the particular Buyers or other third parties, and you agree not to attempt to impose liability on us or seek any legal remedy from us with respect to such actions or omissions. In no event shall GigaCloud be responsible for any infringement or transaction dispute, including, but not limited to, transaction disputes about quality, safety, breach of warranty, lawfulness or availability of the products or services and the payment from Buyers, as well as any intellectual property infringement by Buyers.
7.4. Marketplace Transaction Fee:
7.4.1. Quote and Applicable Terms: You agree that the price that a Buyer will pay for your goods is the amount specified in the Quote selected by the Buyer. Although the Quotes are generated through the GigaCloud Marketplace, they are still your Quotes, and you are bound by the Quote which the Buyer selects. You must ensure the accuracy and currency of tariffs, data, and other Customer Content provided to us through GigaCloud Marketplace. We encourage you to regularly check and test to ensure that details such as prices, transit time, and terms and conditions are displayed correctly and that the Quotes generated by GigaCloud Marketplace on your behalf for your goods are accurate and meet your requirements.
7.4.2. While we are in no way a party to the Order agreement between you and Buyer, we do want to help Buyers and Sellers to have a more predictable experience when they meet each other on GigaCloud Marketplace. You therefore agree that in certain circumstances, specified by GigaCloud, the terms listed under “GIGACLOUD PRODUCT SELLER’S GENERAL TERMS AND CONDITIONS” will become part of your Quote and therefore of the Order agreement between you and the Buyer, subject to any conflicting terms imposed by you as Seller in a particular Order which will take precedence.
7.4.3. Remittance of Funds: We will charge you a Marketplace Transaction Fee for each Order made with you by a Buyer (a “Seller Fee”). We reserve the right to change the Seller Fees from time to time, but we will notify you of any changes in advance of their implementation. We will invoice you for the Marketplace Transaction Fee and either (i) deduct the Marketplace Transaction Fee from the payments made by Buyers collected by us on your behalf before remitting funds to you, in which case you authorize us to make such deduction, or (ii) in case we do not make such deduction you agree to pay the Seller Fees within thirty days of the date of an invoice we send you.
7.4.4. Payment Policies: We aim to have our Sellers paid in a timely and convenient manner. Therefore, we have our own policies and practices as to how and when we collect money from Buyers and how we pass that money on to you, and under what circumstances (if any) we guarantee payment to you if a Buyer doesn’t pay us. We reserve the right to make changes to our payment policies and practices at any time and for any reason, but we will notify you of any changes by email and/or posting to the GigaCloud Marketplace.
7.5. Non-Circumvention. When a specific Buyer makes an Order with you through GigaCloud Marketplace (“Initial Order”) for goods, Seller and Buyer both agree that for at least twelve (12) months Seller will not target or directly sell goods to Buyers introduced through GigaCloud Marketplace for 12 months from the introduction of such Buyer and Buyers shall not deal directly with Seller introduced through GigaCloud Marketplace (“Non-circumvention”). We reserve the right to charge you Sellers and Marketplace Fees, to terminate or suspend your Account, or to do any combination of the foregoing in respect of any breach of this Section by you. Non-circumvention will not apply if the same Buyer had ordered goods from Seller’s organization in the six months prior to the Initial Order. Non-circumvention will also not apply if a different part of Seller’s organization sells to the Buyer coincidentally, without being aware of any Order from that Buyer that came through GigaCloud Marketplace, or if the sale is the result of a general solicitation which would have occurred irrespective of whether Seller and Buyer were previously introduced by GigaCloud Marketplace. Non-circumvention will not apply with respect to selling goods that are not offered through GigaCloud Marketplace.
8.1. Confidential Information. “Confidential Information” means: (i) GigaCloud Materials and GigaCloud Content; (ii) Customer Content; (iii) any business or technical information that a party discloses to the other party and designates as “confidential” or “proprietary” at the time of disclosure; and (iii) any information that, due to its nature or the circumstances of its disclosure, the receiving party knows or has reason to know should be treated as confidential or proprietary.
8.2. Exclusions. Confidential Information does not include information that: (i) is or becomes generally known to the public through no fault or breach of this Agreement by the receiving party; (ii) is rightfully known by the receiving party at the time of disclosure without restrictions on use or disclosure; (iii) is independently developed by the receiving party without the use of the disclosing party’s Confidential Information; or (iv) is rightfully received by the receiving party from a third party, who has the right to provide such information and who provides it without restrictions on use or disclosure. In addition, if a company sets up a Business Account and associates Authorized Users’ Accounts with the Business Account as contemplated in Section 5.1, Customer Content will be accessible by all associated Account holders via the GigaCloud Marketplace and GigaCloud Services, subject to the GigaCloud Marketplace settings created by the Business Account holder. Similarly, data may be shared between linked Business Accounts of affiliated businesses.
8.3. Use and Disclosure Restrictions. Each party will not use any Confidential Information disclosed by the other party except as necessary for the performance or enforcement of this Agreement and will not disclose such Confidential Information to any third party except to those of its employees and subcontractors who have a bona fide need to know such Confidential Information for the performance or enforcement of this Agreement; provided that each such employee and subcontractor is bound by a written agreement that contains use and nondisclosure restrictions consistent with the terms set forth in this Section. Each party will employ all reasonable steps to protect all Confidential Information disclosed by the other party from unauthorized use or disclosure, including, but not limited to, all steps that it takes to protect its own information of like importance. The foregoing obligations will not restrict either party from disclosing such Confidential Information: (i) pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided that the party required to make such a disclosure gives reasonable notice to the other party to contest such order or requirement; (ii) to its legal or financial advisors; (iii) as required under applicable securities regulations; and (iv) subject to customary restrictions, to present or future providers of venture capital and/or potential private investors in or acquirers of such party.
8.4. Order Details. Order Details. Inter-business documents which are used for business purposes such as Quotes, Orders, Invoices and Receipts, and relevant communications will be shared between the applicable Buyers and Sellers as part of the functionality of the GigaCloud Services.
9.1. Acceptable Use. You agree not to do any of the following in connection with your use of the GigaCloud Services:
9.1.1. Post, upload, publish, submit or transmit any Customer Content that: (i) infringes, misappropriates, or violates a third party’s Intellectual Property Rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances.
9.1.2. Use, display, mirror, or frame the GigaCloud Marketplace or any individual element within GigaCloud, GigaCloud’s name, any GigaCloud trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, unless expressly allowed under the terms of this Agreement;
9.1.3. Access, tamper with, or use non-public areas of the GigaCloud Marketplace or GigaCloud computer systems;
9.1.4. Attempt to probe, scan or test the vulnerability of any GigaCloud system or network or breach any security or authentication measures;
9.1.5. Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by GigaCloud or any of GigaCloud’s providers or any other third party (including another user) to protect GigaCloud or GigaCloud Content;
9.1.6. Attempt to access or search GigaCloud, GigaCloud Content or Customer Content, or download GigaCloud Content or Customer Content from GigaCloud Marketplace through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by GigaCloud or other generally available third-party web browsers;
9.1.7. Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other forms of solicitation;
9.1.8. Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing GigaCloud or GigaCloud Marketplace;
9.1.9. Collect or store any personally identifiable information from GigaCloud Marketplace or regarding other users of the GigaCloud Services without their express permission;
9.1.10. Impersonate or misrepresent your affiliation with any person or entity;
9.1.11. Violate any applicable law or regulation;
9.1.12. Encourage or enable any other individual to do any of the foregoing.
9.2. Our Enforcement Rights. Although we are not obligated to monitor access to or use of GigaCloud Marketplace or to review or edit any Customer Content, we have the right to do so for the purpose of operating the GigaCloud Marketplace, to ensure compliance with this Agreement, to comply with applicable law or other legal requirements, or to improve the user experience. We reserve the right but are not obligated to remove or disable access to any Customer Content, or any Account, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any Customer Content to be objectionable or in violation of this Agreement. We have the right to investigate violations of this Agreement or conduct that affects GigaCloud. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law. We may also use third parties, including collection agents, to help us enforce this Agreement.
9.3 Compliance. We comply with all applicable laws and expect GigaCloud Marketplace Buyers and Sellers to do the same. By entering into this Agreement you undertake to comply with all applicable laws, rules, and regulations, including without limitation sanctions, anti-corruption, anti-money laundering, and tax laws in your performance of this Agreement.
GigaCloud respects and complies with copyright laws, and expects its users to do the same. It is our policy to terminate in appropriate circumstances Account holders and users who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. Please see our Copyright and IP Policy for further information.
If you are a Seller, during the term of this Agreement and for one year following termination, you will maintain complete and accurate books and records regarding your use of GigaCloud Services. During this time, we have the right to inspect and audit such books and records for the purpose of confirming your compliance with the terms of this Agreement. Any audit will be conducted by a reputable firm of certified public accountants during regular business hours and in a manner that minimizes interference with your normal business activities. We will not examine records relating to your business generally, independent of your use of the GigaCloud Services. If we discover any payment error in the audit, the party in whose favor the error was made will pay the other the amount of the error. We will pay for the audit unless the audit uncovers payment errors in our favor of five percent (5%) or more of the total amount of Seller Fees paid by you to us under this Agreement. In this case, you must pay for the cost of the audit and all our related expenses.
12.1. Term. This Agreement will commence when you accept its terms, and unless terminated earlier in accordance with the terms of this Agreement, will remain in force and effect for as long as you maintain an account with us.
12.2. Termination of Accounts. We may terminate your access to and use of the GigaCloud Marketplace, including your Business Account or Account, at our sole discretion, upon 90 calendar day notice. However, given the importance of maintaining the integrity of our Marketplace for all users, if we have reason to suspect abuse or a substantial breach of this agreement, we may terminate your Account at any time at our sole discretion and will only provide notice if we feel it is reasonable and feasible to do so. You may cancel your Account at any time by sending an email to us at [email protected] or by using the cancellation feature on the GigaCloud Marketplace.
12.3. Effect of Termination. Upon the expiration or termination of this Agreement, you will no longer be able to access and use GigaCloud Marketplace or GigaCloud Services and each party will promptly return to the other party or destroy all Confidential Information of the other party in its possession or control.
12.4. Orders that are Still in Process. If you are a Seller, in the event that upon the expiration or termination of this Agreement, a Buyer has a copy of a valid unexpired Quote from you, and wishes to place an Order, or the performance of Freight Services and /or purchase of goods under an Order made through the GigaCloud Marketplace is ongoing, the expiration or termination of this Agreement will not affect the terms of such Quote or Order. Sellers are obligated and agree to carry out the obligations specified in such Order to completion in accordance with the terms of the agreement between the Seller and Buyer for the Order in question, and Buyers are obligated and agree to fulfill their obligations under such Order, including payment obligations to us pursuant to Section 7.5(a).
12.5. Survival. The rights and obligations of the parties contained in the following Sections will survive termination of this Agreement or any Statement of Work: Intellectual Property; Data Maintenance and Backup Procedures; Disputes with Sellers; Disputes with Buyers; Non-Circumvention; Mutual Non-Disclosure Agreement; Our Enforcement Rights; 13 (Audit); Effect of Termination; Orders that are Still in Process; Survival; Warranties; Indemnity and Limitation of Liability.
THE GIGACLOUD MARKETPLACE AND GIGACLOUD SERVICES ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WE MAKE NO WARRANTY THAT USING GIGACLOUD OR GIGACLOUD SERVICES WILL RESULT IN HIGHER NUMBERS OF CUSTOMERS OR INCREASED REVENUE FOR YOU OR YOUR BUSINESS. WE MAKE NO WARRANTY THAT THE GIGACLOUD MARKETPLACE OR GIGACLOUD SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS.
You will indemnify, defend and hold GigaCloud and its officers, directors, employee, and agents harmless, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (i) your access to or use of GigaCloud Marketplace or GigaCloud Services, (ii) your Customer Content, or (iii) your violation of this Agreement.
NEITHER GIGACLOUD NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE GIGACLOUD SERVICES OR GIGACLOUD MARKETPLACE WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE GIGACLOUD SERVICES OR GIGACLOUD MARKETPLACE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT GIGACLOUD HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED IN ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES SO THAT THE ABOVE LIMITATION WILL APPLY TO YOU TO THE DEGREE ALLOWED BY LAW.
IN NO EVENT WILL GIGACLOUD’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE GIGACLOUD SERVICES OR GIGACLOUD MARKETPLACE EXCEED THE AMOUNTS YOU HAVE PAID TO GIGACLOUD FOR USE OF THE GIGACLOUD SERVICES IN THE 12 MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO LIABILITY, OR $10,000 IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO GIGACLOUD, AS APPLICABLE.
THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE COMMERCIAL AGREEMENT BETWEEN GIGACLOUD AND YOU.
16.1. Assignment. You may not assign or transfer this Agreement, by operation of law or otherwise, without our prior written consent. Any attempt by you to assign or transfer this Agreement without such consent shall be void. We may assign or transfer this Agreement without restriction or your consent to an affiliated company or to a successor or acquirer, as the case may be, in connection with a merger or acquisition or the sale of all or substantially all of our assets. Subject to the foregoing, this Agreement will bind and benefit the parties and their respective successors and assigns.
16.2. No Election of Remedies. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will not be deemed an election of remedies and will be without prejudice to its other remedies under this Agreement or available at law or in equity or otherwise.
16.3. Governing Law. This Agreement will be governed by and construed in accordance with the laws of Hong Kong, excluding its body of law controlling conflict of laws. Any disputes will be resolved exclusively by binding arbitration in Hong Kong.
16.4. Severability. If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, the remaining provisions of the Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.
16.5. Notices. Any notices or other communications provided by us under this Agreement, including those regarding modifications to this Agreement, will be given: (i) via email; or (ii) by posting to the GigaCloud Marketplace. For notices made by email, the date of receipt will be deemed the date on which such notice is transmitted. Notices to GigaCloud should be sent to [email protected].
16.6. Waiver. Our failure to enforce any right or provision of this Agreement will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by our duly authorized representative.
16.8. Language. This Agreement may be translated from time to time for your convenience, but the English language version of the Agreement is the binding version.
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