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MERCHANT

TERMS AND CONDITIONS

Introduction

RECITAL Hive Resources Sdn. Bhd. (Company no: 202001016008) having its registered address at No 16-1, Jalan 2/23A, Taman Danau Kota, Off Jalan Genting Kelang, 53300, Wilayah Persekutuan, Kuala Lumpur (“Hive” or “Company”) is the owner and operator of an e-commerce marketplace business having its domain at https://www.hiveapp.asia and the mobile applications (Hive Apps, and Hive Merchant)(“the Platform”). These terms and conditions (“Terms”) are applicable to any party that has entered into a Merchant Agreement (“Agreement”) with Hive for the use of the Services, on the website or mobile app and/or other tools employed by Hive to communicate with Merchant (“Merchant App”), for the purpose of sale and purchase of Service(s). You (“Merchant”, “you”, “your”) represent and warrant that you are an adult of at least 18 years of age capable of entering into the Agreement and perform the obligations hereunder. By accessing, browsing and/or using the Platform and accessing the tools provided for Merchant, you irrevocably and unconditionally agreed to be bound by this Agreement, Terms and Conditions (“Terms”), and all Policies of the Platform. Hive and the Merchant are hereinafter collectively referred to as “Parties” and individually referred to as “Party” as the context may require. Hive reserves the right to change the Terms, Policies, the Schedules, any fees, procedures, Policies governing the Services, the Platform or Merchant App at any time in its sole discretion. These changes shall be notified to you from time to time through the Merchant App.

 

The newer versions of Terms and/Schedule(s), the Policies and procedures shall supersede the older versions.

1. Acceptance

A. You agree and understand that this Agreement is to be read together with the Terms, shall prevail over any other agreements, terms and conditions, policy, pre-contractual negotiations, and any other matters addressed herein.

B. You are responsible for reviewing any updates on Policies and procedures. If you disagree to any changes made to the Policies and procedures, you must discontinue the use of the Services, the Platform, Merchant App and this Agreement will be terminated.

2. Services for Merchants

A. Hive offers the Merchants the following general services consisting of:

  1. To collect payments from the sales proceeds, process Customer payments, refunds, and adjustments on behalf of Merchants;

  2. Remitting the Payment and paying to third parties including Customer any sums owed to them;

  3. Payment Protection Services for transactions made via the Platform;

  4. System for Users to submit comments and rating for the Service(s) purchased; and other services such as payment gateway services through third parties;

3. Commission and Payment Gateway Fees

A. Merchants will be charged for 30% Commission Fees for all Successful Transactions exclusive of any other applicable taxes.


B. Hive provides a platform for third-party Merchants and Customers to complete transactions. In consideration of such Services, Hive shall invoice Merchant the Service Fees in compliance with the Laws.


C. All fees chargeable on such Services are subject to the relevant taxes under all applicable laws and regulations.

4. Settlement

A. The Settlement shall be calculated by deducting Commission on all Successful Transactions in the following manner:

  1. Commission Fees shall be calculated based on the Original or Discounted Price.

 

B. Settlement shall be made by Hive to Merchant’s designated bank account within three (3) Business Days from the date of Service “Completed”.


C. Hive shall delay, suspend or cancel any Settlement in case Merchant breaches any terms of this Agreement.


D. Hive reserves the right to defer the Settlement to Merchant due to any expense or loss which may have arisen due to the Merchant’s fault, or in order to protect against the risk of liability or any other reason as may be specified under the Agreement, such expense or loss to include Penalties incurred pursuant to Merchant’s breach/non-compliance with any of the provisions of this Agreement and/or the Merchant Fulfilment SLA. The Settlement shall be deferred for the longer period of sixty (60) days following the initial date of suspension, or the completion of any investigation in relation to Merchant’s action and/or performance or the resolution of any
dispute.


E. Hive will withhold and or all Settlement owed to Merchant for six (6) months in any event of Chargeback and
fraudulent transaction.

5. Merchant’s Undertakings

A. By using the Platform and the Services, you undertake, represent and warrant that you will not directly or indirectly:

  1. manipulate the fee structure, the billing process or any fees owed to Hive;

  2. transfer your account to another party without Hive consent;

  3. copy, modify, or distribute the contents from the Platform and Hive Intellectual Property Rights without Hive consent;

  4. collect personal information about the Users or third-parties as may be available on the Platform without their consent;

  5. use existing Merchant’s accounts or create new Merchant’s accounts in order to circumvent or avoid, buying or selling limits, and other restrictions by Hive; and

  6. contact any Customer and will not enter into any direct arrangement with the Customer for any transaction of goods or offering services except by Hive consent.

B. You further undertake, represent and warrant that you will:

  1. comply with all applicable laws, Policies, ordinances, codes and regulations;

  2. pay all applicable taxes, duties and fees and other charges in connection with the Order;

  3. obtain all rights, licenses, permits or approvals for the pre-sale of Service(s), advertising and sales through the
    Platform, and will provide copies of these documents when requested by Hive;

  4. ensure all information provided for content is accurate and not misleading or deceptive;

  5. provide accurate, updated and complete information about the availability of workforce, washing bays and
    listing price of Service(s); and

  6. provide the updated, accurate, and complete documentation of company profile upon Merchant registration and will provide the updated, accurate and complete of renewed documentation of company profile to Hive.

C. In relation to Goods, you guarantee that the Service(s) listed, available and sold on the platform shall be:

  1. Which are legally authorised to sell or provide

  2. which are not violating Intellectual Property Rights of any third party;

  3. be responsible to ensure that the actual Service(s) sold meet all the relevant description and requirements provided by you. Hive reserves the rights to change the description if it deems inappropriate without prior notice at any time;

  4. you shall respond to such enquiry promptly with accurate and complete information when receive an enquiry from other users of the Platform via the Q&A section on your Service(s) page; and

  5. fulfil all Order for Services according to the accurate schedule(timing) and price. In any event of inadequate

  6. Washing Bay(s) to meet demand, you must suspend the sale of such Services(s) on the Platform until adequate bay is available.

D. You are prohibited from directly entering into a transaction with a Customer without using the Payment Protection

  1. Services provided by Hive on the Platform. All communications regarding transactions or potential transactions with other Users shall be made through the Platform.

  2. hereby agree in any event of breach of this Agreement and/or the Terms:

  • General Penalties - Hive reserves the right at its own discretion to impose such penalties as listed in Schedule 1 after investigation is initiated

  • Specific Penalties- Hive reserves the right at its own discretion to impose such penalties as listed in Schedule 2 after investigation is initiated.

6. Content

A. You undertake, represent and warrant that such content provided by you does not infringe the Intellectual Property Rights of the Company and/or any third party;


B. You understand and agree that you are solely responsible for the content which you post or share on the Platform in terms of accuracy, completeness and legality of Content. You shall indemnify Hive against all claims resulting from content posted, supplied or uploaded to the Platform by you.


C. You will provide accurate and up to date Content in English and must include all text, disclaimers, warnings, notices, labels or other indications required by law.


D. You hereby grant Hive a royalty-free, non-exclusive, right and license to us, reproduce, display, distribute, modify, reformat, create derivate works of, any and all of the Content Materials provided Hive will not alter any third party trademarks.

7. Hive’ Rights

A. Hive will rate your performance as a Merchant on our Platform based on our criteria and may make these ratings publicly available. You agree not to contest our decision in this matter.


B. In any event of dispute, Hive reserves the rights to have the final decision and not limited to suspend listing, or to refuse to list, or to de-list, any or all Goods that the Merchant listed for sale through the Platform or to deactivate the Merchant accounts.


C. Where it is deemed to be necessary, upon giving a written notification to Merchant, Hive may withhold investigation or refuse to process or to cancel any Order. For avoidance of doubt, any action taken by Hive pursuant to this clause shall be fair and just.


D. In the event of any Suspicious Transaction by the Customer, Hive reserves the right to reject any Order or payment of the Goods, in its sole discretion.


E. Hive shall handle the risk of credit card fraud in connection with the Order unless the fraud is linked directly or indirectly with Merchant.

8. Cancellation of Order

A. Cancellation by Customer

  1. Customers are allowed to cancel bookings until the scheduled period.

  2. In the event of a customer not showing up for their booking (no-show), full refund to customer via Hive Points to Hive User App, Hive Customer service team will help customer(s) to reschedule booking.

B. Cancellation by Merchant

  1. If any Order is cancelled due to reasons attributable to you, including but not limited to unavailability to provide Service(s), delay in providing the Service(s) and/or Service(s) wrongly advertised or wrongly priced by you, and/or where Order cancellation rate is not in compliance with the Merchant Service Levels, Hive shall be entitled to impose on you the General Penalties and/ or the Specific Penalties, in its sole discretion.

C. Cancellation by Hive

  1. Hive reserves the right, at its sole discretion, to cancel any Order where Hive is of the view that you are in breach or are potentially in breach of any of the Terms or this Agreement.

9. Management of Disputes

A. You hereby agree that Hive shall have the rights to settle any disputes on behalf of you if you are unable to respond to a Customer or unable to provide a satisfactory resolution to a Customer or unable to resolve a dispute in respect of any matter under this Agreement within such time period as set out in the Merchant Fulfilment SLA through Customer Service.


B. Where you receive enquiries, claims requests or escalated cases (“Enquiries”)from Customer Service, you shall respond to all of such Enquiries with accurate and complete information, and in a prompt and efficient manner, within twenty four (24) hours; and resolve all of such Enquiries within seventy-two (72) hours; from receipt of the said Enquiries, or at such other levels and within such time period as may be required under the Terms.


C. You shall comply with any instructions issued by Hive, through Customer Service, pursuant to any Settlement or decision; and any costs incurred in respect of the Settlement, including but not limited to refunds, return shipping costs and any other compensation shall be borne by you.

10. Merchant Fulfilment SLA

You agree to comply with the Merchant Fulfilment SLA as below. Failing to meet the minimum threshold for Merchant Fulfilment SLA, Hive shall review your performance and you shall undergo training if required by Hive.

11. Confidentiality

A. The Parties shall at all times keep confidential any information in respect of the officers, employees, agents, and professional and other advisers keep confidential any information, data and software furnished by one Party (“Disclosing Party”) to the other (“Receiving Party”) under the Agreement, whether in oral, written, graphic or machine-readable form, which may include but not limited to code, software tool specifications, functions and features, integration and shared data block specifications, financial statements, corporate and stock information, files, marketing strategies, business, Service(s) or acquisition plans, current business relationships or strategies and
Customer lists (“Confidential Information”). Failure to mark any of the Confidential Information as confidential, protected or Confidential Information shall not affect its status as part of the Confidential Information under the terms of the Agreement.


B. Confidential Information shall not include information which the Receiving Party can show by reference to documentary or other evidence that was rightfully in its possession prior to disclosure to it by the Disclosing Party or becomes available to the general public through no fault of the Receiving Party or independently developed by or for the Receiving Party, without access or reference to, or use of the Confidential Information or rightfully received by the Receiving Party from a third party without a duty of confidentiality or required to be disclosed by court order or operation of law, provided always that before disclosing any Confidential Information under court order or operation of law, the disclosing Party shall provide the other Party reasonable notice and the opportunity to limit such disclosure.


C. Nothing in this clause shall prevent the Receiving Party from disclosing Confidential Information where it is required to be disclose by court order or operation of law, provided always that before disclosing any Confidential Information under court order or operation of law, the Receiving Party shall provide the Disclosing Party reasonable notice and the opportunity to limit such disclosure.


D. The Receiving Party covenants and agrees that it shall not, except with the prior written consent of the Disclosing Party, at any time directly by itself or indirectly through any agent or employee or copy, modify, disclose, divulge, reveal, report, publish or transfer any Confidential Information to any person or entity, for any purpose whatsoever; or use Confidential Information for any purpose other than in connection with the Agreement.


E. The Receiving Party covenants and agrees that all right, title and interest in any Confidential Information shall be and shall remain the exclusive property of the Disclosing Party.


F. The provisions of this clause shall survive the termination of the Agreement for whatever cause or reason.

12. Personal Data Protection

A. In using the Website and collecting the Personal Data (as defined in the Act) of Customers of the Service(s)
(“Personal Data owners”), the Parties agree to limit the disclosure and processing of such Personal Data to such
extent as is required to carry out its respective obligations under the Agreement and for such other purposes as may
be required by law. The Parties agree to keep any such Personal Data confidential and in full compliance with the
applicable principles laid down under the Act.


B. The Merchant shall indemnify and hold harmless Hive and each of its employees, directors, and agents for any loss
or damage suffered as a result of breach of such infringement including third party claim, experts’ fees and any
costs of litigation.

13. Intellectual Property Rights

A. You shall ensure that all contents including without limitation listings, information, specifications, photographs, and Service(s) for sale as supplied or provided by Merchant do not infringe or violate trade mark rights, patent rights, copyrights, trade names, domain names, portrait rights, design rights, utility models, trade secrets, know-how, confidential information, database rights, software rights, and all various other Intellectual Property Rights subsisting in any part of the world belonging to third parties.

B. In an event of any reported infringement under this provision, Hive may at its sole and absolute discretion without any further notice to the Merchant take down the listing, information, specification and/or photograph complained of and suspend sales of the Merchant’s corresponding Service(s) until such time that Hive at its sole and absolute discretion deems that evidence provided is sufficient to prove that the complaints and/or that the alleged claims are invalid.

C. You are not entitled to use any Hive Intellectual Property Rights without Hive prior written consent.

D. This Agreement shall not be deemed to transfer the Intellectual Property Rights to Merchant unless by Hive instruction. Merchants will not decompile any software or reverse engineer any software or other Service(s).


E. You have no rights of ownership or title, license, or other Intellectual Property Rights including without limitation to software and data created, obtained and used under this Agreement.


F. You will use and process such software and data under this Agreement and will not claim any Intellectual Property Rights, sell, assign, license, publish, lease or exploit such software and date. You will immediately cease their use upon termination of the Agreement.

14. Limitation to Liabilities

A. Hive (including its officers, employees or agents) shall not be liable to the Merchant for any loss, liability, damages
including direct, indirect, punitive, incidental and consequential in connection with the Agreement or the Services,
costs, claims or expenses suffered or incurred by the Merchant as a result of the negligence, dishonesty, misconduct,
failure arising out or in any way connected with such dispute.


B. Hive will compensate Merchant for any direct damages as a result of Hive negligence, dishonesty, misconduct,
failure subject to Hive’ Rights.

15. Termination

A. This Agreement shall continue and remain in full force and effect unless terminated in accordance with this Agreement.


B. Hive reserves the right to terminate the Agreement immediately for any of the following:

  1. Merchant breach of any provision of the Agreement or any applicable laws or Policies and failing to remedy the same within fourteen (14) days after being notified; or

  2. Merchant passing a winding up resolution; or

  3. The issuance of an administrative order or the selling of any Merchant’s assets; or

  4. Merchant cease business operations.

C. Either party shall be entitled to terminate this Agreement without cause by giving two (2) months prior written notice of termination (“Notice of Termination”) to the other party.


D. Merchant will remain responsible for the fulfillment of any pending Order and Hive will fulfil any pending Payment obligation in accordance to the Agreement.

16. Miscellaneous

A. All capitalized terms are not otherwise defined herein shall have the meaning ascribed to the same in the Terms.


B. Hive, at its sole discretion, be entitled to make such amendments, variations, revocation, cancellation, substitution or waiver of, or addition or supplement to, any of the provisions of this Agreement provisions of this Agreement provided always that Hive shall notify the Merchant of such amendments, variations, revocation, cancellation, substitution or waiver in writing.


C. All stamp duties and penalties and solicitors’ fees in respect of this Agreement shall be borne and paid by the Merchant.


D. Any notices must be in writing unless otherwise agreed by the Parties.


E. Merchant shall not assign or attempt to assign any such rights or obligations to any third party without the prior written consent of the other Party hereto. Notwithstanding the foregoing, neither Party shall be required to obtain the prior written consent of the other Party in the event of a Change of Control, provided that the continuing, successor or purchasing corporation or other business entity or parent thereof, as the case may be, assumes or continue in full force and enforce the acquired Party’s obligations hereunder after such Change of Control. For avoidance of doubt, “Change of Control” as referred to in this clause 19 means the occurrence of any of the following in respect of a Party where the sale of all or substantially all the assets of such Party, or any merger, consolidation or acquisition of such Party with, by or into another corporation, entity or person, or any change in the ownership of more than fifty percent (50%) of the voting capital stock of such Party in one or more related transactions.


F. The Agreement shall form the entire agreement between the Parties and shall supersede all prior and subsequent agreements and correspondence whether written or oral between the Parties on the subject matter of the Agreement.


G. Any rights of the Parties shall not be considered as a waiver under the Term of Laws in case of breach of contract.


H. Hive does not act as the agent of either you or the Customer but acts as facilitator for dispute resolution. Consequently, you agree not to hold Hive liable and shall waive any claim you may have against Hive in respect of
any decision in respect of the dispute, and free and clear Hive of any encumbrances.


I. No Party will be liable to the other or be deemed to be in breach of the Agreement by delay or failure to perform any of its obligation due to Force Majeure. Hive shall at its option to suspend services of its obligations while such
event continues.


J. Any variation of these terms will be valid unless being notified, agreed and signed by both Parties.


K. The Agreement shall be governed by and construed in accordance with the laws of Malaysia.

SCHEDULE 1
GENERAL PENALTIES FOR BREACH / NON-COMPLIANCE

  1. Temporary suspension of the affected Service(s) listing until the problem/issue pertaining to the suspension is resolved by the Merchant. For avoidance of doubt, such a suspension shall be immediately lifted by Hive upon Merchant resolving the relevant problem/issue.

  2. Permanent suspension of the affected Service(s) listing.

  3. Temporary suspension of Merchant Account until the problem/issue pertaining to the suspension is resolved by the Merchant. For avoidance of doubt, such a suspension shall be immediately lifted by Hive upon Merchant resolving the relevant problem/issue.

  4. Permanent suspension of Merchant account.

  5. Cancellation of Transaction.

  6. Loss or forfeiture of all or part of Settlement Amount.

  7. Deferment of payment of all up to six (6) months or part of Settlement Amount.

  8. Set-off of any financial penalties imposed or costs to be recovered, against all or part of Settlement Amount, including future amounts as yet uncollected (where the existing Settlement Amount is insufficient to cover such penalties or costs).

  9. Limits placed on Merchant account privileges.

  10. Downgrading of Merchant rating status.

  11. Suspension or termination of membership.

  12. Pressing criminal charges.

  13. Claims for damages or loss caused by breach or non-compliance.

  14. Review, and/or reduction, and/or cancelation of current and/or future merchant incentives

SCHEDULE 2
GENERAL PENALTIES FOR BREACH / NON-COMPLIANCE

1. Price manipulation

  • Immediate suspension of the affected Service(s) listing until it is resolved by the Merchant. Such suspension shall be lifted immediately by Hive upon issue resolved by Merchant.

2. Provision of inaccurate and/or misleading description of Service(s)

  • Immediate suspension of the affected Service(s) listing until it is resolved by the Merchant. Such suspension shall be lifted immediately by Hive upon issue resolved by Merchant.

3. Making reference to, or naming any other e-commerce platform or similar/competing business

  • Immediate suspension of the affected Service(s) listing until the problem/issue pertaining to the suspension is resolved by the Merchant For avoidance of doubt, such a suspension shall be immediately lifted by Hive upon Merchant resolving the relevant problem/issue.

4. Failure to respond to Service(s) Enquiries from other users on the Platform

  • (Immediate suspension of Service(s) listing until Enquiry is satisfactorily attended to; and/or

  • Revision of Merchant Rating where performance does not comply with the required Merchant Service Level.


5. Direct dealing

  • Any General Penalties; and

  • Immediate suspension of the affected Merchant.


6. Breach of requirements for uploading of content
One of the General Penalties which is proportionate with the breach/non-compliance.


7. Failure to confirm receipt of Order within stipulated period

  • Cancellation of Order by Customer or Company; and/or

  • Revision of Merchant Rating.

8. Failure to provide promotional free gifts

  • Immediate suspension of the affected Service(s) listing until it is resolved by the Merchant. Such suspension shall be lifted immediately by Hive upon issue resolved by Merchant.

  • Revision of Merchant Rating; and/or

  • Recovery of costs for any compensation payable to Customer pursuant to any recovery or negotiation process conducted by Hive.

9. Order cancellation by Merchant

  • Any and all General Penalties or such other penalty as the Company shall determine at its discretion.

  • Specific penalties as follows:-


(i) For each Order cancellation falling below the minimum threshold for the Merchant Service Levels, monetary fine is RM10.00 per Order or Actual Selling price listed, whichever is higher.


(ii) For failure to meet the minimum threshold for the Merchant Service Levels for more than thirty (30) consecutive days, suspend of affected Service(s) listings for a maximum of fourteen (14) days; and


(iii) For repeated breaches across multiple Service(s) listings, temporary or permanent suspension of account.


10. Non-compliance with the provisions of the Cancellation, Returns and Refunds Policy

One of the General Penalties which is proportionate with the breach/non-compliance.


11. Non-compliance with Merchant Service Levels

One of the General Penalties which is proportionate with the breach/non-compliance.​