TMXGlobal Express Service Limited
1. Scope and definitions for the Contract
TMX Duka is officially operated in Kenya by TMXGlobal Express Service Ltd which is a limited liability company duly incorporated in Kenya, registration no. PVT-AJUP2E5 with its main office located at View Park Towers, 9th Floor, Nairobi.
TMX Duka is in the business of providing and facilitating online shopping experience via its online marketing platform www.tmxduka.com.
The Vendor intends to sell products on TMX Duka Shop’s platform and TMXGlobal Express Service Ltd agrees to allow the Vendor to use its website platform for this purpose on the terms on conditions contained herein below.
The Parties have thus agreed to enter this Agreement in good faith and based on the terms and conditions hereunder set out.
This contract expressly supersedes prior agreement or arrangements with the Vendor.
Guidelines available in Merchant Epicenter may apply to certain services, such as operating model, rules, activity or promotion, and such guidelines will be disclosed in Merchant Epicenter. Guidelines are in addition to, and shall be deemed a part of, the present Contract for the purposes of the applicable Operating Model, Rules and Services. Guidelines shall prevail over this Contract in the event of a conflict with respect to the applicable Services.
- Customer Satisfaction as the common interest of both parties: By signing this contract, both parties agree that customer satisfaction is the ultimate interest guiding the commercial actions and behaviors of both parties.
- Acceptance of the contract: Every transaction of the Vendor on TMX Duka’s platform is bounded to the acceptance of all the terms of this contract as well as the details, annexes and appendices mentioned in this contract and accessible on www.tmxduka.com and to Vendor’s renunciation to claim any of its own general terms and conditions of sales.
- Definition of services: TMX Duka runs and operates an online platform that allows Vendors to sell their products and provides pick up, and delivery services.
- Limitation of TMX Global Limited’s services: The service provided by TMX Global Limited is limited to referring customers to the Vendor and accepting orders and payments on their behalf, as well as a supporting range of logistics and marketing services, to be requested and purchased by the Vendor. This support is remunerated via the agreed upon level of commission and service fees.
- Duration and Termination of contract: This agreement is valid as soon as it is signed by the Vendor. It remains valid until terminated by either party in accordance with the termination clause herein.
DEFINITION OF THE TERMS OF THE CONTRACT AND TERMINOLOGY
In this contract, there are technical wordings specific to e-commerce sector. In this Agreement, unless the subject or context otherwise requires, the following words and expressions shall have the following meanings:
- 3PL: third party logistics provider, a logistic partner providing the array of logistics services sold by TMX Duka
- Account Manager: A TMX Global Limited professional employee specialized in supporting commercial growth and relevancy of a Vendor on the platform.
- Announce Price: announce price of the goods as set up by the Vendor or modified by TMX Global Limited in the case of a Promotion for which the Vendors give express written agreement.
- Announce: is a product listed by the Vendor on Merchant Epicenter in order to be sold on TMX Online Shop. Announce is made of the product name, the product description, pictures of the product and the selling price of the product.
- Business Day: from Monday to Friday from 8:30 a.m. to 6.00 p.m. and Saturday from 10:00 a.m. to 2:00 p.m. during which commercial banks are open for business other than during public holidays in Kenya.
- Cancellation: The act of stopping fulfillment of an order that has not yet been shipped. This can be done by both Vendor and TMX Global Limited on behalf of either Vendor or Customer, upon request or if fulfillment guidelines are not respected by the Vendor. Such cancellations by vendors can also be called an out of stock (OOS) as per how it is communicated to TMX Global Limited customers.
- Commission: means the fee paid to TMX Duka for sales made of the Vendors goods on the Platform which fee is based on a percentage of the sale price.
- Competitor: Any private or corporate person, who directly or indirectly, engages in the sale of goods and services on the internet in KENYA. For the avoidance of doubt, any person whose direct or indirect business is only partially similar to the aforementioned would still be deemed to be a Competitor.
- Conditions: means the general terms and conditions set out in this document and (unless the context otherwise requires) any special terms and conditions agreed in writing between the Vendor and TMX Global Limited
- Contact Information: All the correct and up to date information given by the Vendor to allow TMX Global Limited to reach him or her: one single e-mail address, phone number, Tax ID/PIN number and physical address.
- Contract: The contract entered into between TMX Duka and the Vendor to use TMX Global Limited’s Platform for the purchase and sale of the Vendor’s Goods to customers, howsoever formed or concluded. A Contract shall include any exhibits and documentation expressly referenced therein.
- Customer means anyone that makes use of the TMX Duka Online Platform to purchase goods.
- Customer Service: Customer Service provided by TMX Global Limited to manage the After Sales relationship, the confirmation of orders and the relationship between the final customer and TMX Global Limited.
- Customer: Customer shopping on TMX Global Limited platform. TMX Duka is the sole owner of the relationship with the customer. The Vendor is therefore forbidden to use any customer information gathered while operating as a Vendor for its own private or commercial use.
- Final Delivery: Transfer of the ownership of the product from the Vendor to the final customer.
- Force Majeure: has the meaning ascribed in clause VI(a)(10) and (b)
- Fulfillment by Vendor (Drop Shipping): The Vendor is responsible for holding its stock and for providing items in a timely manner and abiding by packaging Guidelines to TMX Global Limited when an order has been placed by the customer and confirmed by TMX Global Limited. The vendor can use logistics services from TMX Global Limited to support this process.
- Guidelines: Set of criteria qualifying the rules present in this contract and that the Vendor must respect regarding TMX Global Limited operating model. The Guidelines’ purpose is to achieve the best possible results with regard to ensuring full customer satisfaction. Guidelines also give details and pricing of the various services TMX Global Limited can offer to support that mission. Guidelines are available in the footer of Merchant Epicenter under the tab TMX Duka Vendor Guidelines
- HUB: A location owned, or operated by TMX Global Limited or one of its logistics partners where the vendor can drop items and when eligible, pick up returned items.
- In Writing/Written: includes electronic mail to the e-mail address designated by TMX Global Limited for the purpose of communication between TMX Global Limited and the Vendor, and any comparable means of communication, so long as such form results in a permanent record being made.
- Inbound: Reception department of the products by TMX Global Limited, and the action of accepting and registering stock brought in the Warehouse.
- Intellectual Property: Includes any patent, copyright, registered or unregistered design, design right, registered or unregistered trademark, service mark or other industrial or intellectual property right, as well as applications for any of the above.
- TMX Online Shop First (also known as Fulfillment by TMX Duka): The Vendor’s stock is stored in TMX Global Limited’s warehouse before it is sold. The ownership of the stock remains with The Vendor and TMX Global Limited’s acts purely as a guardian of this stock. Items are stored, packed and delivered by TMX Global Limited’s logistics provider.
- Major Commercial Event: A commercial event during which TMX Global Limited will invest in marketing to generate traffic. During those events, TMX Global Limited will promote the best offers from Vendors with the best performance (special prices, promotion)
- Promotion Feature: is available from the main page of the Merchant Epicenter and allows the Vendor to submit products to a promotion. TMX Global Limited then evaluates the submitted products and selects the best of them. By joining a promotion the Vendor authorizes TMX Global Limited to modify the listing price of the submitted products.
- Promotion: is a specific and extraordinary commercial event organized by TMX Global Limited during which TMX Global Limited will highlight to its customers certain products sold at specifically attractive conditions or prices. This event can be announced via Merchant Epicenter and TMX Global Limited may ask its Vendors to list more products online. The submission of the products is done through the promotion feature in Merchant Epicenter.
- Ready to Ship: The product is signaled as being physically available, packed according to packaging Guidelines and ready to be transferred to TMX Global Limited for delivery.
- Merchant Epicenter Account: The dedicated internet portal for which the access is provided by TMX Global Limited to the Vendor to manage his/her products, announces, orders, pricing, and sales operations.
- Shop: all the products listed by the Vendor on TMX Global Limited
- SKU: stock keeping unit describing a unique type of item being sold.
- Special Price: a discounted price that is lower than the original price of the listed product. A special price has a start and an end date.
- Tax/Personal Identification Number (PIN): Official Tax/Personal Identification Number or any valid tax authorities’ reference attached to the business of the vendor and registered to legal national authorities.
- Value Added Services: Logistics, commercial and marketing services provided by TMX Global Limited and its partners and affiliates to the Vendor and for which the Vendor can subscribe to for a fee.
- VAT: Value Added Tax as applied per the applicable tax authorities.
- Vendor Support Center: support service provided by TMX Global Limited to solve the issues faced by vendors as well as to help vendors grow their business.
- Warehouse: The warehouse is a facility of TMX Global Limited where all the products in TMX Online Shop First (Fulfillment by TMX Online Shop) are stored and where orders are processed.
- Warranty: As defined in annex 1
- WHT: Withholding taxes as applied per the applicable tax authorities.
c. MODIFICATION AND TERMINATION OF THE CONTRACT
- Termination of contract by the Vendor: This contract remains valid for one year extendable by tacit agreement until one of the parties terminates it. Vendor may terminate this Contract by serving a thirty (30) Days’ notice in writing with acknowledgement of receipt. In these 30 days, the parties will continue to respect all the terms of this agreement.
- Termination of contract by TMX Global Limited: TMX Global Limited may immediately terminate this contract if the Vendor fails to meet level of operational performance considered as bare minimum to provide a satisfactory Customer experience of purchase on the platform and/or breaches any clauses in this contract. The performance levels and the way they are being measured are available in the Guidelines section of the Merchant Epicenter.
- Severability: Both Parties acknowledge and agree that the provisions of this Agreement are severable and if any provision in this Agreement is held invalid or unenforceable under any competent jurisdiction, such invalidity or enforceability will be restricted only to the this provision and will not in any manner affect the validity or enforceability of the other provisions in this Agreement. Both parties will endeavor to replace the invalid clause by a valid one that reproduces as closely as possible the intended economic meaning of the invalid clause.
- Modification of the contract by TMX Global Limited: TMX Global Limited reserves the right to make changes to this contract by giving a 2 weeks’ notice to the Vendor through email.
The vendor may raise any concerns they may have within this 2 week period and if none are raised in writing it will then be assumed that the Vendor has accepted the changes.
- Modification of the Guidelines available in Merchant Epicenter: TMX Global Limited may amend terms related to the Guidelines from time to time. Amendments will be effective upon posting updated Guidelines in Merchant Epicenter. The Vendor’s continued access or use of the Merchant Epicenter after such posting constitutes the Vendor’s consent to be bound by the Guidelines, as amended in accordance with clause 4 above.
d. JURISDICTIONAL COMPETENCY AND GOVERNING LAW
- Governing Law: This Agreement is governed and interpreted in accordance with the law of KENYA.
- Permanency of contractual obligations: Parties to this Agreement shall continue to uphold their respective contractual obligations at all times until the resolution of any conflict or dispute in accordance with the terms of this Agreement.
- Dispute Resolution: Should any dispute arise between the parties with regard to the interpretation, rights, obligations and/or implementation of any one or more of the provisions of this Agreement, the parties shall in the first instance attempt to resolve such dispute by amicable negotiations.
- Should such negotiations fail to achieve a resolution within Fifteen (15) days, either party may declare a dispute by written notification to the other, whereupon such dispute shall be referred to arbitration under the following terms:-
- Such arbitration shall be resolved in accordance with the provisions of the Kenyan Arbitration Act 1995 (as amended from time to time)
- The tribunal shall consist of one arbitrator to be agreed upon between the parties failing which such arbitrators shall be appointed by the Chairman for the time being of Chartered Institute of Arbitrators (Kenyan Chapter) upon the application of either party.
- The place and seat of arbitration shall be Nairobi and the language of arbitration shall be English;
- The award of the arbitration tribunal shall be final and binding upon the parties to the extent permitted by law and either party may apply to a court of competent jurisdiction for enforcement of such awards;
- Notwithstanding the above provisions of this clause, a party is entitled to seek preliminary injunctive relief for interim or conservancy measures from any court of competent jurisdiction pending the final decision or award of the arbitrator.
I. Rights and Obligations of the different parties related to the operating model
- From TMX Global Limited to the Vendor
- TMX Global Limited will communicate to the Vendor using the contact information given by the Vendor to TMX Global Limited when registering on Merchant Epicenter. The Vendor is responsible for updating TMX Global Limited’s [Seller Centre and account manager] within 24 (twenty four) hours in case of any change in its contact information.
- Every message sent to the Vendor through his or her registered email in the Merchant Epicenter account or via Merchant Epicenter which didn’t receive an answer or written objection within 2 weeks will be deemed to have been accepted and form part of the agreement between TMX Global Limited and the Vendor.
ii. From the Vendor to TMX Global Limited
- The Vendor will communicate to TMX Global Limited using emails, phone, or mobile messaging, in case the Vendor has is followed up by an account manager.
- Emails and phone contact information can be found up to date on the Merchant Epicenter account.
(2) The Vendor agrees to share diligently all the information needed regarding his or her business and operations in order to help TMX Global Limited resolve his or her issues with operating on the platform. The information shared must be as exhaustive and structured as possible.
i. TMX Global Limited’s rights and obligations
- Product Listing and Content Management: TMX Global Limited will present on the website the products listed by the Vendor that passed Quality Control. The Vendor will be responsible for listing their own products.
The Vendor grants to TMX Global Limited the perpetual rights to use, reproduce, modify, adapt, publish, translate and create other content and to distribute the content that the Vendor provides.
In order to maintain its reputation for quality and high standard of service, TMX Global Limited reserves the right to delist the Vendor and to terminate the relationship with the Vendor if the Vendor repeatedly receives bad reviews or complaints or fails to comply with TMX Online Shop standards.
If the Vendor is delisted, TMX Global Limited reserves the right to share the Vendor’s contact information as well as the content the Vendor created on Merchant Epicenter in accordance with the Terms and Conditions and Privacy on the website.
TMX Global Limited offers to the customer the opportunity to evaluate the products on its site. TMX Global Limited will review these evaluations and may publish them.
- Pricing: TMX Global Limited is not entitled to change the prices of the products listed by the Vendor unless during a promotion entered into by the Vendor. Pricing can be adjusted any time by the Vendor for any item sold on his account via Merchant Epicenter, provided that the adjustment is not made after an order has been made for the product.
- Stock Level and Order Fulfillment: TMX Global Limited is authorized to accept binding sales on behalf of the Vendor and will ensure that order data is passed on to Vendor through the Merchant Epicenter within one business day subject to holidays and weekends. TMX Global Limited will process the orders following the Operating Model Guidelines as available in Merchant Epicenter.
- Packaging Guidelines: TMX Global Limited will provide access to the Vendor to packaging Guidelines in Merchant Epicenter. Vendor is responsible for packaging its items unless Vendor decides to subscribe to the packing service provided by TMX GLOBAL LTD. TMX Global LTD may as well provide adapted packaging material for sale on TMX Online Shop. TMX Global Limited may conduct tests and audits of the packaging practices of the Vendor and may refuse to ship an order for which the packaging is not matching the Packaging Guidelines. In such case, penalties may be applicable, as stipulated in the packaging Guidelines.
- Returns: TMX Global Limited will manage the returns of the Vendor following the General Principles Regarding Process of Returned Items mentioned in part II. b. iii. of the present contract and the Return Guidelines available in Merchant Epicenter.
- Promotion Feature: TMX Global Limited controls the placement of promoted products submitted by the Vendor through Merchant Epicenter.
- Payments terms: TMX Global Limited will pay the Vendor for the products sold on TMX Online Shop following the payment terms agreed upon with TMX Global Limited.
- Changes to website content– TMX Global Limited may perform changes to its website content or the services offered, including suspending these services for an unlimited period of time.
- Third Party Provider: TMX Global Limited may use third party service providers to fulfill some part of the services to the Vendor and to the customer.
- Training: TMX Global Limited will provide to the Vendor training material as well as the support needed to enable the Vendor to build the level of competences and to gather the knowledge needed to operate its shop on TMX Global Limited. Trainings are set up in order to educate the Vendor on the use of the Merchant Epicenter. This training may be provided both online or offline. TMX Global Limited reserves the right to charge a fee for certain training programs. Vendors may be required to attend training in order to be eligible to sell on the platform.
- Information ii. Vendor’s rights and obligation
- Product Creation and Listing: The Vendor certifies that the description of the products listed on TMX Duka are true, abide by any law applicable to the promotion of a product to an end customers, and is respectful of the product creation Guidelines as communicated by TMX Global Limited and available from the Merchant Epicenter account.
Every item sold has to be identical to its description on TMXDuka.com and to the images provided. TMX Global Limited may inspect the products given by the Vendor in order to check their conformity with the specifications mentioned by the Vendor on its Merchant Epicenter and with the standards of quality enounced in that agreement. In case of non-conformity with the technical characteristics, with the color, image or in case of technical default, TMX Global Limited will return the product to the Vendor and charge penalties as stipulated in the Guidelines.
The Vendor will indemnify and hold harmless TMX Global Limited of any suit, dispute arising from presenting on the platform illegal information or products, as well as products for which the Vendor does not have a license to sell or distribute.
- Pricing: The Vendor is responsible for setting the prices of its products listed on TMX Online Shop.co.ke. The price must include all relevant taxes and abide by any pricing law in effect for the full duration of the listing. The Vendor ensures that every effort is being made to limit the number of disputes over its products regarding quality and prices.
- Stock Level and Order Fulfillment: The Vendor certifies that for all its products listed on Merchant Epicenter, the stock indicated as available is consistent with its real stock immediately available. The Vendor will process the order as per the Fulfillment Method he or she subscribed for, following the detailed Guidelines available on the Merchant Epicenter.
If not selecting TMX Global Ltd First (Fulfillment by TMX Duka):
The Vendor will process orders and arrange delivery with all reasonable care and diligence the moment receipt of confirmation of sale is received through the Merchant Epicenter. Orders should be confirmed through Merchant Epicenter and dropped off or picked up before the Maximum Fulfillment Time displayed in Merchant Epicenter. Late fulfillment, all vendor cancellations or any actions bringing prejudice to the customer’s purchasing experience will result in penalties applied to the Vendor (See section II. b. iii. of this agreement).
The Vendor will process the orders, prepare the package, the delivery note, the invoice for the customer, and the acknowledgement of receipt including the Electronic Tax Receipt.
The Vendor will dedicate a contact person for the management of its stock on TMX Duka. If for any reason the vendor is unable to fulfill orders, the vendor must turn off all SKUs in his or her store for at least five business days before his or her departure to avoid failure to fulfill new orders.
- Returns of products: The Vendor commits to respecting both the General Principles Regarding Process of Returned Items mentioned in part V. c. of the present contract and the Return Guidelines available in Merchant Epicenter.
- Guarantee of products: The Vendor commits into providing a manufacturer’s warranty guarantee to its products and/or to replace all defective products (Dead on Arrival). The details of the warranty provided for the products must be explicitly stated on the announce.
- Counterfeited products: The Vendor commits to providing only genuine products and to abide by all applicable laws and regulations regarding sale of products to an end customer. Any disrespect of this term may lead to immediate termination of the contract, and the Vendor shall hold harmless TMX Global Limited from any dispute regarding a breach of such laws and regulations
iii. Penalties in case of the non-respect of TMX Duka Quality commitment
Penalties are here to compensate TMX Global Limited for any extra effort required to meet our Mission of providing quality products at affordable prices to Customers, and to protect TMX Duka brand. Penalties will be enforced according to the below Guidelines but are not limited to them and are susceptible to be applied to any behavior in opposition to the Guidelines available in Merchant Epicenter and hurting TMX Duka customer interest and / or the TMX Duka Brand. Financial penalties will be deducted from the payout released to the Vendor according to the payment terms. The following list highlights most common offenses that would likely be subject to penalties:
- Counterfeit products and non-conformity of the products
- Slow fulfillment of orders as per the Guidelines
- Cancellation of orders in case of Vendor default and out of stock
- Not respecting Packaging requirements as listed in the Guidelines
- High rate of Returns of products or lack of compliance with the return policy
The amounts (in case of financial penalties) or procedures (in case of operational penalties) of those penalties are included on the Penalty Guidelines available in Merchant Epicenter and will be deducted from the Vendor payout at the frequency described in the Payment terms.
II. System usage agreement
A. GENERAL CONDITIONS OF USE OF THE MERCHANT EPICENTER
- Rule on the use of the Merchant Epicenter: Every Vendor who wants to list a product to sell through the Merchant Epicenter has to create an account.
A Merchant Epicenter Account is private for the Vendor and cannot be assigned to any third party without the agreement of TMX Global Limited. It is forbidden to use the Merchant Epicenter Account for different points of sales.
- Rules of redaction of product pages: The Vendor commits into publishing announces only on his or her behalf. Without the agreement of TMX Global Limited, the Vendor cannot publish an announcement on the behalf of a third party.
TMX Global Limited reserves the right to:
Erase a product page published by a Vendor on the behalf of a third party without any compensation of the Vendor.
Remove without notice the Merchant Epicenter account and all the products of a Vendor who would not respect this section
To refuse the whole or a part of product page which would contravene terms and conditions of this contract.
To refuse the image proposed by the Vendor for any reason, including but limited to the following reasons:
- The quality of this image does not matching Production Guidelines available in Merchant Epicenter, in terms of quality, and accuracy
- If the image is offensive to the customers or if the image is not ethical.
An announce cannot be used to promote any other thing other than the object of the description.
The announces are classified on TMXDuka.com following a logic of ranking determined solely by TMX Global Limited. Vendors may where applicable purchase premium placement for their products, as detailed in the Merchant Epicenter Guideline to influence such a position.
It is forbidden for the Vendor to publish different announces for the same product. It is also forbidden to publish different announces for the same product under different categories.
- Sensitive and prohibited Goods: The Vendor takes the full responsibility related to the commercialization of the products sold on TMX Online Shop and bears full responsibility for all legal implications related to the damages such products can cause, including but not restricted to, physical and health damages, material damages, and loss of business.
The Vendor, guarantees that when selling sensitive goods (a detailed but not exhaustive list of concerned categories and products are available in Merchant Epicenter) the Vendor enjoys full authorizations to do so as well as respects the storing, processing and selling Guidelines provided by the manufacturer of the product.
The Vendor, if selling items under legal restriction, guarantees that he or she has all the licenses required to sell such products and that all legal requirements attached to the commercialization on such items are followed and
enforced. This may concern registration to the health authority, license to sell, and compliance with storage conditions attached to each items, manipulation rules, and product description legal standards.
If products have a last date of consumption, the Vendor will ensure that for applicable products, they will supply products that have at least 1 year before last date of consumption.
The sale of illegal articles is forbidden and subject to SCHEDULE 1 attached herein:
- Title and description of a product page: The only authorized announces are announces in English. The content related Guidelines available in Merchant Epicenter define authorized practices on the platform.
The title of the product page has to be limited to the name of its product and to its main specifications (Size, color…). All the remaining part of the description should appear in the description.
Every content of the product page should include requirement of the applicable regulation. The product pages are Intellectual Property.
- Price: The only price listed should be the selling price including applicable tax. This price should not be in the title of the product page.
- Photos: The photos included in the product page have to be related with the article or service proposed. It is forbidden to use logos of brands as a picture except in the category “Professional” of the site. It is forbidden to use the photos of other vendors without their approval. Those pictures are protected by Intellectual Property. TMX Global Limited reserves the right to modify the title of the product page for commercial reasons.
b. COMMITMENT AND GUARANTEE OF THE VENDOR RELATED TO THE USE OF THE MERCHANT EPICENTER
- The Vendor ensures that the content on its product pages complies with the legal obligations that apply to the products and the vendor’s business.
The Vendor ensures to TMX Global Limited that the descriptions are within confomity of the manufacturer’s description of the products sold.
Therefore, the Vendor ensures that he or she publishes the product page under his or her entire responsibility (and not that of TMX Global Limited, his or her suppliers, and any other service provider of TMX Global Limited). The Vendor commits into compensating any person who would suffer from the consequences of an illegal announce.
Because of the specificity of its services, TMX Global Limited has to ask personal information about the Vendor.
TMX Global Limited can cooperate with authorities and give the identity of the Vendor to the legal authorities if the content of a product page does not comply with the laws and regulations.
For Vendors located abroad, TMX Global Limited reserves the right to add the mention on the product page of the website which indicates the origin of the product and the relative shipping details.
- If the Vendor chooses a Drop shipping procedure, the Vendor commits into selling only goods that he or she owns or that he or she is entitled to sell. In case of out of stock of the product, the Vendor commits to, withdrawing the product page from its Merchant Epicenter.
- The Vendor accepts that due to the time required to perform Quality Control checks, the product page may not go online instantly.
- The Vendor accepts that data collected on the internet site will be retained by the Internet provider and by TMX Global Limited for statistical use and to answer to demands of any regulators.
- To be acceptable, any complaint will have to precisely indicate the defaults of the product page and to be transferred to TMX Global Limited within 8 days after the creation of the product page.
III. General conditions of transactions and payment between TMX Duka and the Vendor
- GENERAL CONDITIONS OF PAYMENT
- Payment by TMX Global Limited to the Vendor: Payments made to the Vendor are calculated as the sum of the selling price including tax of all items delivered to customers less the sum of the selling price including tax of all items returned within this same period and less commissions and penalties. The Payment terms applicable are described in Payment terms Guidelines. All payments to the Vendor shall be made in Kenya Shillings.
- Payment Option: Payments will be made by either Bank Transfers or Cheque. The vendor must enter their exact and up to date Bank information in the Merchant Epicenter. The payment method may be subjected to change as described in the Payment terms option.
- Invoices: The Vendor has to provide an invoice for the Customer when providing to TMX Global Limited the product to be delivered to the customer.
TMX Global Limited will invoice the Vendor for its commission and for the fees charged for its value added services as well as for the penalties applied. VAT will apply to all invoices and an ETR will be provided with the invoice.
- Payment Calculation: The revenue collected by TMX Global Limited on behalf of the Vendor is based on the orders successfully delivered and paid for by to the customer. The Vendor understands that the items shipped but not delivered at the time of the payment are not included in the payment.
Any sums due to the Vendor hereunder may be applied by TMX Global Limited as a set off against any sums owed by the Vendor to TMX Global Limited, or against any claims of third parties against ECART INTERNET SERVICES LIMITED arising from the Vendor’s performance, under any document.
(5) Documents Required for Payment: Every payment is dependent on having the following documents:
- This contract signed by both parties;
- Any other documents signed by both Vendor and ECART whenever products exchange hands between the two parties.
- The delivery receipt given by TMX Global Limited to the Vendor, signed for each item given to TMX Global Limited
- Sales Report: At the end of each period, TMX Global Limited shall issue via Merchant Epicenter a Sales Report for reconciliation of the sales recorded by the Vendor prior to making payments and covering:
- The products delivered
- The products returned
- The products cancelled
- Any other transaction (Fees, Penalties, Correction entries)
- Payment Schedule: Payment Schedule and delays will follow the rules and agenda available in Merchant Epicenter Guidelines.
- Reimbursement: There is no reimbursement after the execution of the various operational and marketing value added services TMX Global Limited can provide. However reimbursements for any loss or damage will be made on a quarterly basis.
- Price: All prices are indicated in Kenya Shillings, and including tax.
b. COMMISSIONS AND FEES COLLECTED BY TMX Global Limited
- Calculation of Commission: The commissions are calculated as a percentage of the selling price including tax and are invoiced inclusive of applicable taxes. All other fees are invoiced inclusive of VAT., TMX Duka will withhold its commission and fees, inclusive of VAT from the payout made to the Vendor.
- Invoice: On a frequency defined by Payment terms Guidelines, TMX Global Limited invoices the Vendor. This invoice will include the commissions, fees for value added services and penalties owed by the Vendor to TMX Global Limited.
- Adjustment of commissions: TMX Global Limited reserves the right to adjust the percentage commission, providing suitable notice of 14 days is served in advance to the Vendor. TMX Global Limited will duly notify the Vendor through an adequate e-mail notice of any commission changes. This does not cover adjustments that constitute a material change of the contract terms, which would require an additional agreement on the change.
- Adjustment of fees: TMX Online Shop may start charging additional fees for the sale of goods through the TMX Online Shop platform at any point. In the event of the introduction of further fees, the Vendor will be notified prior to their commencement in writing 14 days prior and they will have the option to opt out, if no written objection from the vendor they will be deemed to have accepted the adjustment.
- Effective fee / price: The prices and different fees, of the paying options is the one in effect the day of transaction.
- Commissions collected by TMX Global Limited: All the commissions collected by TMX Global Limited on the products of the marketplace are available on the Merchant Epicenter (Settings >> Vendor’s Profile >> Commissions).
- DIFFERENT TYPES OF ORDERS MANAGEMENT
- Choice of a logistic procedure: the Vendor has a choice between two different logistics procedures: TMX Online Shop First (Fulfillment by TMX Duka) and Fulfillment by Vendor (Drop Shipping or Cross Docking). The Vendor can express their preference and TMX Global Limited will agree on the best way to proceed, considering vendor operations and the product characteristics.
When creating an account on Merchant Epicenter, the vendor is by default operating under Fulfillment by Vendor (Drop Shipping). The Vendor can apply to TMX Duka First through its dedicated account manager or through the Vendor Support Center.
- TMX Online Shop First: A Vendor accepted to TMX Duka First will receive a confirmation Email. After being accepted to TMX Online Shop First, the Vendor may choose through his Merchant Epicenter to put in consignment some part of his or her stock. The Vendor remains the owner of these products during the entire period of deposit. Any opened or damaged products will not be accepted by TMX Global Limited.
TMX Global Limited reserves the right to perform random sampling quality checks before accepting items .TMX Global Limited is responsible for any damage done to the Vendor’s product while in TMX Global Limited’s warehouse.
- Fulfillment by Vendor (Drop Shipping): During a Drop Shipping procedure, the Vendor keeps the responsibility for the management of its stock and provides to TMX Global Limited the product ready to be delivered to the customer. TMX Global Limited or any of its contractors are in charge of the delivery of the product to the final customer.
b. ORDERS MANAGEMENT PROCEDURES
- General principles in case of Drop Shipping: The Vendor has to process the orders according to the training received by TMX Global Limited and to make sure the product is provided to TMX Global Limited in the following way:
The Vendor will have to provide TMX Global Limited with the ordered products on a timeline defined by Guidelines with TMX Global Limited. The order has to be confirmed through the Merchant Epicenter by the Vendor. That way, the Vendor gives confirmation that the product ordered by the customer is available to be transferred to TMX Global Limited and sold.
The Vendor will be able to drop directly his or her products processed in one of the hubs determined by TMX Global Limited. This process is called “Drop-Off”. The Vendor will also be able to have their products “Picked-up” by TMX Global Limited or any of its certified contractors. The Vendor commits to appointing an employee who will be the main contact person between the Vendor and the logistics service of TMX Global Limited. If the employee is not available, the Vendor will provide an alternate contact person to make sure that the orders are processed. The Vendor commits to retrieving items that have been processed for return within the timeline outlined in the Return Guidelines. Failure to do so may result in forfeiture of ownership, as stipulated in the Guidelines. The Vendor commits to processing the order within 1 working day from its confirmation. The Vendor also commits to handing over their items for shipping within 2 business days from order confirmation.
TMX Global Limited commits in turn to processing the orders handed over by the vendors.
- Transfer of ownership of the good: The Vendor will send to TMX Global Limited’s warehouse the products packed in original packaging as supplied by the manufacturer. The transfer
of responsibility of the product will occur when the Vendor is given a delivery note which certifies that TMX Global Limited received the product. Yet, the Vendor remains the owner of the goods until they are actually sold and received by the customer.
- Transfer of product from the Vendor to TMX Global Limited: No product damaged before the transfer of possession between the Vendor and TMX Global Limited will be accepted by TMX Global Limited. If the product received by TMX Global Limited is damaged, TMX Global Limited will ask the Vendor for the free substitution of this product with a product in good conditions.
In case of delay in the sourcing of products, the Vendor will communicate within 24 hours to TMX Global Limited the date when he or she estimates that the product is ready.
If the Vendor takes more than 2 working days to give the products to TMX Global Limited, TMX Global Limited reserves the right to consider the product as out of stock and to cancel the order, and to charge the penalties applicable.
- General Principles of TMX Online Shop First: The Vendor will complete a TMX Duka First fulfillment request through Merchant Epicenter and identify the products to be transferred.
Stock Receiving: The vendor will ensure all the products mentioned in the fulfillment request are the exact products dropped off to TMX Global Limited’s warehouse. The Vendor can drop off its products only during the opening hours of the Warehouse with prior scheduling. When dropping its products the Vendor must provide the list of the products and quantities dropped off to become TMX Duka First. The Vendor representatives will wait until full inbounding is done to sign 2 copies of delivery receipt acknowledging arrival in the Warehouse.
Stock Retrieval: The Vendor can request for his stock to be removed from the warehouse and made available for pick up with a 2 week notice period. TMX Global Limited will provide the Vendor with a detailed list of the products and quantities being returned to the Vendor, when the Vendor picks up their stock. The Vendor bears responsibility on requesting retrieval of products which are slow selling or not selling, as they approach expiration date or develop any other characteristic that would render them unsaleable (e.g. aging technologies). At the same time, TMX Global Limited reserves the right to request vendors to retrieve their stock from the Warehouse with a 2 week notice period.
b. GENERAL PRINCIPLES REGARDING PROCESS OF PRODUCTS RETURNED
- TMX Global Limited will accept products returned by its customers, if the return reason respects the return policy conditions mentioned in the Guidelines.
- Consent by the Vendor of the conditions of returns of TMX Global Limited: The Vendor will accept the conditions of return of TMX Global Limited. These Conditions are in the Guidelines. Moreover, the Vendor will renounce to his or her own return policy for all the orders received on TMX Duka.
- Return conditions: In general, if the original product packaging remains closed/sealed, customers are allowed to refuse delivery for any reason. This may include change of mind, lack of money, lack of availability for delivery, damaged packaging etc.
The Vendor is obligated to accept return of Goods, in original packaging, on the following cases:
- Faulty Goods:
- Defined as either manufacturing defects (mechanical or software related), “Dead on Arrival” (i.e. not working from the onset), damaged or missing parts
- As reported by the Customers within 7 days from delivery. In such cases, customers are entitled to replacement or refund at seller’s expense, which will be facilitated by TMX Duka on the Vendor’s behalf. This will either be by replacing the product from
TMX Duka First stock, or placing a new order for Drop Shipping products. If TMX Online Shop’s quality control process is disputed by the vendor, and proves to have been inaccurate (ie the product is not Faulty), TMX Duka will bear the cost & reimburse the Vendor
- As reported by the Customers after 7 days from delivery and handed over to the Service Center, which have not been repaired by the Service Center within 10
days, provided the product is under Warranty
- is the wrong product
- is different than described on the website
- does not fit the customer’s size (applicable to fashion products only)
There are various types of returns & deliveries
- Unopened returns – For items in whose categories TMX Duka offers a return policy and for items with visible damages
- Opened returns – for manufacturing defects, incorrect product and for categories where TMX Duka offers an opened returns policy
- Failed deliveries – these are cases where our delivery associates are not able to meet the customer, the customer does not pick up his ordered item or otherwise the product’s original packaging remains closed/sealed. The transaction was not completed.
- Rejections – these are cases where our delivery associates meet the customer or the customer picks up his ordered item, but rejects it on the spot, in the presence of our delivery staff. In such cases the product has been examined by the customer, where applicable the seal has not been broken, nor has the product been used and therefore the transaction was not completed.
- Returns – these are cases where the delivery and transaction are completed successfully but the customer requests a return within 7 days from the delivery date.
For Customer Convenience, TMX Global Limited and the Vendor commit to accepting the product returned by the Customer if:
- The Customer asked to have his or her product returned to the Vendor within 7 days after the delivery date and through the Customer Service of TMX Global Limited or by filling Ecart’s dedicated online return form
- The product sent back is still in its original packaging
- The product has not been used and is in good condition, unless reported defective or damaged
- There is no part of the product missing, unless reported to have missing parts
- For items with seals, the security seal has not been broken, unless defective or damaged or missing parts or wrong item
- The customer has conserved and sent back the invoice of the product and the free packaging complete with free gifts and accessories.
The Vendor is required to provide warranty and Service Center information to TMX Global Limited for the entire period of the warranty to be shared with the customer. In cases of Service Center default, the vendor will be required to mediate a product replacement with the Service Center for the benefit of
the customer, without ECART’s express involvement and within 10 days from the date when the customer brought the faulty product to the service center.
If an item is rendered unsellable during the delivery process, while the Vendor fully complied with packaging Guidelines at the point of shipping, TMX Global Limited will bear the cost of return of the item and will pay the value of the item as if it were sold to a final customer.
- Returns process and split of responsibility: In case of products returned or rejected, a Quality Control check is done in the warehouse of TMX Global Limited in order to determine who is responsible for the return of the product.
TMX Global Limited returns the product, to the Vendor. If the Vendor has already been paid for the sale of the product, he or she has to reimburse TMX Duka minus the amount of the commission deducted by TMX Duka when the item was sold. ECART will deduct the amount relative to the returned item from the next payout due to the Vendor. If no payouts are due or the Vendor decides for whichever reason to recede from this contract, he will still have to reimburse ECART for the amount of the item minus the commission.
If TMX Global Limited is responsible for the default of the product, TMX Global Limited will reimburse the Customer or will replace the product less commission
If the quality control shows that the Customer is responsible for the default of the product, the product is sent back to the Customer and there is no reimbursement.
If the Vendor or manufacturer is responsible for the default, the product is sent back to the Vendor. The Vendor has to reimburse TMX Global Limited if he has already been paid for the sale of the product less commission.
The return timelines are as detailed in the Guidelines.
- Responsibility of the Quality Control: Once the product is returned, TMX Global Limited has the responsibility of performing a quality control check. In the case of defective or damaged products, the quality control done by TMX Global Limited will be considered as the only valid control.
- Disagreement over the quality control: In case of disagreement over the quality control, the Vendor has to open a dispute procedure. He or she has to provide TMX Global Limited within 7 business days with the proofs that the object was working and had the quality necessary to be sold when he or she provided TMX Global Limited with the object.
- Reimbursement of objects sent back and penalties: If at the end of the return process, TMX Global Limited considers that the final customer has to be reimbursed; TMX Global Limited reimburses the customer and sends an invoice to the Vendor if necessary. Deductions are made from the next vendor payout.
A reimbursement between the Vendor and TMX Global Limited shall take place in the following cases and within 90 days of occurrence of the incidence:
If the product is defective and the Vendor is considered as responsible for this default. In that case, if TMX Global Limited has not paid the Vendor yet, the Vendor will not be paid for the product.
If the product is sent back by the Customer and is in state to be sold again and the Vendor wants to remain the owner of the object:
If TMX Global Limited has not paid the Vendor, the Vendor won’t pay for the object.
If on the contrary TMX Global Limited has already paid the Vendor, an invoice is sent to the Vendor so that he or she reimburses TMX Global Limited.
- Modification of return conditions: TMX Global Limited reserves the right to modify its return policy at any time and shall immediately give the Vendor 14 days’ notice prior to implementing the New Return Policy.
- Delay in return of the products to the Vendor: If for any reason, a product has to be sent back to the Vendor, TMX Global Limited will retrieve the product from the customer and make it available for the vendor at a location of TMX Global Limited warehouse or delivery hub.
- Forfeiture of Ownership: If the vendor doesn’t collect the returned products within fourteen (14) days following the notification by TMX Global Limited of the availability for collection of such items, TMX Global Limited will engage in the legal procedures required to dispose of the goods by issuing the relevant notices in accordance with the law.
- LIMITATION OF LIABILITY
- Quality and authenticity of the products provided by the Vendor: The Vendor indemnifies TMX Global Limited from all claims arising in relation to matters outside TMX Global Limited ‘s control, including but not limited to the quality of goods and services provided by the Vendor. The Vendor wholly and solely acknowledges that all the products are free from defects in design, materials and workmanship, clear of any liens, claims and encumbrances and comply with all relevant laws, regulations and requirements. The Vendor also acknowledges that the Products are of merchandisable quality, fit for the particular purpose for which they are intended and match their description. The Vendor undertakes to indemnify TMX Online Shop Kenya from any third parties claims relating to the quality or the condition
of the sold product(s) or resulting from the Supplier’s violation of any of the applicable laws or regulations.
- Malfunctions of services: TMX Global Limited cannot guarantee that its service will be free from all malfunctions, but will exercise all diligent and reasonable care and skill to resolve any such case.
- Collection of VAT: VAT liability for the product sold rests with the Vendor and TMX Global Limited will not be responsible for any VAT obligations that may arise. TMX Global Limited will remit and declare applicable taxes, including VAT on the amount of the commission and fees collected for its services and withholding tax where applicable.
- Limitation of TMX Global Limited’s service: TMX Global Limited commits into exercising all the necessary care to provide its website to the Vendors. Except any written commitment, the service commercialized by TMX Global Limited is limited to the broadcast of announces, subscription of options, and offer of logistics and marketing services.
- Commercial Results: TMX Global Limited does not guarantee any commercial results to the Vendor concerning the products that he or she puts on TMX Global Limited’s platform.
- Sudden interruption of the service offered by TMX Global Limited: TMX Global Limited will not be held responsible for the interruptions of its internet service, mobile application, mobile website, Android Application and all the loss of data or information stored by TMX Global Limited which could result from the interruption. The Vendor has to take appropriate measures to back up content he publishes on TMX Global Limited’s internet website.
- Prejudices of the Vendor: TMX Global Limited will not be held responsible for any prejudice and direct or indirect damages of any nature done to the Vendor because of the use, interruption or dysfunction of TMX Global Limited’s internet website, mobile website, Android Application or any other service provided by TMX Global Limited.
- Limitation of the contractual obligations: TMX Global Limited, its subcontractors and suppliers won’t be held as responsible for any delays or impossibility to fulfill their contractual obligations in case of:
- Their contractual obligations in case of: force majeure
- Interruption of the Internet website connection because of maintenance operations or refresh of information published ;
- Momentary inability to have access to the internet website or mobile application because of a technical problem, whatever could be the cause of that problem.
- Hack or any other cause which would interrupt the access to the internet network
- Acts restrictions regulations bye-laws prohibitions or measures of any kind on the part of any governmental parliamentary or local authority; import or export regulations or embargoes;
- Interruption of production or operation, difficulties in obtaining raw materials, labour, fuel parts or machinery;
- Power-failure or breakdown in machinery.
- Errors or omissions in the internet pages of the Vendor: Except in case of willful misrepresentation and very serious misconduct, TMX Global Limited, its subcontractors and suppliers will not pay any compensation, financial or of any other nature because of errors or omissions in the product’s pages of a Vendor., in case of such events, the Vendor will not ask for any compensation and will always pay the fees owed to TMX Global Limited.
- Responsibility of the Vendor: The Vendor is responsible for any damage caused to any third party due to the bad or illicit use of the internet website TMX Online Shop.co.ke owned by TMX Global Limited. The Vendor indemnifies TMX Global Limited from any legal claims or suits against him by a third party due to his misuse of TMX Global Limited’s internet website.
- Compensation: The Vendors commit to compensating TMX Global Limited, its administrators, managers, owners, employees, subcontractors, suppliers against any loss, expense, damage or cost (including lawyers’ fees) which would result of any violation of one of the terms of this contract by the Vendor or of the misuse of the platform provided by TMX Global Limited.
b. FORCE MAJEURE
- The Vendor, TMX Global Limited, its suppliers, contractors or any other employee of TMX Global Limited will not be held as responsible for any delay or non-compliance of its services in case of force majeure. Will be considered as force majeure all the cases usually accepted by the national jurisprudence and the total or partial strikes, lock-out, impossibility to access public transportation, hurricanes, fire, floods, legal modifications of the commercial rules, and any other case which can’t be controlled by either the Vendor or TMX Global Limited, its suppliers or any other subcontractor.
- Each party will notify the other party in writing immediately after the event or within 7 working days.
- In case of a case of force majeure, if the contractual obligation cannot be respected for more than a month, the parties will not have to respect their contractual obligations and the contract will be deemed terminated.
- The party which is affected by the force majeure has to notify the other party in writing. The affected party will take the necessary measures to limit as much as possible the effects of this force majeure. The non-affected party may then choose to terminate the contract or wait for the act force majeure to lapse.
- Upon termination of this Agreement each Party must immediately return to the other Party all material in its possession which contains Confidential Information of the other Party.
- However, the obligation of conservation of secrecy does not extend to the information which, at the moment of their transmission, is public or known by the public.
- A party will not be liable for divulging confidential information of either party, when required by law.
VII. Intellectual property
- The Vendor warrants, represents and covenants that its manufacture, sale distribution and use of the Goods do not infringe directly or indirectly any Intellectual Property. The Vendor warrants, represents and covenants that TMX Global Limited’s feature of the Goods on the Platform does not infringe any Intellectual Property, whether directly or indirectly.
- The Vendor undertakes and represents to TMX Global Limited that it has all rights and ownership or is a licensed user of all Intellectual Property in relation to the Goods and the supply of the Goods and is able to grant and hereby grants and irrevocable, non-exclusive and royalty free license to use all such Intellectual Property for the purposes of marketing, promoting and featuring the Goods on the Platform. TMX Online Shop acknowledges that it will not acquire any rights in respect of the Intellectual Property in relation to the goods and that all those rights and goodwill are, and will remain, vested in the Vendor or the owner of the Intellectual Property (as the case may be).
- The Vendor represents and warrants to TMX Global Limited that it is not aware of any claims made by any third party with regards to the any alleged or actual patent, copyright, trade secret, trademark, trade name, or other intellectual property right infringement or other claim, demand or action resulting from the manufacture, sale, distribution or use of the Goods.
- The Vendor agrees to release, defend, protect, indemnify and holds TMX Global Limited, their affiliates, and their respective directors, officers, employees, contractors, agents, suppliers, users, successors, and assigns, harmless from and against any and all costs (including attorney fees and court costs on an indemnity basis), expenses, fines, penalties, losses, damages, and liabilities arising out of any alleged or actual patent, copyright, trade secret, trademark, trade name, or other intellectual property right infringement or other claim, demand or action resulting from the advertising, promotion, manufacture, sale, distribution or use of the Goods.
- The Vendor shall not be entitled to use any Intellectual Property belonging to TMX Global Limited without TMX Global Limited’s prior approval in Writing.
Both Parties acknowledge and agree that the rights and duties created by this Agreement are personal to the Parties and that it was granted in reliance upon their individual or collective character and business ability, therefore neither Party may assign this Agreement wholly or Partially without the prior written consent of the other Party. However TMX Duka in fulfilling its obligation to the customer may assign some of these rights to third parties
IX. No guaranteed income
No warranties or representations are made with the regard to potential revenues that may be earned by the Vendor from the provision of TMX Global Limited’s services and no reliance should be placed on any statements or projections provided, whether verbal or in writing to this respect.
X. Entire agreement
Both Parties acknowledge and agree that there is no representation, warranty, collateral agreement or condition affecting this Agreement except as expressed in it.
XI. Schedules, Appendices and Annexures
All schedules, annexures, appendices and amendments hereto form part of this agreement.
ANNEXURE 1. WARRANTIES.
- “Warranty” means a defined period, for example of 1 (One) Year, within which the Vendor shall supply free labour and parts for any faulty equipment supplied/sold to TMX Online Shop customers. All vendors who sell electronic items on the website must provide TMX Global Limited with a valid service center for their products; otherwise they must indicate clearly that the product that it has no warranty.
- The Vendor hereby warrants the equipment for the defined period from the date of delivery against faulty parts, components or bad workmanship.
- During the warranty period the Vendor shall provide any required spare parts at no cost to TMX Duka customers in case of defect from the manufacturer.
- SERVICE WARRANTIES.
- The Vendor will deliver the Services in a professional and workmanlike manner and in accordance with the Governing Law. The vendor shall:
- Ensure that its Personnel are appropriately skilled, trained and experienced to provide the Services;
- Meet the service levels defined in a Service Level Agreement.
- Ensure that services are available at all times within normal working hours and days.
ANNEXURE B: FEES/FINES & PAYMENTS.
APPENDIX A. FINES
|Out of Stock (OOS): all items cancelled by vendor/TMX Duka before the order is shipped due to unavailability or delay.||2 x standard commission for each item out of stock with a minimum of 250 KSH if within 48hrs and 500 KSH is after 48hr and a maximum of 1000 KSH|
|Returns: All items returned by customer due to vendor related reasons.||Small=100 Medium=200 Large= 400|
|Penalty charges will be capped at maximum of Kshs 1,000 per item and a minimum of KSH 250.|
APPENDIX B. PAYMENT SCHEDULE.
All Vendors will by default be on a monthly payment schedule with minimum of Ksh. 5000/-. However, Suppliers meeting the threshold of sales of KSH 50,000 per week will be eligible to be paid weekly.
Monthly payments: Payments will be made on the 6th working day after the month end.
Weekly payments: Payments will be made by the end of the 3rd working day, after the end of each week. The end of the week for this purpose is assumed to be Sunday.