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Last updated May 20, 2020
INTRODUCTION
You acknowledge and agree that by registering for or using the Vendor Dashboard and/or the Afro Nala Market Place, you, as a Vendor, expressly agree to be bound by the following terms and conditions, as may be updated and amended by Afro Nala Marketplace from time to time at its sole discretion (“Agreement”). Any amendments to this Agreement shall become effective and binding on the Vendor as soon as the amendments have been published the Vendor Dashboard and/or the Afro Nala Site (as applicable). This Agreement contains the terms and conditions that govern the Vendor’s access to, and use of, the Marketplace Program and is an agreement between the Vendor and Afro Nala Marketplace.
1. INTERPRETATION
1.1. No provision shall be construed against or interpreted to the disadvantage of any Party by reason of such Party having or being deemed to have structured or drafted such provision. The rule of interpretation that an agreement will be interpreted against the Party responsible for the drafting and any similar rules of interpretation shall not apply to this Agreement and the Parties waive any rights they have to rely on such rules.
1.2. Terms other than those defined within this Agreement will be given their plain English meaning, and those terms, acronyms, and phrases known in the information and communications technology industry shall be interpreted in accordance with their generally accepted meanings.
1.3. If any conflict exists between the provisions of this Agreement and any Annexures attached hereto, the provisions of the Annexures shall prevail.
1.4. When any number of days are prescribed in this Agreement, it shall be reckoned to exclude the first and to include the last day.
1.5. Any reference in this Agreement to legislation or subordinate legislation is to such legislation or subordinate legislation at the date of signature hereof and as amended and/or re-enacted from time to time.
1.6. Words importing the singular shall include the plural, and vice versa, words importing the masculine gender shall include the feminine and neuter genders, and vice versa, and words importing natural persons shall include legal persons, and vice versa.
2. DEFINITIONS
2.1. Unless the context indicates otherwise, the words and expressions set out below shall bear the following meanings and cognate expressions shall bear corresponding meanings:
2.1.1. “Affiliate” means a wholly owned subsidiary of Afro Nala Marketplace and/or Afro Nala;
2.1.2. “Claim” or “Claims” shall mean any and all foreseeable or unforeseeable and alleged or actual actions, causes of action (whether in tort, agreement or strict liability, and whether in law, equity, statutory or otherwise), claims, demands, lawsuits, legal proceedings, administrative or other proceedings or litigation;
2.1.3. “Confidential Information” means all information communicated by a disclosing Party that should reasonably be considered confidential under the circumstances, notwithstanding whether it was identified as such at the time of disclosure, including, without limitation:
2.1.3.1. the terms of this Agreement (including all Annexures and policies referenced herein or attached hereto);
2.1.3.2. all trade secrets;
2.1.3.3. existing or contemplated services, designs, technology, processes, technical data, engineering, techniques, methodologies and concepts and any information related thereto;
2.1.3.4. Transaction Information, all Payment Card Data and all Tax Codes of Afro Nala Marketplace.
2.1.4. “Content” shall mean all information, content and images, including without limitation, the product information, (i) provided or made available by Vendor or its affiliates to Afro Nala Marketplace or its Affiliates or Service Providers for use in connection with the Marketplace Program and (ii) otherwise made available by Vendor or its affiliates to customers on the Afro Nala Site (e.g., through Vendor’s hosting of such information, content or images);
2.1.5. “Customer” means a customer purchasing products through the Afro Nala Site;
2.1.6. “Effective Date” means the date of acceptance of this Agreement;
2.1.7. “Excluded Offers” means private promotions offered only to all or a subset of Vendor’s existing customers by e-mail or regular mail, and Public Promotions that a vendor has indicated in writing that it cannot support and an equivalent offer or promotion cannot be provided.
2.1.8. “Intellectual Property Right” means any patent, copyright, trademark, service mark, trade dress (including any proprietary “look and feel”), trade name, logo, moral right, trade secret and any other intellectual property right arising under any Law and all ancillary and related rights, including all rights of registration and renewal and causes of action for violation, misappropriation or infringement of any of the foregoing;
2.1.9. “Law” shall mean any law, ordinance, rule, regulation, order, license, permit, judgment, decision or other requirement, now or hereafter in effect, of any governmental authority of competent jurisdiction, including without limitation the Consumer Protection Act 68 of 2008 and relevant South African National Regulatory of Compulsory Specifications requirements;
2.1.10. “Losses” shall mean any and all damages (including, without limitation, direct, consequential, economic, exemplary, future, incidental, indirect, noneconomic, past, special and punitive), sanctions, settlement payments, disbursements, judgments, liability, losses (including lost income or profit), costs or expenses of any nature whatsoever, whether accrued, absolute, contingent or otherwise, including, without limitation, attorneys’ fees and costs (whether or not suit is brought);
2.1.11. “Afro Nala Marketplace” means Afro Nala (Pty) Ltd, registration number 2020/484003/07, a private company duly registered in accordance with the Laws of South Africa, and shall include its Affiliates;
2.1.12. “Afro Nala” means Afro Nala (Pty) Ltd t/a afronala.co.za, registration number 2020/484003/07, a private company duly registered in accordance with the Laws of South Africa, and shall include its Affiliates;
2.1.13. “Afro Nala Terms and Conditions” means Afro Nala’s then current peace of mind policy which sets out Afro Nala’s standard customer satisfaction and returns policy which is available on the Afro Nala Site, and as may be updated and amended from time to time at the sole discretion of Afro Nala.
2.1.14. “Afro Nala Site” means www.afronala.co.za and applicable applications;
2.1.15. “Marketplace Program” means the Afro Nala Marketplace program;
2.1.16. “Marketplace Policy” means the Markteplace’s privacy policy that governs Vendor’s use of Customer information obtained in connection with the Marketplace Program, and as may be published on the Afro Nala Site and/or Vendor Dashboard from time to time;
2.1.17. “On-Time Shipping Standard” means the time specified for each order to be processed and delivered;
2.1.18. “Orders” means orders placed by a customer through the Afro Nala Site for the purchase of products;
2.1.19. “Party” or “Parties” means, individually, Afro Nala Marketplace or the Vendor as the context requires and, together, Afro Nala Marketplace or the Vendor;
2.1.20. “Payment Card” shall mean a debit or credit type card used for financial transactions;
2.1.21. “Payment Card Data” means any information located on a Payment Card, such as, but not limited to, debit or credit card number, expiration date, pin number, cardholder name, or cardholder address;
2.1.22. “PII” means any information that can be used to identify an individual and/or information that constitutes personal identifiable information.
2.1.23. “Products” means the products that the Vendor desires to sell on the Afro Nala Site, and approved by Afro Nala Marketplace, and as reflected on the Vendor Dashboard;
2.1.24. “Product Information” means the product information that Afro Nala Marketplace requires;
2.1.25. “Public Promotions” means any public promotions generally available to all users of the Vendor Site;
2.1.26. “Fixed Fee” means the commission that Afro Nala will retain from each sale of the Vendor’s Products made through the Afro Nala Site;
2.1.27. “Processing Fee Percentage” means the commission, calculated as a percentage of Sales Proceeds excluding VAT; Fixed Fee Percentages vary may vary;
2.1.28. “Sales Proceeds” means the gross sales proceeds from the sale of the Products, including VAT and excluding shipping;
2.1.29. “Vendor” means third party vendors, distributors, wholesalers, retailers and any other incorporated company wanting to sell approved product through the Afro Nala site, and who have registered on the Vendor Dashboard and have agreed to the terms of this Agreement;
2.1.30. “Vendor Customer Information” shall mean customer information in Vendor’s possession that was not received from Afro Nala Marketplace as Transaction Information or in any other manner and was not obtained or received by Vendor in connection with this Agreement or Vendor’s rights and obligations under this Agreement;
2.1.31. “Vendor Dashboard” shall mean the web based tool or other web services or interfaces, provided by Afro Nala Marketplace and/or Afro Nala and/or a Service Provider that Vendor can use to manage its settings, Content and other information related to the Marketplace Program, and including all associated product listing requirements;
2.1.32. “Vendor Marks” means Vendor’s name, trademarks, service marks and logos;
2.1.33. “Vendor Share” shall mean the Sale Proceeds collected from the sale of the Vendors Products less the Fixed Fee earned by Afro Nala Marketplace for such Products;
2.1.34. “Vendor Site” means any website, other than the Afro Nala Site, where a vendor displays any information related to the Vendor or its products;
2.1.35. “Service Provider” means a third party that provides management software and services for the Marketplace Program;
2.1.36. “Service Level Agreement” means the service level agreement or SLA, that Vendors will be required to adhere to in order to provide the required service levels to and on behalf of Afro Nala;
2.1.37. “Transaction Information” means the Customer’s Order information, including but not limited to the Customer’s name, email address, shipping address.
3. THIRD PARTY SERVICE PROVIDERS
3.1. Vendor acknowledges and agrees that:
3.1.1. Afro Nala may contract a Service Provider to provide management software and services for the Marketplace Program; and
3.1.2. Vendor may provide Content to Afro Nala Marketplace using the software and/or services of a Service Provider.
4. LICENSE OF SELLER’S CONTENT
License for Content.
4.1. Vendor hereby grants Afro Nala Marketplace, its Affiliates, and marketing partners, a non-exclusive, royalty-free, perpetual, irrevocable right and license to publish, use, reproduce, distribute, transmit, display, modify, create derivative works of and otherwise commercially exploit all Content (excluding the Vendor Marks) in connection with the sale of products through the Afro Nala Site and for the listing, advertising, marketing and promotion of such products or the Marketplace Program, including without limitation, through the Afro Nala Site, third party websites, e-mail, social media or any other medium. Vendor agrees that Afro Nala Marketplace may permit users of the Afro Nala Site to share and post Content on their own social media outlets. License for Marks.
4.2. Vendor hereby grants Afro Nala Marketplace and its Affiliates and marketing partners a non-exclusive, royalty-free, non-transferable license to publish, use, reproduce, distribute, transmit and display Vendor’s Marks during the term in connection with the Marketplace Program.
5. PRODUCT INFORMATION AND OTHER CONTENT
Information for Products
5.1. Vendor will use the Vendor Dashboard to list all the required Content, Pricing and Available Inventory per unique product. The Vendor shall adhere to the minimum requirements as set out on Marketplace Vendor Dashboard. In addition the Vendor will:
5.1.1. use commercially reasonable efforts to ensure the Vendor Dashboard always has an accurate error-free available inventory count per product listed on the Vendor Dashboard.
5.1.2. at least every hour update the Vendor Dashboard with an error-free updated inventory feed for only those Products where inventory levels have changed since the last inventory feed provided for such Product;
5.1.3. provide Afro Nala Marketplace through the Vendor Dashboard with a daily inventory feed for all Products;
5.1.4. provide Afro Nala Marketplace with all Content requested by Afro Nala Marketplace, including without limitation, the Product information as set forth in the Vendor Dashboard;
5.1.5. only provide Content for Products that fit into the categories or parameters as set forth in the Vendor Dashboard.
5.2. The Vendor will be held solely responsible for the accuracy of its Pricing, available Inventory and all Content for Products and will be obliged to honour any order placed by a Customer through the Afro Nala Site as a result of the Content provided. Excluded Products.
5.3. Afro Nala Marketplace will make commercially reasonable efforts to post updated Content provided by Vendor on a daily basis through its standard transmission process; provided that Vendor acknowledges that Afro Nala Marketplace will impose freezes on Content updates from time to time in connection with releases on the Afro Nala Site.
6. FEES AND PAYMENTS
Fixed Fees
6.1. Afro Nala will earn a Fixed Fee as calculated in the Vendor Support Centre from each sale of Vendor’s Products through the Afro Nala Site. The Fixed Fee is subject to change at any time, without prior notice to the Vendor, and shall be effective as soon as the changes are reflected on the Vendor Support Centre.
Payment.
6.2. An Order is deemed complete only once:
6.2.1. The Product has been delivered with a proof of delivery signed by the customer; and
6.2.2. The returns and/or cancellation period stipulated in the Afro Nala Terms and Conditions has expired (“Deemed Completion”).
6.3. Afro Nala Marketplace will make payment of the Vendor Share for Orders that meet the Deemed Completion criteria when the Vendor requests a withdrawal from the Vendor Dishoard.
6.4. At Afro Nala Marketplace’s option, all payments to Vendor’s bank account will be made by mean of electronic funds transfer or similar method. If Afro Nala Marketplace concludes that Vendor’s actions and/or performance in connection with this Agreement may result in customer disputes, chargebacks or other claims, then Afro Nala Marketplace may, in its sole discretion, delay initiating any remittances and withhold any payments to be made or that are otherwise due to Vendor under this Agreement for the shorter of:
6.4.1. a period of ninety (30) days following the initial date of suspension; or
6.4.2. completion of any investigation(s) regarding Vendor’s actions and/or performance in connection with this Agreement.
6.5. The Vendor expressly acknowledges and accepts that payment of the Vendor Share by Afro Nala Marketplace shall at all times be subject to Afro Nala Marketplace having received the corresponding Sales Proceeds from Afro Nala. Afro Nala Marketplace shall have no liability to the Vendor, and the Vendor shall have no claim against Afro Nala Marketplace, for any failure by Afro Nala Marketplace to make payment of the Vendor Share in circumstances where the Afro Nala Marketplace has not received the corresponding Sales Proceeds from Afro Nala.
7. PURCHASE/ORDER PROCESSING, FULFILLMENT AND SHIPPING
Orders Status Update
7.1. Customers purchasing Products through the Afro Nala Site will place Orders using the Afro Nala Site checkout and payment gateway. Afro Nala will collect all proceeds from such transactions. Afro Nala Marketplace will make available on the Vendor Dashboard all the Transaction Information that Afro Nala Vendors need to manage all Orders via the Vendor Dashboard.
7.2. Vendors will only receive Orders that have been paid for in full and accepted by Afro Nala.
7.3. The Vendor is obligated to package and handover products as per order details to Afro Nala’s chosen delivery Service Provider.
- Risk of Fraud, Loss, and Cancellation
8.1. Afro Nala will bear the risk of credit card fraud occurring in connection with any Order.
8.2. The Vendor shall bear the full risk in and to any valid cancellation of an Order by a Customer, and expressly acknowledges that Customer’s may have additional rights against the Vendor as a result of the terms and conditions contained on the Afro Nala Site (if any). Fulfillment of Orders
8.3. Once Afro Nala Marketplace has transmitted an Order to Vendor, Vendor will, at its own expense, be solely responsible for, and bear all liability for, accurate picking and packing of all applicable orders, including without limitation, any ad hoc customer service requests from Afro Nala Marketplace.
8.4. If Vendor cannot fulfill the entire quantity of a purchase order line in an Order, then the Vendor immediately contact Afro Nala to notify of such.
8.5. All packaging material needs to comply with the minimum packaging standards as set out in the Vendor Support Centre.
8.6. Timing of Order transmission:
8.6.1. The Afro Nala Site will accept multiple different payment methods from Customers. The Vendor acknowledges that not all payment methods are processed by the relevant merchant bank within the same day in which they were received, and as such the Vendor may only receive notification of an Order after the date of the Order.
8.6.2. The Vendor accepts that it shall be obliged to honour all Orders based on the price and availability available on the Vendor Dashboard as of the date of Order, notwithstanding that the Vendor may have only been notified of the Order after the actual date of Order.
8.6.3. Afro Nala will use all reasonable and commercially viable means to endeavor to keep such delays to a minimum.
8.7. Shipping Method
8.7.1. Afro Nala undertakes to complete the shipping leg of an Order on the Vendors behalf. Afro Nala will make use of approved couriers to collect and distribute all Vendor Orders.
8.7.2. Vendors are obligated to make available all facilities as are necessary in order for Afro Nala approved couriers to collect packaged Orders from a single Vendor warehouse or collection point. The Vendor accepts that it shall be liable for any delays and/or Losses that may be suffered by Afro Nala or the Afro Nala Marketplace as a result of the Vendors failure in this regard.
8.7.3. For the sake of clarity, Afro Nala’s obligations in terms of this
8.8. Shipping Terms
8.8.1. Vendor will ship each Product within the On-Time Shipping Standard after receipt of the Transaction Information from Afro Nala Marketplace. If Vendor cannot meet the On-Time Ship Standard for any Product, it will provide Afro Nala Marketplace with email notification of such delay.
8.8.2. Vendor will be fully liable for any fines, costs or expenses incurred by Afro Nala Marketplace or by Afro Nala or by a third party resulting from any failure to satisfy the On-Time Ship Standard for any Product. The Vendor will indemnify and hold harmless Afro Nala Marketplace and its Affiliates and their officers, directors, employees and agents for any losses, liabilities, fines, costs or expenses (including costs on an attorney and own client basis) resulting from such failure. Vendor will be solely liable for all costs related to any duplicate or inaccurate shipments based upon Vendor’s acts or omissions.
8.9. Afro Nala Marketplace will provide Vendor with information on the status of Orders through the Vendor Dashboard. Vendor will be solely responsible for reviewing and monitoring such information. Within 8 (eight) hours of receipt of the information, the Vendor shall communicate to Afro Nala Marketplace of any discrepancies between the information provided and Vendor’s fulfillment of any Orders. Vendor is solely responsible for monitoring and responding to information provided by Afro Nala Marketplace pursuant to this Agreement.
- CANCELLATIONS, RETURNS AND REFUNDS
Responsibilities
9.1. Afro Nala and/or Afro Nala Marketplace shall process all Customer requests for cancellations, returns, refunds and/or customer service price adjustments. Vendor will stop and/or cancel any Order if requested by Afro Nala Marketplace; provided that if Vendor has transferred Products to a courier, Vendor will immediately notify Afro Nala Marketplace and use commercially reasonable efforts to stop and or cancel the delivery.
9.2. The Vendor expressly acknowledges and agrees that it shall at all times be bound by, and agrees to adhere to, the terms and conditions of the Afro Nala Terms and Conditions as may be updated and amended from time to time at the sole discretion of Afro Nala. Refunds and Returns
9.3. Afro Nala Marketplace retains the right to accept or reject all refund, return, and exchange requests by Customers. Afro Nala Marketplace will process all refunds, returns, and exchanges immediately upon confirmation from the Vendor, which confirmation shall be provided by the Vendor within 24 (twenty four) hours from receipt of a request from Afro Nala Marketplace, failing which the Vendor will be deemed to have provided its confirmation.
9.4. Refunds, returns, and exchanges will be determined via the Afro Nala Terms and Conditions. Vendor will be responsible for all exchanges and replacements, where applicable.
9.5. A Customer may return or cancel any Order for a Product sold through the Afro Nala Site at any time within, and in accordance with, the Afro Nala Terms and Conditions. The Vendor is obligated to accept any return or cancellation that meets the return policy as stipulated in the Afro Nala Terms and Conditions or on the Afro Nala Site. Afro Nala will use all reasonable and commercially viable means to endeavor to keep such returns and cancellations to a minimum.
9.7.1. Where returned Products are required to be collected from the Customer, the Vendor will have 5 (five) business days to assess return for resolution.
9.7.2. The Vendor acknowledges that a return in terms of the Afro Nala Terms and Conditions shall be deemed to have complied with the Afro Nala Terms and Conditions if the Customer returns the Product to the Vendor/Afro Nala within the stipulated period. This will apply notwithstanding the fact that the Vendor may only receive the actual Products at a time after expiration of the applicable period.
9.8. The ultimate decision on whether or not to refund a Customer will always lie with Afro Nala.
- PARITY WITH SELLER SALES CHANNELS
Parity
10.1. Vendor will maintain parity between the Products it offers through the Vendor Site and the Products offered on the Afro Nala Site by ensuring that at all times:
10.1.1. except for in connection with Excluded Offers, the selling price and every other term of offer and/or sale of the Products (including associated shipping and handling charges and options, any “low price” guarantee, rebate or discount, any free or discounted products or other benefit available as a result of purchasing one or more other products, and terms of applicable return and refund policies is at least as favorable to users of the Afro Nala Site as the most favorable terms upon which that Product is offered and/or sold via the Vendor Site;
10.1.2. the Content provided by Vendor to Afro Nala Marketplace for the Afro Nala Site:
10.1.3.1.1. is of least the same level of quality as the highest quality information displayed or used on the Vendor Site; and
10.1.3.1.2. provides users of the Afro Nala Site with at least as much product information, images and other content as the information provided on the Vendor Site.
10.2. If Vendor becomes aware of any non-compliance with 10.1 above, Vendor will promptly notify Afro Nala Marketplace and compensate adversely affected Customers by approving appropriate refunds to such Customers. Special Offers and Promotions
10.3. Vendor will notify Afro Nala Marketplace by email at support@afronala.co.za (or through the Vendor Dashboard) of all special offers and promotions (i.e., where Vendor discounts an item or items by a certain amount for a certain period of time) offered on the Vendor Site. Vendor will make special offers and promotions available to Afro Nala Customers in connection with the Marketplace Program, and will use commercially reasonable efforts to allow Afro Nala Marketplace to support any such special offer or promotion through the Vendor Dashboard. If Vendor makes any Public Promotions generally available to all users of the Vendor Site and Afro Nala Marketplace cannot support such Public Promotion, then Vendor will provide an equivalent offer or promotion to Afro Nala Marketplace Customers to the extent possible. For example, if Vendor lists a promotion code on the Vendor Site that can be used by any customer for 10% off specific Products or all Products sold on the Vendor Site and Afro Nala Marketplace cannot support the promotion code, Vendor will reduce the price of such Product or all Products, as applicable, through the Vendor Dashboard by 10% for the duration of the special offer or promotion on the Vendor Site. Vendor will work in good faith with Afro Nala Marketplace to maximize the number of Vendor offers and promotions (including equivalent offers and promotions) made available to Afro Nala Marketplace Customers.
10.4. Afro Nala Marketplace may choose, in its sole discretion, not to permit certain special offers or promotions offered by Vendor on the Afro Nala Site (e.g., where Afro Nala Marketplace cannot support the special offer or promotion) and may request that Vendor filter out any such special offers or promotions. Notwithstanding the foregoing, Vendor will not be required to make Excluded Offers available to Afro Nala Marketplace Customers, provided that, if Afro Nala Marketplace is able to support any Excluded Offer at any time during the Term and desires to do so, it will notify Vendor and after receipt of such notification, Vendor will make such special offer or promotion available to Afro Nala Marketplace in connection with the Marketplace Program.
11. RECALLS AND DEFECTS
11.1. Vendor is solely responsible for any non-conformity or defect in, or any public or private recall of Vendor’s Products. Afro Nala Marketplace will have no responsibility or liability for any recalls of Products sold through the Afro Nala Site. If Products are subject to a recall, Vendor is responsible for all matters, costs and expenses associated with such recall, including without limitation, notices and refunds to Customers, contact and reporting of the recall to any governmental agency having jurisdiction over the affected Products, and compliance with all applicable Law with respect to such recall. Vendor will promptly remove any recalled Products from the Afro Nala Site by unpublishing or retiring the Product through the Vendor Dashboard. Vendor will notify Afro Nala Marketplace by e-mail at support@afronala.co.zaof all Product recalls within 24 hours of becoming aware of the recall. Vendor will promptly provide Afro Nala Marketplace with all information reasonably requested in connection with the recall of any Product.
12. CONTACT WITH CUSTOMERS AND CUSTOMER SERVICE ESCALATION
Customer Service
12.1. Afro Nala will be responsible for providing 1st line telephonic support for Customers;
12.2. Where the Customer query cannot be resolved by Afro Nala, Afro Nala will escalate the support query to Afro Nala Marketplace for 2nd line support and resolution;
12.3. Where Afro Nala Marketplace is unable to resolve a Customer support query, Afro Nala Marketplace will escalate the support query to the Vendor for 3rd line support and resolution.
12.3.1. Vendor will always represent itself as a separate entity from Afro Nala Marketplace and Afro Nala when providing customer service for its Products sold through the Afro Nala Site.
12.4. Neither Party will disparage the other party or its affiliates or its or their products or services when performing obligations under this Agreement.
13. SELLER SYSTEMS AND SERVICE LEVELS
13.1. Vendor shall be solely responsible for the adequate maintenance and uptime of all Vendor systems that are necessary for the Vendor to fulfil Orders and meet its obligations of this Agreement.
13.2. The Vendor shall notify Afro Nala Marketplace within 1 (one) business hour, of any down-time or related system issues, that may or will have an impact on the Vendors ability to fulfil Orders or otherwise meet its obligations on terms of this Agreement.
13.3. The Vendor will comply with any service levels prescribed by Afro Nala or Afro Nala Marketplace from time to time, in connection with Vendor’s systems that, directly or indirectly, impacts the Afro Nala Marketplace systems or the Marketplace Program; and
13.4. The Vendor shall at all times comply with the Order and Customer Service Level Agreement, attached hereto as Annexure B.
14. REPORTING AND AUDITS
Reporting
14.1. Vendor will, within a reasonable period of time, not to exceed thirty (30) days, following request from Afro Nala Marketplace, make commercially reasonable efforts to provide Afro Nala Marketplace with any reports, information or other documentation relating to Vendor’s compliance with this Agreement and applicable Law reasonably requested by Afro Nala Marketplace; provided, however, that in the event Afro Nala Marketplace requests that Vendor provide Afro Nala Marketplace with copies of reports that Vendor was required to file with any regulatory agency, Vendor will provide such reports within seven (7) days of Afro Nala Marketplace’s written request. Audit Rights
14.2. Vendor will keep accurate and complete books, records and accounts related to Marketplace Program transactions and this Agreement, and will allow Afro Nala Marketplace, or its duly authorized representative, the right, upon not less than five (5) business days prior written notice, during the Term of this Agreement and for two (2) years after its termination or expiration, to conduct, during regular business hours, full and independent audits and investigations of all information, books, records and accounts reasonably required by Afro Nala Marketplace to confirm Vendor’s compliance with the terms of this Agreement and applicable Law. Certifications
14.3. Upon Afro Nala Marketplace’s request, Vendor will provide Afro Nala Marketplace with written certification from an officer of Vendor stating that Vendor has complied with any of Vendor’s obligations under this Agreement, including, for example and without limitation, compliance with SLAs, consumer product safety laws, authenticity of Products, or restrictions on use of Transaction Information.
15. REPRESENTATIONS AND WARRANTIES
15.1. Each Party hereby represents and warrants to the other Party the following: Authority
15.2. The Party is a duly organized, validly existing and in good standing under the laws of the state where such Party was organized and the Party has full power and authority to execute and deliver this Agreement and to perform its obligations hereunder without any further ratification or approval. This Agreement constitutes the legal, valid and binding obligations of the Party.
No Conflicts
15.3. Neither the execution and delivery of this Agreement by the Party nor the consummation of the transactions contemplated hereby will violate or conflict with any obligation, contract or license of such Party which could reasonably be expected to interfere with the consummation of the transactions contemplated hereby.
15.4. Vendor hereby represents and warrants to Afro Nala Marketplace the following:
Power and Authority
15.4.1. Vendor has the right, power and authority to grant the rights and licenses hereunder free and clear of any claims, liens and encumbrances and to sell the Products. Compliance with Laws
15.4.2. Vendor and all of its employees, subcontractors, agents and suppliers will comply with all applicable Law, as may be amended from time to time, in performing any of its obligations or exercising any of its rights under or related to this Agreement. All Products (including all packaging) and Content will comply with applicable Law. The production, manufacturing, offer, sale, shipping and delivery of all Products will comply with all applicable Law. Products will not be produced or manufactured by child labor or convict or forced labor. Principal Place of Business
15.4.3. Vendor’s principal place of business is in South Africa and Vendor will not conduct any operations relating to this Agreement from outside South Africa.
Content
15.4.4. All Content will be truthful and accurate. Content will not:
15.4.4.1. be misleading or deceptive
15.4.4.2. be defamatory, libelous, threatening or harassing;
15.4.4.3. infringe upon or violate any Intellectual Property Rights or other right of any third party;
15.4.4.4. promote or depict gratuitous violence, the use of alcohol, tobacco or illegal substances or adult-oriented content; or
15.4.4.5. reflect unfavorably on Afro Nala Marketplace, its Affiliates, or the Afro Nala Site or be the type of content that could otherwise reasonably adversely impact or damage the reputation or public image of Afro Nala Marketplace or its Affiliates. Vendor will not use the Content to redirect Afro Nala Marketplace Customers to any other sales channels.
Products
15.4.5. Vendor will only offer Products for sale on the Afro Nala Site that may be sold and shipped throughout South Africa. Vendor will not offer for sale any Products through the Afro Nala Site that Afro Nala Marketplace indicates as prohibited, including without limitation, the Prohibited Products attached hereto as Annexure A. The list of Prohibited Products may be updated by Afro Nala Marketplace from time to time and Afro Nala Marketplace will notify Vendor of such updates by email and/or through the Vendor Dashboard. Personnel
15.4.6. All Vendor personnel will be properly registered, documented, licensed and/or certified in accordance with applicable Law. Ongoing Warranties
15.4.7. Except as otherwise expressly provided herein, the representations and warranties made in this Agreement are continuous in nature and will be deemed to have been given by Vendor at the execution of this Agreement and each stage of performance of this Agreement.
16. CONTROL OF AFRO NALA SITE
16.1. Afro Nala has the sole right to determine the content, appearance, design, functionality and all other aspects of the Afro Nala Site, including, without limitation, all content provided in connection with the sale of Products sold by Vendor through the Afro Nala Site. Afro Nala Marketplace intends to use one set of content for each item sold through the Afro Nala Site. Afro Nala Marketplace may suspend any Product listing or display of Content or refuse to list any Products in its sole discretion and Afro Nala Marketplace may require Vendor to exclude any Products from the Afro Nala Site. If Afro Nala Marketplace requests that Vendor remove Products from the Afro Nala Site, Vendor will make commercially reasonable efforts to remove those Products by unpublishing or retiring such Products through the Vendor Dashboard within twenty four (24) hours of such request so such Products no longer appear for sale on the Afro Nala Site and Vendor will not include such removed Products on the Afro Nala Site at any time unless the inclusion of such Products is specifically authorized by Afro Nala Marketplace in writing. Afro Nala Marketplace will have sole control of any marketing of:
16.1.1. any products on the Afro Nala Site, including without limitation, Vendor’s Products; andthe Marketplace Program.
17. OWNERSHIP AND USE OF TRANSACTION INFORMATION
17.1. Afro Nala Marketplace will own all Transaction Information. Vendor may only use Transaction Information to further a transaction related to this Agreement, in accordance with the terms of the Agreement, the Marketplace Privacy Policy and applicable Law. Vendor will not:
17.1.1. disclose or convey any Transaction Information to any third party (except as necessary for Vendor to perform its obligations under the Agreement);
17.1.2. use any Transaction Information to conduct customer surveys or for any marketing or promotional purposes;
17.1.3. contact a Customer that has ordered a Product that has not yet been delivered with the intent to collect any amounts in connection therewith or to influence such Customer to make an alternative or additional purchase; or
17.1.4. target communications of any kind on the basis of the intended recipient being a Afro Nala Marketplace user.
18. RATINGS AND REVIEWS
18.1. Afro Nala Marketplace may use mechanisms that rate or review, or allow shoppers to rate or review, Vendor’s Products and Vendor’s performance as a vendor and Afro Nala Marketplace may make these ratings publicly available. Afro Nala Marketplace will have no liability to Vendor for the content or accuracy of any ratings or reviews. Vendor will have no ownership interest in or license to use any rating or reviews posted on the Afro Nala Site.
19. SUGGESTIONS AND FEEDBACK
19.1. If Vendor or any of Vendor’s Affiliates or agents elect to provide or make available suggestions, comments, ideas, improvements, or other feedback or materials to Afro Nala Marketplace in connection with or related to any Afro Nala Site or The Marketplace Program (including any related technology), Afro Nala Marketplace will be free to use, disclose, reproduce, modify, license, transfer and otherwise distribute, and exploit any of the foregoing information or materials in any manner. In order to protect Afro Nala Marketplace’s systems and customers, or to ensure the integrity and operation of Afro Nala Marketplace’s business and systems, Afro Nala Marketplace may access and disclose any information Afro Nala Marketplace considers necessary or appropriate, including but not limited to user contact details, IP addresses and traffic information, usage history, and posted content.
20. CONFIDENTIAL INFORMATION AND INFORMATION SECURITY
Obligations
20.1. Both Parties acknowledge that either Party may receive (the “Receiving Party”) Confidential Information from the other Party (the “Disclosing Party”) during the term of this Agreement, and such Confidential Information will be deemed to have been received in confidence and will be used only for purposes of this Agreement. The Receiving Party will:
2.1.1.1 use the Disclosing Party’s Confidential Information only to perform its obligations and exercise rights under this Agreement; and
2.1.1.2 disclose the Disclosing Party’s Confidential Information only to the Receiving Party’s personnel, contractors and affiliates that:
2.1.1.2.1 have a need to know the information to assist the Receiving Party with fulfilling obligations under this Agreement; and
2.1.1.2.2 have agreed to keep the information confidential in accordance with the terms set forth herein.
20.2. The Receiving Party will treat the Confidential Information as it does its own valuable and sensitive information of a similar nature and, in any event, with not less than a reasonable degree of care. The obligation of confidentiality will continue for three (3) years from the expiration or termination of this Agreement; provided, however, the Receiving Party will continue to keep confidential:
20.2.1. any PII at all times and as required by this Agreement and any applicable Law;
20.2.2. any trade secrets of the Disclosing Party; and
20.2.3. the terms of this Agreement.
20.3. Vendor agrees that Afro Nala Marketplace may share Vendor’s Confidential Information with its Affiliates for internal use only. Exceptions
20.4. The obligations of either Party under this Section will not apply to information that the Receiving Party can demonstrate:
20.4.1. was in its possession at the time of disclosure and without restriction as to confidentiality;
20.4.2. at the time of disclosure is generally available to the public or after disclosure becomes generally available to the public through no breach of agreement or other wrongful act or failure to act by the Receiving Party; provided, however, PII remains subject to confidentiality obligations regardless of its availability to the public or availability through unauthorized disclosure;
20.4.3. has been received from a third party without restriction on disclosure and without breach of agreement or other wrongful act by such third party or the Receiving Party; or
20.4.4. is independently developed by the Receiving Party without access to or use of the Confidential Information of the Disclosing Party.
20.5. In the event the Receiving Party is required by Law, stock exchange requirement or legal process to disclose any of the Confidential Information, the Receiving Party agrees to:
20.5.1. give the Disclosing Party, to the extent possible, advance notice prior to disclosure; and
20.5.2. limit the disclosure to minimum amount that is legally required to be disclosed.
21. TERM TERMINATION AND SUSPENSION
Term
21.1. This Agreement will apply to the Vendor from the moment of registration on or use of the Vendor Dashboard and/or the Afro Nala Market Place, and shall continue to apply for so long as the Vendor remains part of the Marketplace Program;
21.2. Vendor acknowledges and agrees that Afro Nala Marketplace may amend and/or replace this Agreement at any time in its sole discretion, and by logging onto the Vendor Dashboard, the Vendor shall automatically be bound by the latest Agreement.
Termination for Convenience
21.3. Either Party may terminate this Agreement for any reason by giving 48 (forty eight) hours prior written notice to the other Party.
Post-Termination Obligations
21.4. Vendor will continue to have obligations under this Agreement after termination of the Agreement, including without limitation, the obligation to:
21.4.1. Fulfil all Orders that have been accepted but not yet delivered;
21.4.2. provide customer service to Customers who purchased Products on the Afro Nala Site;
21.4.3. pay any invoices delivered by Afro Nala Marketplace in connection with the Agreement;
21.4.4. notify Afro Nala Marketplace and Customers of any recalls of its Products;
21.4.5. remit any taxes collected to the proper jurisdiction(s); and
21.4.6. immediately notify Afro Nala Marketplace of any security breach that allows a third party to view or access or otherwise compromises any Transaction Information.
21.5. Afro Nala Marketplace will pay Vendor the Vendor Share attributable to Orders placed by Customers prior to the termination of the Agreement in accordance with the payment terms set forth in this Agreement. Survival
21.6. The provisions of this Agreement which by their nature are intended to survive termination of the Agreement will survive its termination.
22. INDEMNIFICATION
Indemnification Obligations
22.1. Vendor will defend, indemnify and hold harmless Afro Nala Marketplace and its Affiliates and each of their respective stockholders, successors, assigns, officers, directors, employees, agents, representatives (each an “Indemnitee”) from and against any and all Losses arising out of or related to any third party Claims asserted against, imposed upon or incurred by an Indemnitee due to, arising out of or relating to:
22.1.1. an actual or alleged breach by Vendor of this Agreement;
22.1.2. the Vendor Site and other sales channels, the Content or the Products (including, without limitation, the offer, sale, refund, or return of Products) or any violation of Law with respect to the foregoing (including but not limited to the Consumer Protection Act, 2008), or any actual or alleged infringement of any Intellectual Property Right by any of the foregoing, or personal injury, death or property damage related thereto or arising therefrom; and
22.1.3. any and all income, sales, use, ad valorem, and other taxes, surcharges, fees, assessments or charges of any kind whatever, together with any interest, penalties and other additions with respect thereto, imposed by any federal, state, local or foreign government in any way related to the sale of the Products on the Afro Nala Site, specifically excluding, however, any such taxes related to Afro Nala Marketplace’s net income. Procedure for Indemnification
22.2. Upon receipt of notice, from whatever source, of Claims against Afro Nala Marketplace for which Vendor is obligated to indemnify Afro Nala Marketplace, Vendor immediately will take necessary and appropriate action to protect Afro Nala Marketplace’s interests with regard to the Claims. Afro Nala Marketplace will notify Vendor of the assertion, filing or service of any Claims of which Afro Nala Marketplace has knowledge, as soon as is reasonably practicable. Vendor will use counsel reasonably satisfactory to Afro Nala Marketplace to defend each Claim.
22.3. Conflict Notwithstanding the foregoing, however, if Afro Nala Marketplace reasonably determines that there may be a conflict between its position and that of Vendor in connection with the defense of a Claim or that there may be legal defenses available to Afro Nala Marketplace different from or in addition to those available to Vendor, then, at Vendor’s expense, counsel for Afro Nala Marketplace will be entitled to conduct a defense to the extent Afro Nala Marketplace reasonably determines necessary to protect the interest of Afro Nala Marketplace. If Afro Nala Marketplace, in its sole discretion, determines that the counsel provided by Vendor to defend Afro Nala Marketplace is unacceptable or that a conflict of interest exists between Afro Nala Marketplace and counsel, Afro Nala Marketplace may request that Vendor replace the counsel. If Vendor fails to timely replace counsel, Afro Nala Marketplace may replace the counsel and, as part of Vendor’s indemnification obligation to Afro Nala Marketplace, Vendor will pay to the new counsel, or reimburse Afro Nala Marketplace, any and all fees and expenses as to the new counsel, including any and all expenses or costs to change counsel. Settlement
22.4. Vendor, in the defense of any Claim, will not, except with the prior written consent of Afro Nala Marketplace, consent to entry of any judgment or enter into any settlement with respect to such Claim.
23. WARRANTY DISCLAIMER
23.1. NEITHER AFRO NALA, AFRO NALA MARKETPLACE, NOR ITS AFFILIATES, OFFICERS, DIRECTORS, LICENSORS, SUPPLIERS, EMPLOYEES OR AGENTS MAKE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, THAT THE AFRO NALA SITE, THE MARKETPLACE PROGRAM, ANY SELLER PORTAL, SERVICES PROVIDED BY AFRO NALA MARKETPLACE OR ANY SERVICE PROVIDER, OR SOFTWARE USED TO PROVIDE THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, VIRUS-FREE OR ERROR-FREE, AND SELLER AGREES THAT AFRO NALA MARKETPLACE WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS, INCLUDING WITHOUT LIMITATION, SYSTEM OR SOFTWARE FAILURES OR OTHER INTERRUPTIONS THAT MAY AFFECT THE RECEIPT, PROCESSING, ACCEPTANCE, COMPLETION OR SETTLEMENT OF ANY TRANSACTIONS. NEITHER AFRO NALA, AFRO NALA MARKETPLACE NOR ITS AFFILIATES, OFFICERS, DIRECTORS, LICENSORS, SUPPLIERS, EMPLOYEES OR AGENTS MAKE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, TO SELLER WITH RESPECT TO THE SALE OF SELLER’S PRODUCTS THROUGH THE AFRO NALA SITE PURSUANT TO THIS AGREEMENT, AND ALL SUCH SERVICES PROVIDED BY AFRO NALA MARKETPLACE ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS.
23.2. AFRO NALA MARKETPLACE AND ITS AFFILIATES, EMPLOYEES, DIRECTORS, OFFICERS, AGENTS, LICENSORS AND SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS AND THOSE IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE.
24. LIMITATION OF LIABILITY
No Consequential Damages
24.1. IN NO EVENT SHALL AFRO NALA OR AFRO NALA MARKETPLACE BE LIABLE TO SELLER OR ANY THIRD PARTY UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR:
24.1.1. LOST PROFITS, LOST REVENUE, LOSS OF BUSINESS OR LOSS OF DATA;
24.1.2. EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR THE LIKE; OR
24.1.3. FOR COST OF COVER, RECOVERY OR RECOUPMENT OF ANY INVESTMENT, EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER AFRO NALA MARKETPLACE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Monetary Cap
24.2. IN NO EVENT SHALL AFRO NALA MARKETPLACE’S AGGREGATE LIABILITY TO SELLER OR ANY THIRD PARTY FOR ANY CLAIMS, LOSSES, INJURIES, SUITS, DEMANDS, JUDGMENTS, LIABILITIES, COSTS, EXPENSES OR DAMAGES FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION OR LEGAL THEORY, EXCEED THE TOTAL REFERRAL FEES PAID BY SELLER TO AFRO NALA MARKETPLACE PURSUANT TO THIS AGREEMENT DURING THE SIX MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. THE LIMITATIONS OF LIABILITY REFLECT THE ALLOCATION OF RISK BETWEEN THE PARTIES. THE LIMITATIONS SPECIFIED IN THIS SECTION WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
25. INSURANCE, RISK, AND OWNERSHIP
Insurance
25.1. Vendor will maintain, at Vendor’s expense, commercial general, umbrella and/or excess liability in the aggregate covering liabilities caused by or occurring in connection with this Agreement or Vendor’s business (including without limitation, product, completed operations, hijacking, overturning and bodily injury), or as otherwise required by Afro Nala Marketplace from time to time. All such policies will be occurrence based, will include Afro Nala Marketplace as an additional insured, and will contain a waiver of subrogation.
25.2. The Vendor acknowledges that it shall retain all risk in and to the Products until the Products have been delivered with a proof of delivery signed by the Customer. Ownership in and to the Products shall pass to the Customer when the Products have been delivered with a proof of delivery signed by the Customer.
26. CHOICE OF LAW, JURISDICTION AND VENUE
26.1. The Parties mutually acknowledge and agree that this Agreement will be construed and enforced in accordance with the Laws of the Republic of South Africa and without regard to any conflict of law provisions. The Parties agree that in any dispute arising from or related to this Agreement, shall be subject to the exclusive jurisdiction of the South Gauteng High Court, Johannesburg. The Parties mutually acknowledge and agree that they will not raise in connection therewith, and hereby waive, any defenses based upon venue, inconvenience of forum or lack of personal jurisdiction in any action or suit brought in accordance with the foregoing. The Parties acknowledge that they have read and understand this Section and agree voluntarily to its terms.
27. GENERAL
27.1. Assignment. Vendor may not assign (including, without limitation, by way of merger, consolidation or sale of all or substantially all of Vendor’s stock or assets) this Agreement, or any of its respective rights or obligations hereunder, without the prior written consent of Afro Nala Marketplace. Subject to the foregoing, this Agreement will be binding upon, and will inure to the benefit of, the Parties and their respective successors and permitted assigns. Any assignment or assumption without Afro Nala Marketplace’s prior written consent will be null and void.
27.2. Integrated Agreement. This Agreement, including all Annexures and policies referenced herein, constitutes the complete integrated agreement between the Parties concerning the subject matter hereof. All prior and contemporaneous agreements, understandings, negotiations or representations, whether oral or in writing, relating to the subject matter of this Agreement are superseded in their entirety.
27.3. Amendments. Afro Nala Marketplace may amend the terms of this Agreement (including without limitation, any Annexures hereto) from time to time and will either post such amendments to the Vendor Portal (“Amendment Notice”). If Vendor objects to any amendment to the terms of this Agreement (including any Annexure hereto), Vendor should terminate this Agreement IF SELLER CONTINUES TO PARTICIPATE IN THE MARKETPLACE PROGRAM AFTER THE EFFECTIVE DATE OF ANY AMENDMENT, SELLER WILL BE DEEMED TO HAVE AGREED TO AND ACCEPTED ANY MODIFICATIONS SET FORTH IN THE AMENDMENT.
27.4. Waiver. No waiver of any of the provisions of this Agreement will constitute a continuing waiver unless otherwise expressly so provided in writing. The failure of either Party to enforce at any time any of the provisions of this Agreement, will in no way be construed to be a present or future waiver of such provisions.
27.5. Severability. If any provision of this Agreement is found by a court to be invalid, void or unenforceable, the Parties agree that the remaining provisions of this Agreement will not be affected thereby, and that this Agreement will in any event otherwise remain valid and enforceable.
27.6. Where any provision of this Agreement constitutes a provision in favour of Afro Nala, such provision shall constitute a stiplulatio alteri capable of acceptance by Afro Nala at any time.
27.7. Independent Contractors. Afro Nala Marketplace and Vendor are acting hereunder as independent contractors. Vendor will not be considered or deemed to be an agent, employee, joint venture or partner of Afro Nala Marketplace. Vendor’s personnel will not be considered employees of Afro Nala Marketplace, will not be entitled to any benefits that Afro Nala Marketplace grants its employees and will have no authority to act or purport to act on Afro Nala Marketplace’s behalf. If any federal, state or local government agency, any court or any other applicable entity determines that any such personnel of Vendor is an employee of Afro Nala Marketplace for any purpose, Vendor will indemnify, defend and hold harmless Afro Nala Marketplace, its Affiliates, officers, directors, employees and agents from all liabilities, costs and expenses (including, but not limited to, reasonable attorneys’ fees) associated with such determination. Vendor will remain primarily liable for Vendor’s obligations performed by any third party and for any act or omission of any such third party.
27.8. Publicity. Except as specifically provided herein, neither Party will use the name, logo, trademarks or trade names of the other Party or otherwise, directly or indirectly, refer to the other party in publicity releases, promotional material, customer lists, advertising, marketing or business generating efforts, whether written or oral, without obtaining such Party’s prior written consent. Notwithstanding the foregoing, Afro Nala Marketplace will have the right to refer to Vendor as a participant in the Marketplace Program in marketing and promoting the Marketplace Program.
27.9. Nonexclusive. Each Party acknowledges and agrees that the rights granted to the other Party in this Agreement are nonexclusive and that without limiting the generality of the foregoing, nothing in this Agreement will be deemed or construed to prohibit either Party from participating in similar business arrangements as those described herein.
27.10. Force Majeure. Notwithstanding the other provisions of this Agreement, if either Party is in good faith prevented from performing its obligations under this Agreement because of an unexpected extraordinary event beyond the control of the Party concerned, including without limitation, war (declared or undeclared), acts of god, terrorism, earthquake, accident, explosion, fire or flood, such Party will promptly notify the other Party, and while so affected, the affected Party will be relieved from performing its obligations provided that, the Party affected will take all reasonable steps to promptly remedy the cause of such delay or failure if it is in its power to do so.
27.11. Vendor Dashboard Vendor is solely responsible for maintaining the security of its password for any Vendor Dashboard and for all action taken in connection with its account. If Vendor has knowledge or suspects that its password has been compromised, Vendor will immediately notify Afro Nala Marketplace and fully cooperate with Afro Nala Marketplace in investigating and preventing any further breach to Afro Nala Marketplace’s systems. Afro Nala Marketplace shall not be liable to the Vendor for any Losses it may suffer as a result of the Vendor Dashboard being unavailable for any reason.
ANNEXURE A
LIST OF PROHIBITED PRODUCTS
“Prohibited Products” means:
1. cigars, cigarettes, or other tobacco products;
2. guns intended to provide lethal force (and related gun parts, kits and ammunition); mace, black powder and other explosives; disguised, undetectable or switchblade knives; martial arts weapons; or BB guns, stun guns, paintball guns, or airsoft guns;
3. any drug, vitamin, herbal product or similar substance which requires a doctor’s or other health care provider’s prescription as a prerequisite for purchase;
4. used, remanufactured, reconditioned or refurbished products;
5. stolen, counterfeit, misbranded or illegal products;
6. products that have been recalled;
7. products that violate applicable Law;
8. products that violate or infringe upon any Intellectual Property Right or other third party right;
9. products that contain material that is obscene, pornographic or offensive;
10. products containing viruses, Trojan horse, spyware or malicious code;
11. ‘sex and sensuality’ products;
12. loose gemstone products;
13. any product for which Vendor is not an “authorized revendor” (as designated by the product’s manufacturer or distributor), or does not provide to Customers the manufacturer’s standard warranty therefor;
14. products containing human growth hormone;
15. any age restricted products;
16. baby bottles that are not BPA-free;
17. prepaid access products (whether issued in the form of a card, electronic PIN or other device) that provide access to funds (or the value of funds) that have been paid in advance and can be retrieved in the future, including without limitation, gift cards, prepaid phones, or prepaid minutes;
18. caskets or funeral urns;
19. specific products or brand names that may not be sold on the Afro Nala Site as are indicated by Afro Nala Marketplace to Vendor separately in writing (which in this case may include email or through any Vendor Dashboard); and
20. any other types of products that in Afro Nala Marketplace’s discretion are not appropriate for sale on the Afro Nala Site as indicated by Afro Nala Marketplace to Vendor separately in writing; provided that a Prohibited Product will cease to be a Prohibited Product when Afro Nala Marketplace informs Vendor of such change
ANNEXURE B
ORDER AND CUSTOMER SERVICE LEVEL AGREEMENT
Afro Nala Marketplace is committed to customer service. Vendors participating in the Marketplace Program will endeavor to meet the following service levels:
1. Vendor will maintain an On-Time Ship Standard of at least 99%.
2. Vendor will ensure that the correct Product is delivered to the correct Customer at a rate of 99.5% of all Products shipped.
3. Vendor will maintain inventory to fulfill Customer Orders that result in a cancel rate (excluding Customer requested cancellations) of 1.5% or less;
4. Returns due to damaged or defective Products shall not exceed 3% of Sales Proceeds for Products sold on the Afro Nala Site.
5. Vendor shall limit emergency updates related to product information through any Vendor Dashboard to a rate no greater than .03% of its entire SKU count in Afro Nala Marketplace’s catalogue per month; provided however, that Afro Nala Marketplace makes no guarantee that all requests will be granted. Afro Nala Marketplace will assess each emergency request on a case by case basis and make updates in situations Afro Nala Marketplace deems critical.
6. Ninety-day Vendor ratings shall, on average, remain above a vendor rating of 90% positive.
7. Vendor will send a refund request to Afro Nala Marketplace through the data feed specified by Afro Nala Marketplace, and on the Vendor Dashboard, within 24 hours of receiving a Customer refund or adjustment request, unless Vendor has refused to accept a Product for return for any reason.
8. Ninety percent (90%) of emails received from Afro Nala Marketplace shall be answered by Vendor within twenty four (48) hours of receipt.
Afro Nala Marketplace may, at its discretion, work with a Vendor to remedy any failure of a service level or performance issue under this Annexure B; provided, however, that no waiver by Afro Nala Marketplace of any provision of this Annexure B may be deemed or constitute a waiver of any provision of this Agreement, whether or not similar, nor may the waiver constitute a continuing waiver by Afro Nala Marketplace unless otherwise expressly so provided in writing. The failure of Afro Nala Marketplace to require at any time performance by Vendor of any of the provisions herein, may in no way be construed to be a present or future waiver of provisions or in any way affect the ability of Afro Nala Marketplace to enforce each and every provision after such event.
By agreeing to this agreement you also agree to our Terms and conditions.