GIGA CLOUD LOGISTICS MASTER SERVICES AGREEMENT
This Master Service Agreement (“Agreement”) is entered by and between Giga Cloud Logistics (Hong Kong) Limited (“Giga Cloud”), a Hong Kong company, and you, and effective as of the date you accept this agreement (“Effective Date”). This Agreement governs your access to, and use of all of Giga Cloud’s sites and services, including but not limited to, b2b.gigacloudlogistics.com (“Giga Cloud Services”). b2b.gigacloudlogistics.com is called the “Giga Cloud Platform”.
1. Entering into this Agreement with Giga Cloud
By using Giga Cloud Services, you accept this Agreement, and you agree to be bound by all of its terms. If you are entering into this Agreement on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to this Agreement. In that case, “you” and “your” will refer to that company or other legal entity, except where context implies it is referring to you as an individual. If you don’t accept the terms of this Agreement, you cannot use any of Giga Cloud Services.
2. Relationship to other agreements
To the extent that there is a conflict between this Agreement and any other documents executed between you and Giga Cloud, including any Purchase Order or Statement of Work between you and Giga Cloud which references this Agreement, the provisions of this Agreement will govern, unless you agree otherwise with Giga Cloud in a written agreement.
There are also some other documents which operate in conjunction with this Agreement and which are incorporated into this Agreement by reference, namely:
Giga Cloud Price List (if you are consuming any for-pay services),
Giga Cloud Sellers Standard Operating Procedures (“Seller SOP” – if you are Selling),
Giga Cloud Copyright and IP Policy,
Terms and Conditions for Giga Cloud Services Buyers, etc.
You should read carefully all the relevant ones. These documents and this Agreement may be updated from time to time, and to the extent that there is a conflict between this Agreement and any of these documents, the provisions of this Agreement will govern.
3. Giga Cloud Services
3.1. Types of Service. As described further down in this section, we offer different types of services, provided by either our own company or through outside vendors (“Vendors”). These services can be provided through Giga Cloud Platform. Services include but are not limited to digital services (like quote comparison or online sales for Sellers), and physical services (like shipment transportation services facilitated by Vendors (“Freight Services”).
3.1.1. Services for Product Buyer: A company that chooses to compare, buy, and/or manage purchase of Goods through Giga Cloud Platform is a “Product Buyer”. If that’s you, you can use the Giga Cloud Platform to search for interested items, obtain quotes, place the order, confirm the purchase, manage payment, and/or arrange the shipment and warehousing.
3.1.2. Services for Product Seller: If you provide, offer to sell, and sell goods on Giga Cloud Platform, you are a “Product Seller” and you engage in “Selling”. Although Giga Cloud is not a Seller and not a party to any agreement between a Product Seller and a Product Buyer, we help you manage your rates, calculate prices, market your products on Giga Cloud Platform, receive orders on your behalf, act as your collection agent to collect payments via Giga Cloud Platform, provide warehousing and shipping services for your goods, etc.
3.2. We will sometimes use sub-contractors or other third parties as part of the Giga Cloud Services. When we do so, we will always remain responsible for all of our obligations under this Agreement.
4. Changes to the Agreement or Giga Cloud Services
4.1. Agreement. Given the dynamic nature of our business and industry, we may modify this Agreement at any time, at our sole discretion. If we do so, we’ll let you know either by posting the modified Agreement on the Site, posting a notice on the Site, or through other communications. Please review changes to this Agreement at the beginning of each calendar quarter and let us know by the end of that calendar quarter if any changes are not acceptable and you wish to terminate your relationship with us. Otherwise changes will become binding at the end of the calendar quarter following the change. If you don’t agree to be bound by the modified Agreement, then you will continue to be bound by any existing obligations under the agreement that was in place when you entered into an agreement for those services, however you will not be able to otherwise use Giga Cloud Platform.
4.2. Giga Cloud Services. As part of our efforts to continually improve the Giga Cloud Services, we may change or discontinue any part of the Giga Cloud Services at any time at our sole discretion. For example, we may remove a feature that users don’t use very often or add new features.
5. Registration and Intellectual Property Rights
5.1. Accounts and Users:
5.1.2. Giga Cloud Platform User Registration: You must create an account (“Account”) to use certain features of the Giga Cloud Platform and Giga Cloud Services. You can register for an Account via the Site or the Giga Cloud App, if any. It’s important that you provide us with accurate, complete and up-to-date information for your Account and you agree to update such information, as needed, to keep it accurate, complete and up-to-date. You agree that you won’t disclose your Account password to anyone and you will notify us immediately of any unauthorized use of your Account. You’re responsible for all activities that occur under your Account, whether or not you know about them.
5.2. Intellectual Property:
5.2.1. Giga Cloud IP: Subject to your rights described in Section 5.2.2, we exclusively own all rights, title and interest in, and to any software, tools, utilities, processes, inventions, devices, methodologies, specifications, documentation, techniques and materials of any kind used or developed by us in connection with provision of the Giga Cloud Services to you (collectively “Giga Cloud Materials”) as well as any text, data, images, information or other materials that are posted, generated, provided or otherwise made available by us through the Giga Cloud Platform (collectively “Giga Cloud Content”). Our rights expressly include all worldwide patent rights, copyright rights, trade secret rights, know-how and any other intellectual property rights (“Intellectual Property Rights”) in the Giga Cloud Materials and the Giga Cloud Content. You have no rights in any Giga Cloud Materials or Giga Cloud Content except as granted to you in this Agreement. You also cannot record or otherwise access or make use of our data with automated programs, software, or any other method of screen scraping.
5.2.2. Customer IP:
188.8.131.52. Customer Content: Subject to this Section 5.2, you represent and warrant that you exclusively own all rights, title and interest in and to any text, data, images, information or other materials posted, generated, provided or otherwise made available by you through the Giga Cloud Platform (“Customer Content”), including all Intellectual Property Rights in that Customer Content. You are solely responsible for the accuracy, quality, integrity, legality and reliability of all the Customer Content that you (or any Authorized User) submit to the Giga Cloud Platform. By making Customer Content available through the Giga Cloud Platform, you grant to Giga Cloud a non-exclusive, transferable, sublicensable, worldwide, royalty-free license to access, process, analyze, store, use, copy, and modify your Customer Content in connection with operating the Giga Cloud Platform and providing the Giga Cloud Services.
184.108.40.206. Anonymous Data and Reference Data. You grant us the right to use Customer Content to generate anonymous, statistical data based on such Customer Content (for example, an average price calculated across multiple Customers without naming those Customers), which will not identify you (“Anonymous Data”), and to use such Anonymous Data in any manner in which we see fit, including selling such Anonymous Data. This Anonymous Data is not Confidential Information for purposes of this Agreement and is owned by Giga Cloud. Similarly, in order to improve the Giga Cloud Services for you and others, Giga Cloud may make use of reference data, which is by its nature is not confidential or proprietary, including, but not limited to, formats of industry tariffs or tenders (i.e. column structures with no pricing data), carrier public surcharge data, carrier public “rack rate” prices, fee codes, commodity codes, public service schedules, and names/web sites of corporations (“Reference Data”) and this Reference Data is not Customer Content for purposes of this Agreement.
5.2.3. Software License: Most Giga Cloud features are provided to you as software-as-service accessible via the Site, but in certain situations we may provide software to install on your devices (“Installed Software”). We grant you a worldwide, non-exclusive, non-transferable and non-sublicensable license to download and install a copy of any Installed Software on a mobile device or computer that you own or control, and to run such copy of Installed Software solely in conjunction with your use of the Giga Cloud Services. You agree not to (i) copy the Installed Software, except for making a reasonable number of copies for backup or archival purposes; (ii) distribute, transfer, sublicense, lease, lend or rent the Installed Software to any third party; (iii) reverse engineer, decompile or disassemble the Installed Software; or (iv) make the functionality of the Installed Software available to multiple users (where the Installed Software is designed for a single user) through any means; and (v) use the Installed Software in any way other than the way it is intended to be used. You agree not to modify or create derivative works based on the Installed Software however. If you stop using the Giga Cloud Services, you agree to uninstall all copies of the Installed Software on your devices immediately.
5.2.4. Trademark License: We grant you a non-exclusive, non-transferable, non-assignable, royalty-free, worldwide license, without the right to grant sublicenses, to use the “Giga Cloud” name and logo on your list of vendors or list of technologies you use. All goodwill associated with the use of such name and logo inures to the benefit of Giga Cloud. You grant us a non-exclusive, transferable, assignable, royalty-free, worldwide license to list your name and logo on Giga Cloud’ list of customers (whether in a general customer list or a list of customers for a specific product, service or sector) and to publish your reviews. All goodwill associated with the use of your name and logo inures to your benefit.
5.2.5. Data License: From time to time we may make available certain industry data such as indicative pricing data, whether through our platform or not (“Giga Cloud Data”) or otherwise and in such event we may sell a non-exclusive, non-transferable, non-assignable, royalty-free license to you to copy and publish (but not modify) such Giga Cloud Data, subject to the terms and conditions of such license. Any Giga Cloud Data displayed on Giga Cloud Platform or associated sites may be used by you provided that you clearly acknowledge Giga Cloud as the source of such data together with a prominent link to Giga Cloud Platform with every copy of the Giga Cloud Data that you make, and also agree to fulfill any other Giga Cloud conditions communicated to you governing use of this Giga Cloud Data.
5.2.6. Reservation of Rights: We reserve all rights in and to Intellectual Property Rights, Software, Giga Cloud Materials and Giga Cloud Content not expressly granted to you under this Agreement.
5.3. Data Maintenance and Backup Procedures. We know how important your data is to you. We will use commercially reasonable efforts to store, secure, and backup your Customer Content. We will follow our standard storage, backup and archival procedures for all Customer Content submitted into the Giga Cloud Platform. In the event of any loss or corruption of Customer Content, we will use our commercially reasonable efforts to restore the lost or corrupted Customer Content from the latest backup of such Customer Content maintained by us. WE WILL NOT BE RESPONSIBLE FOR ANY LOSS, DESTRUCTION, ALTERATION, UNAUTHORIZED DISCLOSURE OR CORRUPTION OF CUSTOMER CONTENT CAUSED BY ANY THIRD PARTY. OUR EFFORTS TO RESTORE LOST OR CORRUPTED CUSTOMER CONTENT PURSUANT TO THIS SECTION 5.3 WILL CONSTITUTE OUR SOLE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY LOSS OR CORRUPTION OF CUSTOMER CONTENT IN CONNECTION WITH THE GIGA CLOUD SERVICES AND GIGA CLOUD PLATFORM.
6. Buying Products on Giga Cloud Platform
6.1. Buying Products:
6.1.1. Quotes: You can use the Giga Cloud Platform to look for goods offered by Product Sellers and to request price quotes and related terms for purchase of the goods (“Quotes”).
6.1.2. Representations: If you are a Product Buyer, by using the Giga Cloud Services you represent to Giga Cloud and to Product Sellers that you hold all the necessary authorization to legally procure any goods that you buy.
6.2. Accepting Quotes:
6.2.1. Orders: When you accept a Quote, we create an “Order” on your behalf which is a legally binding agreement between you and the Product Seller who provided that Quote. Product Sellers, not Giga Cloud, are responsible for fulfilling the orders. The identity of the product Seller will be clearly marked on the Quote. As a Buyer, you agree to accept any terms, conditions, rules, and restrictions associated with such goods that are imposed by the Product Seller. You acknowledge and agree that you, and not Giga Cloud, will be responsible for performing the Buyer’s obligations of the Order and any other contracts with Sellers.
6.2.2. Grace Period: From time to time to improve the usability of the Giga Cloud Platform, and in our absolute discretion, we may set a grace period of a specified duration (for example, 24 hours) after an Order is made (“Grace Period”), during which either you or the Product Seller may cancel the Order for any reason, and in the event of such a cancellation, you and the Seller will have no further responsibility to one another for the canceled Order. If a Grace Period applies, we will state this clearly at the time that the Order is made.
6.3. Giga Cloud is Not the Seller. We help you find Quotes from Product Sellers, but we are not a Seller and we don’t sell goods. Sellers are not agents, contractors, or otherwise affiliated entities of Giga Cloud. We don’t endorse any Sellers, and we don’t in any way supervise, direct or control a Seller’s performance of selling goods, nor do we warrant that any Seller will meet your expectations in the quality of the goods. We are not obliged to conduct background checks on any Product Seller, but we might do so on a discretionary basis. In order to assist you, we may publish reviews of Products Sellers or the particular Sellers from time to time, but we don’t guarantee the accuracy of any reviews and warn you that reviews can be misleading. Your access to and use of the Giga Cloud Services is at your own risk and we encourage you to do you your own research and due diligence on any Seller with which you may engage through an Order, just like you would if you found a Seller outside of the Giga Cloud Platform. We do act as collection agent for Sellers so if you have purchased goods from a Product Seller, Giga Cloud will have been authorized by the Product Seller to collect payment.
6.4. Disputes with Sellers. We encourage you to communicate directly with Product Sellers regarding any Orders that you make. If you have any concerns about any Order, you should try to resolve your concerns directly with the Product Seller in question. If you are not able to resolve your concerns with the relevant Seller, you can make a formal complaint to us and we will address such complaint as we consider appropriate under the circumstances. By using Giga Cloud Platform, you agree that any legal remedy or liability that you seek to obtain for actions or omissions of Product Sellers or other third parties will be limited to a claim against the particular Sellers or other third parties who caused you harm, and you agree not to attempt to impose liability on us, or seek any legal remedy from us with respect to such actions or omissions.
6.5. Buyer Payment Terms:
6.5.1. Giga Cloud as Payment Agent: You agree to pay the Seller for the Products associated with an Order. We act as the payment agent of the Seller (also known as agent of the payee). This means that we collect money from you on behalf of the Seller, which we then pass on to the Seller. At our discretion, we may request in respect of a particular Order that you pay the Seller directly, but any such Order remains an Order made through the Giga Cloud Platform. We have our own policies and practices as to how and where we collect money from you and how we pass that money on to the Seller. The terms of the payment policy applying to your Order will be presented to you at the time of making the Order and there may be further guidelines published from time to time in the Seller’s SOP and Buyers Terms and Conditions.
6.5.2. Quotes: You agree to pay the amounts presented to you in a Quote for an Order you make with a Seller, and any other amounts that you owe to the Seller in connection with an Order. You also agree to provide any documentation reasonably requested by a Seller for the purposes of your Order and you are responsible for the accuracy and timely submission of such documentation to the Seller, whether that occurs through the Giga Cloud Platform or otherwise. We will use reasonable efforts to ensure that Quotes displayed on the Giga Cloud Platform are all-inclusive. However, as we have already explained, each Seller has its own terms and conditions of sale which will apply to any Order you make with that Seller, and you may be charged an amount that is additional to the amount of the Quote in certain circumstances. Similarly, most Sellers will disclaim liability for delays caused by force majeure events including weather and strikes.
6.5.3. Changes to Payment Policies: In our continued effort to improve the Giga Cloud Services, we reserve the right to make changes to our payment policies and practices at any time, for any reason and without advance notice to you. We will always make the current payment policy and practice clear at the time of making an Order. We may sometimes at our discretion offer different payment options such as the ability to pay in different currencies or through different payment mechanisms. We may also offer certain Buyers credit to make a payment at a later date. We reserve the right to charge extra fees for these arrangements (“Processing Fees”) and if you select these services, your payment obligation with respect to such Processing Fees is directly to Giga Cloud and you agree to pay these Processing Fees to Giga Cloud.
7.1. Selling Goods:
7.1.1. Where You Can Sell: If you sell goods, you can use the Giga Cloud Platform to sell your goods to Product Buyers. As a Seller, you will use your own Account to control which (if any) of your goods are actively offered to Buyers through the Giga Cloud Platform. You may also have the opportunity to filter which categories of Buyers see Quotes generated for your goods.
7.1.2. Representations: If you are a Seller, by using the Giga Cloud Services you represent to Giga Cloud and to Buyers that you hold all necessary ownership titles, permits, and authorizations to sell the goods that you provide. You also understand that given the nature of the business and in order to be in compliance with applicable laws and regulations we may be required from time to time to request that you provide us with data about your company or shipments which we reasonably require for compliance and financial purposes and you agree that continued sales on the site may be subject to receipt of the requested data.
7.2. Giga Cloud acts as a facilitator of trade between Buyers and Sellers, and in this capacity Giga Cloud provides you with the following services and also acts as your collection Agent:
7.2.1. Giga Cloud will:
220.127.116.11. Automate generation of your price quotes based on the information (for example, tariffs) you provide via your use of the Giga Cloud Platform;
18.104.22.168. Advertise and promote your goods on the Giga Cloud Platform, subject to the configuration options you choose;
22.214.171.124. Facilitate some communication or document exchange between you and the Buyer; and
126.96.36.199. Act as your Collection Agent to collect payment from Buyers on your behalf (also known as agent for payee). By accepting this Agreement, you appoint us as your limited agent just for the purposes of collection. Once we collect payment due, you agree that you have no claims against Buyer for such payment. Contract with Buyer: If a Buyer engages you by making an Order, the Order agreement and any subsequent agreement that you enter into with the Buyer will be between you and the Buyer only. We don’t act as your insurer, broker, contracting agent or another representative. You acknowledge and agree that you, and not Giga Cloud, are and will be responsible for selling the goods and performing your other obligations under of any agreements with Buyers, and we are not a party to such agreements and disclaim all liability arising from or related to such agreements.
188.8.131.52. Occasionally we may need your help collecting from a Buyer. We may request and you agree that a shipment purchased through Giga Cloud Platform not be released so long as the Buyer of that shipment owes money to any Seller.
7.2.2. No Endorsement of Buyers: We don’t endorse any Buyers. We are not obliged to conduct background checks on any Buyer, but we might do so on a discretionary basis and we may vet particular Buyers from time to time. Your access to and use of Giga Cloud Platform and Giga Cloud Services is at your own risk and we encourage you to do your own research and due diligence on any Buyer with which you may engage through an Order, just like you would if you found a Buyer outside of Giga Cloud Platform.
7.2.3. No Endorsement of Sellers: We don’t endorse any Product Seller, and using the Giga Cloud Platform or Services does not mean that you or your goods are endorsed in any way by us. We don’t necessarily conduct background checks on any Seller, but we reserve the right to do so on a discretionary basis and you agree to cooperate with us and to provide us with all information we request from you in the event that we decide to conduct a background check on you as well as accurate information for us to place in your profile in the Giga Cloud Platform. You are not an agent, contractor, employee or affiliated entity of Giga Cloud and we do not in any way supervise, direct or control your performance of Freight Services.
7.3. Disputes with Buyers. Disputes with Buyers shall be governed by the relevant provisions in the Seller’s SOP. By using Giga Cloud Platform, you agree that any legal remedy or liability that you seek to obtain for actions or omissions of Buyers or other third parties will be limited to a claim against the particular Buyers or other third parties who caused you harm and you agree not to attempt to impose liability on us, or seek any legal remedy from us with respect to such actions or omissions.
7.4. Seller Fees:
7.4.1. Quote and Applicable Terms: You agree that the price that a Buyer will pay for your goods is the amount specified in the Quote selected by the Buyer. Although the Quotes are generated through Giga Cloud Platform, they are still your Quotes and you are bound by the Quote which is selected by the Buyer. It is your obligation to ensure the accuracy and currency of tariffs, data and other Customer Content provided to us through Giga Cloud Platform. We encourage you to regularly check and test to ensure that details such as prices, transit time and terms and conditions are displayed correctly and that the Quotes generated by Giga Cloud Platform on your behalf for your goods are accurate and meet your requirements.
7.4.2. While we are in no way a party to the Order agreement between you and Buyer, we do want to help Buyers and Sellers to have a more predictable experience when they meet each other on Giga Cloud Platform. You therefore agree that in certain circumstances, specified by Giga Cloud, the terms listed under “GIGA CLOUD PRODUCT SELLER’S GENERAL TERMS AND CONDITIONS” will become part of your Quote and therefore of the Order agreement between you and the Buyer, subject to any conflicting terms imposed by you as Seller in a particular Order which will take precedence.
7.4.3. Remittance of Funds: We will charge you a marketing success fee for each Order made with you by a Buyer (a “Seller Fee”). Seller Fees are described in the Giga Cloud Price List. We reserve the right to change the Seller Fees from time to time but we will notify you of any changes in advance of their implementation. We will invoice you for the Seller Fees and either (i) deduct the Seller Fees from the payments made by Buyers collected by us on your behalf before remitting funds to you, in which case you authorize us to make such deduction, or (ii) in case we don’t make such deduction you agree to pay the Seller Fees within thirty days of the date of an invoice we send you.
7.4.4. Payment Policies: We aim to have our Sellers paid in a timely and convenient manner. We have our own policies and practices as to how and when we collect money from Buyers and how we pass that money on to you, and under what circumstances (if any) we guarantee payment to you if a Buyer doesn’t pay us. We reserve the right to make changes to our payment policies and practices at any time and for any reason, but we will notify you of any changes by email and/or posting to the Giga Cloud Platform.
7.5. Non-Circumvention. When a specific Buyer makes an Order with you through Giga Cloud Platform (“Initial Order”) for goods, Seller and Buyer both agree that for at least twelve (12) months Seller will not target or directly sell goods to Buyers introduced through Giga Cloud Platform for 12 months from the introduction of such Buyer and Buyers shall not deal directly with Seller introduced through Giga Cloud Platform (“Non-circumvention”). We reserve the right to charge you Sellers and Platform Fees, to terminate or suspend your Account, or to do any combination of the foregoing in respect of any breach of this Section by you. Non-circumvention will not apply if the same Buyer had ordered goods from Seller’s organization in the six months prior to the Initial Order. Non-circumvention will also not apply if a different part of Seller’s organization sells to the Buyer coincidentally, without being aware of any Order from that Buyer that came through Giga Cloud Platform, or if the sale is the result of a general solicitation which would have occurred irrespective of whether Seller and Buyer were previously introduced by Giga Cloud Platform. Non-circumvention will not apply with respect to selling goods which are not offered through Giga Cloud Platform.
8. Mutual Non-Disclosure Agreement
8.1. Confidential Information. “Confidential Information” means: (i) Giga Cloud Materials and Giga Cloud Content; (ii) Customer Content; (iii) any business or technical information that a party discloses to the other party and designates as “confidential” or “proprietary” at the time of disclosure; and (iii) any information that, due to its nature or the circumstances of its disclosure, the receiving party knows or has reason to know should be treated as confidential or proprietary.
8.2. Exclusions. Confidential Information does not include information that: (i) is or becomes generally known to the public through no fault or breach of this Agreement by the receiving party; (ii) is rightfully known by the receiving party at the time of disclosure without restrictions on use or disclosure; (iii) is independently developed by the receiving party without use of the disclosing party’s Confidential Information; or (iv) is rightfully received by the receiving party from a third party, who has the right to provide such information and who provides it without restrictions on use or disclosure. In addition, if a company sets up a Business Account and associates Authorized Users’ Accounts with the Business Account as contemplated in Section 5.1, Customer Content will be accessible by all associated Account holders via the Giga Cloud Platform and Giga Cloud Services, subject to the Giga Cloud Platform settings created by the Business Account holder. Similarly, data may be shared between linked Business Accounts of affiliated businesses.
8.3. Use and Disclosure Restrictions. Each party will not use any Confidential Information disclosed by the other party except as necessary for the performance or enforcement of this Agreement and will not disclose such Confidential Information to any third party except to those of its employees and subcontractors who have a bona fide need to know such Confidential Information for the performance or enforcement of this Agreement; provided that each such employee and subcontractor is bound by a written agreement that contains use and nondisclosure restrictions consistent with the terms set forth in this Section. Each party will employ all reasonable steps to protect all Confidential Information disclosed by the other party from unauthorized use or disclosure, including, but not limited to, all steps that it takes to protect its own information of like importance. The foregoing obligations will not restrict either party from disclosing such Confidential Information: (i) pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided that the party required to make such a disclosure gives reasonable notice to the other party to contest such order or requirement; (ii) to its legal or financial advisors; (iii) as required under applicable securities regulations; and (iv) subject to customary restrictions, to present or future providers of venture capital and/or potential private investors in or acquirers of such party.
8.4. Order Details. Inter-business documents which are used for business purposes such as Quotes, Orders, Invoices and Receipts and relevant communications will be shared between the applicable Buyers and Sellers as part of the functionality of the Giga Cloud Services.
9. General Use
9.1. Acceptable Use. You agree not to do any of the following in connection with your use of the Giga Cloud Services:
9.1.1. Post, upload, publish, submit or transmit any Customer Content that: (i) infringes, misappropriates or violates a third party’s Intellectual Property Rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances.
9.1.2. Use, display, mirror or frame the Giga Cloud platform or any individual element within Giga Cloud, Giga Cloud’ name, any Giga Cloud trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, unless expressly allowed under the terms of this Agreement;
9.1.3. Access, tamper with, or use non-public areas of the Giga Cloud Platform or Giga Cloud computer systems;
9.1.4. Attempt to probe, scan or test the vulnerability of any Giga Cloud system or network or breach any security or authentication measures;
9.1.5. Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Giga Cloud or any of Giga Cloud’s providers or any other third party (including another user) to protect Giga Cloud or Giga Cloud Content;
9.1.6. Attempt to access or search Giga Cloud, Giga Cloud Content or Customer Content, or download Giga Cloud Content or Customer Content from Giga Cloud Platform through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Giga Cloud or other generally available third-party web browsers;
9.1.7. Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other forms of solicitation;
9.1.8. Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing Giga Cloud or Giga Cloud Platform;
9.1.9. Collect or store any personally identifiable information from Giga Cloud Platform or regarding other users of the Giga Cloud Services without their express permission;
9.1.10. Impersonate or misrepresent your affiliation with any person or entity;
9.1.11. Violate any applicable law or regulation;
9.1.12. Encourage or enable any other individual to do any of the foregoing.
9.2. Our Enforcement Rights. Although we’re not obligated to monitor access to or use of Giga Cloud Platform or to review or edit any Customer Content, we have the right to do so for the purpose of operating the Giga Cloud Platform, to ensure compliance with this Agreement, to comply with applicable law or other legal requirements, or to improve the user experience. We reserve the right but are not obligated to remove or disable access to any Customer Content, or any Account, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any Customer Content to be objectionable or in violation of this Agreement. We have the right to investigate violations of this Agreement or conduct that affects Giga Cloud. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law. We may also use third parties, including collection agents, to help us enforce this Agreement.
9.3. Compliance. We comply with all applicable laws and expect Giga Cloud Platform Buyers and Sellers to do the same. By entering into this Agreement you undertake to comply with all applicable laws, rules, and regulations, including without limitation sanctions, anti-corruption, anti-money laundering, and tax laws in your performance of this Agreement.
10. Digital Millennium Copyright Act (DMCA)
Giga Cloud respects and complies with copyright law, and expects its users to do the same. It is our policy to terminate in appropriate circumstances Account holders and users who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. Please see our Copyright and IP Policy for further information.
If you’re a Seller, during the term of this Agreement and for one year following termination, you will maintain complete and accurate books and records regarding your use of Giga Cloud Services. During this time, we have the right to inspect and audit such books and records for the purpose of confirming your compliance with the terms of this Agreement. Any audit will be conducted by a reputable firm of certified public accountants during regular business hours and in a manner that minimizes interference with your normal business activities. We won’t examine records relating to your business generally, independent of your use of the Giga Cloud Services. If we discover any payment error in the audit, the party in whose favor the error was made will pay the other the amount of the error. We will pay for the audit unless the audit uncovers payment errors in our favor of five percent (5%) or more of the total amount of Seller Fees paid by you to us under this Agreement. In this case, you must pay for the cost of the audit and all our related expenses.
12.1. Term. This Agreement will commence when you accept its terms, and unless terminated earlier in accordance with the terms of this Agreement, will remain in force and effect for as long as you maintain an account with us.
12.2. Termination of Accounts. We may terminate your access to and use of the Giga Cloud Platform, including your Business Account or Account, at our sole discretion, upon 90 calendar day notice. However, given the importance of maintaining the integrity of our platform for all users, if we have reason to suspect abuse or a substantial breach of this agreement, we may terminate your Account at any time at our sole discretion and will only provide notice if we feel it is reasonable and feasible to do so. You may cancel your Account at any time by sending an email to us at firstname.lastname@example.org or by using the cancellation feature on the Giga Cloud Platform.
12.3. Effect of Termination. Upon the expiration or termination of this Agreement, you will no longer be able to access and use Giga Cloud Platform or Giga Cloud Services and each party will promptly return to the other party or destroy all Confidential Information of the other party in its possession or control.
12.4. Orders that are Still in Process. If you are a Seller, in the event that upon the expiration or termination of this Agreement, a Buyer has a copy of a valid unexpired Quote from you, and wishes to place an Order, or the performance of Freight Services and /or purchase of goods under an Order made through the Giga Cloud Platform is ongoing, the expiration or termination of this Agreement will not affect the terms of such Quote or Order. Sellers are obligated and agree to carry out the obligations specified in such Order to completion in accordance with the terms of the agreement between the Seller and Buyer for the Order in question and Buyers are obligated and agree to fulfil their obligations under such Order, including payment obligations to us pursuant to Section 7.5(a).
12.5. Survival. The rights and obligations of the parties contained in the following Sections will survive termination of this Agreement or any Statement of Work: Intellectual Property; Data Maintenance and Backup Procedures; Disputes with Sellers; Disputes with Buyers; Non-Circumvention; Mutual Non-Disclosure Agreement; Our Enforcement Rights; 13 (Audit); Effect of Termination; Orders that are Still in Process; Survival; Warranties; Indemnity and Limitation of Liability.
13. Disclaimer of Warranties
THE GIGA CLOUD PLATFORM AND GIGA CLOUD SERVICES ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WE MAKE NO WARRANTY THAT USING GIGA CLOUD OR GIGA CLOUD SERVICES WILL RESULT IN HIGHER NUMBERS OF CUSTOMERS OR INCREASED REVENUE FOR YOU OR YOUR BUSINESS. WE MAKE NO WARRANTY THAT THE GIGA CLOUD PLATFORM OR GIGA CLOUD SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS.
You will indemnify, defend and hold Giga Cloud and its officers, directors, employee, and agents harmless, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (i) your access to or use of Giga Cloud Platform or Giga Cloud Services, (ii) your Customer Content, or (iii) your violation of this Agreement.
15. Limitation of Liability
NEITHER GIGA CLOUD NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE GIGA CLOUD SERVICES OR GIGA CLOUD PLATFORM WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE GIGA CLOUD SERVICES OR GIGA CLOUD PLATFORM, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT GIGA CLOUD HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED IN ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION WILL APPLY TO YOU TO THE DEGREE ALLOWED BY LAW.
IN NO EVENT WILL GIGA CLOUD’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE GIGA CLOUD SERVICES OR GIGA CLOUD PLATFORM EXCEED THE AMOUNTS YOU HAVE PAID TO GIGA CLOUD FOR USE OF THE GIGA CLOUD SERVICES IN THE 12 MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO LIABILITY, OR $10,000 IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO GIGA CLOUD, AS APPLICABLE.
THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE COMMERCIAL AGREEMENT BETWEEN GIGA CLOUD AND YOU.
16. General Provision
16.1. Assignment. You may not assign or transfer this Agreement, by operation of law or otherwise, without our prior written consent. Any attempt by you to assign or transfer this Agreement, without such consent, shall be void. We may assign or transfer this Agreement without restriction or your consent to an affiliated company or to a successor or acquirer, as the case may be, in connection with a merger or acquisition, or the sale of all or substantially all of our assets. Subject to the foregoing, this Agreement will bind and benefit the parties and their respective successors and assigns.
16.2. No Election of Remedies. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will not be deemed an election of remedies and will be without prejudice to its other remedies under this Agreement or available at law or in equity or otherwise.
16.3. Governing Law. This Agreement will be governed by and construed in accordance with the laws of Hong Kong, excluding its body of law controlling conflict of laws. Any disputes will be resolved exclusively by binding arbitration in Hong Kong.
16.4. Severability. If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, the remaining provisions of the Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.
16.5. Notices. Any notices or other communications provided by us under this Agreement, including those regarding modifications to this Agreement, will be given: (i) via email; or (ii) by posting to the Giga Cloud Platform. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted. Notices to Giga Cloud should be sent to email@example.com.
16.6. Waiver. Our failure to enforce any right or provision of this Agreement will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by our duly authorized representative.
16.8. Language. This Agreement may be translated from time to time for your convenience, but the English language version of the Agreement is the binding version.