Everyday language summaries are provided for convenience only and are not legally binding. Please read the "Hosted service agreement" for the complete picture of your legal requirements. By using mallabee or any mallabee services, you are agreeing to these terms. Be sure to occasionally check back for updates.
This Hosted Service Agreement is made and entered into as of 06 October 2018 (the "Effective Date") by and between mallabee LTD ("mallabee"), an Israeli limited liability company and the entity or individual ("Client").
This Hosted Service Agreement, the Terms and Conditions (Schedule A), the Definitions (Schedule B) and any additional Schedules attached hereto (collectively, this "Agreement") constitute the entire agreement between the parties concerning Client’s use of the Hosted Service (defined in the Terms and Conditions). All Schedules attached hereto are incorporated herein by reference. This Agreement replaces and supersedes any prior verbal understandings, written communications and representations.
The Hosted Service performs arbitrage between Client’s eCommerce Store (listed on registration page) and products sold on Source Marketplace by identifying the prevailing prices for products on Destination Marketplace that are sold for less on Source Marketplace. The Hosted Service will locate products of interest on Source Marketplace based on Client's definitions, dynamically post content for applicable products into the Client’s eCommerce Store and the pricing agent automatically monitors competitor listings, Source Marketplace inventory, and re-prices the items and may update the listing page accordingly based upon pre-configured rules. When Client’s customers order a product from the Client’s eCommerce Store, (optional) the Hosted Service transfer the customer’s information and Client's payment to Source Marketplace and then the product will be drop-shipped to the customer from Source Marketplace. Client will select all relevant parameters applicable to the arbitrage such as, product selection, (optional) required price differential between applicable products on Source Marketplace and Destination Marketplace, and price competitiveness adjustments applicable to products offered through the Client’s eCommerce Store. Client agrees the Hosted service software, as part of its requirement to stand out versus same listings on Destination Marketplace creates SEO optimised listing pages, this may change the listing pages with the mallabee default template and will also add a mallabee logo embedded in the page linked to mallabee.com to allow driving leads. The default template is optional and will be used to create new listed items that are listed through mallabee and also on current items that are already listed before the client was using mallabee software. Client agrees that all changes that are made through the system such as: pricing, images, template, shipping polices, handling time and any other listing parameter are subject to change by the system and mallabee are not liable and not responsible to do any change back to the original parameters.
mallbee hereby grants Client a nonexclusive, nontransferable, nonsublicensable, revocable license to access and use the Hosted Service within the scope of use set forth in this Agreement during the term of this Agreement. Client is responsible for all activities conducted under its User logins on the Hosted Service. Client shall receive access to the most current version of the Hosted Service made available to mallabee's customers generally.
Client shall use the Hosted Service solely for sales from its Destination Marketplace Store(s) and in compliance with applicable law and shall not:
Attempt to gain unauthorized access to, or disrupt the integrity or performance of the Hosted Service or the data contained therein.
Modify, copy or create derivative works based on the Hosted Service.
Reverse engineer the Hosted Service.
Access the Hosted Service for the purpose of building a competitive product or service or copying its features or user interface.
Use the Hosted Service for purposes of product evaluation, benchmarking or other comparative analysis intended for publication without mallabee's prior written consent.
Permit access to the Hosted Service by a competitor of mallabee.
Client hereby grants mallabee a royalty-free, fully paid-up, nonexclusive, perpetual, irrevocable, worldwide, transferable, sublicensable license to use, copy, modify or distribute, including by incorporating into the Hosted Service, any suggestions, enhancement requests, recommendations or other feedback provided by Client or its Users relating to the operation of the Hosted Service.
Client agrees that mallabee may transfer Client contract and contact information. mallabee may send Client information regarding new products and services and other marketing communications unless Client notifies mallabee, as applicable, that it wishes to opt out of receiving such communications. Client understands that even if it so opts out, it nevertheless will continue receiving system messages and other communications relating to the operation of the Hosted Service.
mallabee will support on use of the Hosted Service, in accordance with mallabee standard terms.
In consideration for access to and use of the Hosted Service, at the end of the free 14-day trial, client shall pay mallabee a fixed monthly fee upfront for upcoming month based on a user selected plan of the number of items to list on Client’s eCommerce Store the pricing is determined and displayed in the Site Pricing and also available during the upgrade process within the web app. All prices are subject to change without notice at any time and are based in part on the applicability of hosted service agreement set forth herein
If unlimited free plan is offered, it can be selected through the site account setup during the initial registration, there is no obligation by the company for how long this offer will be available for new users.
At the beginning of each calendar month, mallabee will charge the PayPal account of the Client via the PayPal Subscriptions and Recurring Payments method based on the total number of listed items via the hosted service as selected by the client and described above.
Payments of fees by Client shall be made, as required by mallabee, via an automatic withdrawal from Client’s PayPal account.
Client authorises that mallabee to make such withdrawals monthly.
Client will provide mallabee with the PayPal credential information necessary to effect the withdrawals.
Client will not take any action to block, terminate or obstruct such withdrawals during the term of this Agreement.
Client will promptly notify mallabee of any changes to PayPal’s account necessary for mallabee to know in order to continue withdrawing the required payments.
Amounts payable hereunder do not include any applicable Taxes, which, if applicable, will be charged to and paid by Client. Taxes arising from sales of products from Client’s eCommerce Store are the sole responsibility of Client as seller of such products.
Late payments shall accrue interest at mallabee’s discretion at 1% per month. mallabee reserves the right to suspend Client’s access to and use of the Hosted Service entirely should any payment be delayed more than 10 days from the invoice date. Client shall reimburse mallabee for all costs of collection, including attorneys’ and court fees, relating to overdue payments. If Client fails to pay fees on time or mallbee reasonably believes that Client is at risk not being able to pay fees on time, then mallbee may require the prepayment of fees based upon reasonable estimates or other payment arrangements as determined by mallabee.
mallbee shall have the right to audit Client’s records relating to compliance with the terms of this Agreement upon reasonable notice (not less than 10 business days) and under reasonable conditions. mallabee may not conduct such an audit more often than once a year.
Client represents that it fully understands the operation and functionality of the Hosted Service and Client shall be responsible to ensure that Client’s access to and use of the Hosted Service, and the operation of Client’s eCommerce Store in general, is in compliance with:
All applicable laws and regulations, including, without limitation, data security, privacy, marketing, intellectual property and advertising.
Client will maintain an account with PayPal into which all customers shall pay for products sold through the Client’s eCommerce Store via the Hosted Service. Client shall not accept payment through any other means.
(if option selected) Client is responsible for the purchase of gift cards from Source Marketplace or any other Source Marketplace gift card cash-back program such as "gyft.com" which gift cards will be used to pay for the purchases of products from Source Marketplace that are sold through the Client’s eCommerce Store. Client shall be required to purchase the gift cards in quantities as indicated by mallabee or as notified through the Hosted Service and Client shall enter all required information relating to such gift cards into the Hosted Service to be drawn upon as per mallabee's instructions. Gift card balances will be held by Client and maintained by Source Marketplace.
Client shall be responsible for managing all returns and maintaining records applicable to all product returns.
Client is solely responsible for all support required by the customers of Client’s eCommerce Store, including, without limitation, handling of all customer inquires and managing customer feedback posted to Destination Marketplace.
Client is responsible, at its own expense, for acquiring, maintaining and operating all equipment, components and services necessary for accessing and using the Hosted Service. Additionally, Client will continue operate and manage its Destination Marketplace Store(s) at its own expense, and shall be responsible for all sales and customer management and support, and clearing of payments made through PayPal.
Client agrees that during the term of this Agreement, and for 2 years thereafter, Client shall not, directly or indirectly:
Perform development, training, consulting, marketing for entities engaged in a Competitive Business.
Own shares in corporations engaged in a Competitive Business, other than shares traded on a securities exchange.
Solicit or hire the employees of mallabee.
Solicit or attempt to encourage or cause customers of the Hosted Service to use a comparable system offered by a Competitive Business.
This Agreement shall become effective as of the Effective Date once checked and agreed and remain in full force on a month-by-month basis until terminated by either party upon not less than 10 days prior written or verbal or any kind of communication notice.
Termination by mallabee. Client acknowledges that the Hosted Service is exclusively managed and operated by mallabee. If mallabee at any time ceases to provide the Hosted Service for any reason, or decides to terminate Client’s access to and use of the Hosted Service, then this Agreement will automatically terminate, without liability to mallabee.
Termination by Client. You may cancel your Account at anytime by emailing email@example.com
Upon termination of the Services by either party for any reason mallbee will cease providing you with the Services and you will no longer be able to access your Account until the end of your current cycle month.
Unless otherwise provided in the Terms of Service, you will not be entitled to any refunds of any Fees, pro rata or otherwise; including but not limited your monthly subscription fees again, your membership will continue through the end of your current charge cycle.
Any outstanding balance owed to mallabee for your use of the Services through the effective date of such termination will immediately become due and payable in full; and your Destination Marketplace store will be deactivated.
Either party may terminate this Agreement for cause:
Upon 10 days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period.
Immediately upon written notice if the other party becomes the subject of a bankruptcy, insolvency, receivership, liquidation, assignment for the benefit of creditors or similar proceeding.
Upon termination or expiration of this Agreement, Client’s rights to use and access the Hosted Service shall immediately terminate. No termination or expiration of this Agreement shall relieve Client of its outstanding payment obligations at the time of such termination or expiration. Upon termination, all remaining gift card balances will be the sole property of Client. Any provisions of this Agreement that, in order to fulfill the purposes of such provisions, need to survive the termination or expiration of this Agreement, shall be deemed to survive for as long as necessary to fulfill such purposes.
Neither party shall use or disclose any Confidential Information (defined below) of the other party for any purpose outside the scope of this Agreement, except with the other party's prior written consent. Each party shall protect the other party's Confidential Information in a manner similar to its own Confidential Information of like nature (but in no event using less than reasonable care). In the event of an actual or threatened breach of a party's confidentiality obligations, the non-breaching party shall have the right, in addition to any other remedies available to it, to seek injunctive relief, it being specifically acknowledged by the breaching party that other remedies may be inadequate. "Confidential Information" means all proprietary or confidential material or information disclosed orally, in writing or by other means by the disclosing party to the receiving party, including the terms and conditions of this Agreement, that is designated as proprietary or confidential or that reasonably should be understood to be proprietary or confidential given the nature of the information and the circumstances of the disclosure; provided, that Confidential Information shall not include any information or material that:
was or becomes generally known to the public without the receiving party's breach of any obligation owed to the disclosing party
was or subsequently is independently developed by the receiving party without reference to Confidential Information of the disclosing party as evidenced by documentation.
was or subsequently is received from a third party who obtained and disclosed such Confidential Information without breach of any obligation owed to the disclosing party.
is required by law to be disclosed (in which case the receiving party shall give the disclosing party reasonable prior notice of such compelled disclosure and reasonable assistance, at disclosing party's expense, should disclosing party wish to contest the disclosure or seek a protective order).
The terms of this Agreement and the functionality of the Hosted Service (including, without limitation, marketing strategies, data and content collection, and price comparisons and updating) are the Confidential Information of mallabee. Client shall ensure that all Users are bound by non-disclosure and non-use restrictions comparable as provided for under this Agreement.
Client acknowledges and agrees that the Hosted Services are operated by mallabee and that mallabee will have access to Client Confidential Information as necessary to perform the Hosted Service for Client.
Each party represents and warrants that:
It has the legal power to enter into and perform under this Agreement.
It has obtained and will maintain any and all consents, approvals, licenses or other authorizations necessary for the performance of its obligations hereunder.
It will comply with all applicable laws and regulations in its performance hereunder.
Neither party shall make any representations or warranties on the other's behalf without the other's prior written consent.
THE HOSTED SERVICE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND AND MALLABEE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, TO THE FULLEST EXTENT PERMITTED BY LAW, INCLUDING BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. MALLABEE DO NOT WARRANT THAT THE HOSTED SERVICE WILL OPERATE WITHOUT INTERRUPTION OR ERRORS OR THAT ERRORS WILL BE CORRECTED. ACCESS TO THE HOSTED SERVICE BY CLIENT IS AT CLIENT’S SOLE RISK.
Client shall defend, indemnify and hold mallabee and its agents, officers and employees harmless from and against any loss or damage (including reasonable attorneys' fees) incurred in connection with claims, demands, suits or proceedings ("Claims") made or brought by a third party against an indemnified party resulting from Client’s gross negligence or willful misconduct related to this Agreement or from Client’s breach of any of its representations, warranties or obligations under this Agreement; provided, mallabee shall:
Promptly give written notice of the Claim to Client (provided no failure to do so shall relieve Client of its indemnification obligations unless Client is materially prejudiced thereby).
Give Client sole control of the defense and settlement of the Claim (provided Client may not settle or defend any Claim unless it unconditionally releases the indemnified party of all liability).
Provide to Client, at Client’s cost, all reasonable assistance requested by Client.
IN NO EVENT SHALL MALLABEE HAVE ANY LIABILITY TO CLIENT FOR ANY LOST PROFITS, LOST REVENUE, LOST DATA, OR FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH LIABILITY.
IN NO EVENT SHALL MALLABEE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS PAID TO MALLABEE BY CLIENT HEREUNDER DURING THE PERIOD OF 1 MONTH PRIOR TO A CAUSE OF ACTION ARISING.
CLIENT UNDERSTANDS THAT IT IS MANAGED AND OPERATED EXCLUSIVELY BY MALLABEE. ACCORDINGLY, CLIENT AGREES THAT MALLABEE SHALL HAVE NO LIABILITY HEREUNDER WHATSOEVER FOR ANY ACT OR OMISSION THAT IN ANY MANNER ARISES FROM THE FAULT OF MALLABEE OR PERFORMANCE OF THE HOSTED SERVICE, AND CLIENT HEREBY WAIVES ANY RIGHT TO MAKE ANY CLAIM AGAINST MALLABEE ARISING FROM OR RELATED TO ANY ACT OR OMISSION OR FAULT OF MALLABEE OR THE PERFORMANCE OF THE HOSTED SERVICE.
Each party shall comply with all applicable laws and regulations relating to its performance hereunder.
mallabee will have the right to indicate orally or in writing to its customers and potential customers that Client is a party to this Agreement and mallabee may use Client’s name and logos in its marketing materials when referencing Client as a customer of mallabee.
The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship.
All notices under this Agreement shall be in writing and may be given by personal delivery, express delivery, courier, international mail, facsimile or email. Notice shall be effective upon receipt. Notices to the parties shall be addressed as set forth on the cover page, which contact information may be changed by the parties upon written notice.
In the event of any dispute hereunder, the parties shall promptly and in good faith attempt to resolve such dispute, including escalating it as appropriate. Except for temporary injunctive relief as deemed reasonably necessary, neither party may initiate any court or other formal action relating to such dispute within the first 30 days following notice by one party to the other of such dispute.
No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing mallabee may assign this Agreement together with all rights and obligations hereunder, without consent of Client, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
This Agreement shall be governed exclusively by, and construed exclusively in accordance with, the laws of Israel, without regard to its conflicts of laws provisions. Israel Tel Aviv court shall have exclusive jurisdiction to adjudicate any dispute relating to this Agreement. Each party hereby consents to the exclusive jurisdiction of such courts.
This Agreement, including all attachments and exhibits hereto, constitutes the entire agreement between the parties as to its subject matter and supersedes all previous and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment or waiver of any provision of this Agreement shall be effective unless in writing signed by both parties. Except as otherwise expressly stated, the terms of the body of this Agreement shall prevail in the event of any inconsistency with the terms of any attachment or exhibit hereto. Notwithstanding any language to the contrary therein, no terms or conditions stated in any Client purchase order or in any other Client documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
This Agreement may be executed by facsimile and in counterparts, which taken together shall form one legal instrument.
"Amazon" means the online retailer located at https://www.amazon.com and owned and operated by Amazon.com, Inc., and includes applicable websites operated by Amazon.
"AliExpress" means the online retailer located at https://www.aliexpress.com and owned and operated by Alibaba Group Holding Limited, and includes applicable websites operated by Alibaba Group.
"Competitive Business" means an online system that compares pricing and performs arbitrage between multiple websites that sell products to consumers.
"eBay" means the online retailer located at https://www.ebay.com and owned and operated by eBay, Inc., and includes applicable websites operated by eBay.
"Shopify" means the online retailer located at https://www.shopify.com and owned and operated by Shopify Inc., and includes applicable websites operated by Shopify.
"Destination Marketplace" means one of the following online retailers:
"Hosted Service" means the web-based arbitrage software application service developed, hosted, managed and maintained by mallabee composed of the specific mallabee applications, as further described in Section 1.1 of the Agreement.
"Net Profit" means the sale price of a product sold on the Client’s eCommerce Store via the Hosted Service less:
The purchase price of the product purchased via the Hosted Services from Source Marketplace.
Applicable Destination Marketplace and PayPal transaction fees.
"PayPal" means the online payment processor located at https://www.paypal.com.
"Taxes" means any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, sales, use or withholding taxes.
"Users" means a Client's employees, agents, contractors, consultants or other individuals who are authorized by Client to use the Hosted Service.