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,
Giga Cloud Privacy 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:
5.1.1. Marketing User: If you download
content or subscribe for updates on Giga Cloud Platform, we will never disclose
your information to external parties and will always honor any request to be
removed, as per our privacy policy.
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:
5.2.2.1. 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.
5.2.2.2. 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. Selling
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:
7.2.1.1. Automate generation of your price quotes based on the
information (for example, tariffs) you provide via your use of the Giga Cloud
Platform;
7.2.1.2. Advertise and promote your goods on the Giga Cloud
Platform, subject to the configuration options you choose;
7.2.1.3. Facilitate some communication or document exchange between
you and the Buyer; and
7.2.1.4. 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.
7.2.1.5. 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.
11. Audit
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. Termination
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 help@gigacloudlogistics.com 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.
14. Indemnity
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 platform@gigaclouldlogistics.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.
16.7. Entire Agreement. This Agreement, together with all documents
which incorporate this Agreement (including any customer-specific purchase
orders or Statements of Work) and which are incorporated by reference into this
Agreement (including Giga Cloud Price List and Policies, including the Privacy
Policy, Copyright and IP Policy, Buyer Terms and Conditions, and Cookie Policy
– 1.4) constitutes the complete and exclusive agreement of the parties with
respect to its subject matter and supersedes all prior understandings and
agreements, whether written or oral, with respect to its subject matter.
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.
