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Conditions of Use

INTRODUCTION

Welcome to the themall.com.pk website (the "Site"). By registering and using the Site for advertising, listing, selling and buying products (the “Services”), you agree to be bound by the terms and conditions of the Site, including, without limitation, all policies, guidelines, notices and licenses of the Site that are incorporated by reference and/or updated from time to time (hereinafter referred to as the “Terms & Conditions”). Any revision in the Terms and Conditions shall become applicable to you upon being posted on the Site. In the event that you object to any change in the Terms and Conditions, may not use your account, failing which, your continued use shall be construed as your acceptance of the revised Terms and Conditions.




USER ELIGIBILITY

By registering for the Services, you represent and warrant that (i) you are at least eighteen (18) years of age or are accessing the Site under the supervision of a parent or legal guardian, (ii) If you are a business, you are organized, registered and working under the applicable laws, (iii) you have the requisite authority, permission and right to use the Site and/or the Services and perform any obligations that arise a result of using the Services (iv) any information provided by you shall be accurate and valid at all times. Upon successful registration, you will have a non-transferable, limited and revocable right to use the Site, in accordance with the Terms and Conditions, for the purpose of selling or buying products on the Site. Any breach of the Terms and Conditions shall result in the immediate revocation of the Services as well as the right to use the Site.



SERVICES POLICY

(1) As a seller, you agree to abide by all of the procedures, guidelines and policies for making sales through the Site, whether applicable at present or introduced at a later stage. In this regard, you agree that: 

(i) You will not engage in any activity that involves misleading and/or deceptive market practices, or any activity that violates the obligations owed towards buyers in general and/or the original owners of the items offered for sale by you. You will refrain from selling any items prohibited by the laws of Pakistan, including alcoholic beverages, adult only products, counterfeit currency, drugs, government documents, IDs of any kind, human remains and body parts, lottery tickets, prescription medicine, stolen goods or any other kind of regulated items. 

(ii) For each product that you intend to list or have listed and sell on the Site, you will provide to us the product price, quantity available for sale, description, warranty details and the country/province/city from which the product is to be shipped. In addition, you will provide to us any information requested, using the mechanism and time frame specified to you. 

(iii) In lieu of the necessary infrastructure to promote your services, you are liable to pay a percentage on every successful sale made (Pay As You Earn – PAYE). The exact percentage/amount of the PAYE is displayed here and may be subject to change. If the PAYE rate changes, we shall give you a notice of at least fourteen (14) days prior in advance during which period you have the time to discontinue the business relationship with the company. In this regard, we reserve the right to deduct the PAYE amount either from the sale proceeds and/or your credit/debit card or such other sources as deemed appropriate by us. In no event shall the PAYE amount remain unpaid from your end beyond a period of thirty (30) days from the date of the same becoming due. In addition to the PAYE amount, you will be required to pay other charges in respect of the Site and the Services. 

(iv) For all of your products that are not fulfilled using the our recommended fulfillment Services, you will accept and process returns, refunds and adjustments in accordance with the process specified to you by our management and agents. You will comply to all return policies published on the Site at the time of the applicable order, and we may inform buyers that these policies apply to your products. You will determine and calculate the amount of all refunds and adjustments (including any taxes, shipping and handling or other charges) or other amounts to be paid by you to buyers in connection with your transactions, using functionality we will enable for your account, and will route all such payments through us. We will provide any such payments to the buyers (which may be in the same payment form originally used to purchase your product), and you will reimburse the Company for all amounts so paid on your behalf. We may offset such payments against any amounts to be remitted or paid to you by us or our affiliates. We reserve the right to seek reimbursement from you via any of the means authorized under law. You undertake to promptly provide refunds and adjustments that you are obligated to provide under the applicable return policies and as required by law, and in no case later than thirty (30) days after the obligation arises. 

(v) If you, the seller, use our recommended logistics service, reimbursement of collected amounts minus PAYE amount, delivery charges, and other service charges, will be initiated through the creation of a formal invoice. This invoice will be submitted by you, the seller, to the Company. The Company will attempt to reimburse the payments after 14 to 18 days of the collection of the amounts. 

(vi)By agreeing to use our recommended logistics services you acknowledge that we have no control over the functionality and effectiveness of the shipment and delivery services. We will not be liable, whether directly or otherwise for any delay or failure in delivery of the products, whether to you or to the buyer. You agree to discharge, without limitation, the Company, its owners, directors, officers, employees, agents, successors and affiliates from and against any claim or liability arising due to interrupted, erroneous and negligent logistics services. 

(vii) We reserve the right to delay or suspend listing of, or to refuse to list, or to de-list, or to require you to not to list, any or all products in our sole discretion. We may in our sole discretion withhold for investigation, refuse to process, restrict shipping destinations for, stop and/or cancel any of your transactions. You will stop and/or cancel orders of your products if we ask you to do so (provided that if you have transferred your products to the applicable carrier or shipper, you will use commercially reasonable efforts to stop and/or cancel delivery by such carrier or shipper). You will refund any buyer that has been charged for an order that we stop, cancel or return. 


(2) As a buyer, you acknowledge that: i. You have fully read and understood all terms and conditions on the Site and do not have any confusion regarding the role of the Company as an intermediary. You acknowledge that the Company is not involved in the process of product developing, manufacturing or designing and that nothing contained on the Site gives an impression otherwise. ii. Upon committing to buy any product listed on the Site, you enter into a legally binding contract with the seller, which cannot be canceled, once it is in the process of being delivered to you. iii. You understand that the Company has no right, power or authority to transfer ownership of any product in your favor and any delay or failure in this regard shall be the sole and exclusive responsibility of the concerned seller. iv. By signing up, you agree and acknowledge that the Site or the Company makes no representation, or warranties, whether expressed or implied, for any product, with respect to its usability, fitness for a particular purpose, merchantability, use, title or quality. Any claim that you intend to initiate, whether under the prevailing consumer laws or otherwise, due to a product being unsatisfactory, shall only be made against the individual seller and the Company’s liability shall remain excluded. The procedures and guidelines regarding the Services may be changed and new terms may be incorporated in the future and any such changes shall be effective immediately upon being posted at the Site, without the requirement of providing an individual notice to you. Therefore, you are advised to refer regularly to the Terms and Conditions to understand the current procedures and guidelines for use of the Site and to be sure that the items you offer for sale can be sold on the Site.



RETURN OF PRODUCTS

(1) In case a product has been delivered to you, which does not match the description of the product you ordered from our Site or incase the product is delivered to you in a damaged condition, you may return the product to the seller, subject to our general returns policy [link] as well as the return policy of individual seller, if any. In this regard, individual seller return policies are provided with each product listed on the Site, which you undertake to thoroughly review, prior to making a purchase. (2) In case you have been selling the products, you agree to abide to the minimum standards of the themall.com.pk return policy [link] and at your sole discretion you may offer a more generous return policy to the buyer. You agree to bear the full cost of return in case you the product you have shipped to the buyer has been wrong, defective, damaged or incomplete.


EXCLUSION OF LIABILITY & INDEMNIFICATION

Our Site provides a platform for third-party sellers and buyers to complete transactions and we are not involved in the actual transaction between any sellers and buyers. As a seller, you will be permitted to list any product on the Site unless it is a prohibited product as per the Site guidelines or otherwise prohibited by law. Without limitation, you may not list any product or link or post any related material that (a) infringes any third-party intellectual property rights (including copyright, trademark, patent, and trade secrets) or other proprietary rights (including rights of publicity or privacy); (b) constitutes libel or slander or is otherwise defamatory; or (c) is counterfeited, illegal, stolen, or fraudulent. It is up to the Seller to accurately describe the item for sale. As a Seller, you shall use the Site and the Services at your own risk. In the event that any claim or legal proceedings are initiated against the Company as a result of your act or omission, you undertake to indemnify the Company, its affiliates, directors, employees and agents (hereinafter collectively referred to as the “Indemnified Parties” . you will indemnify the Indemnified Parties against any and all claims, costs, losses, damages, judgments, penalties, interest and expenses (including attorneys' fees) arising out of any claim that arises out of or relates to: (i) any actual or alleged breach of your representations, warranties, or obligations set forth hereunder; or (ii) your own website or other sales channels, the products you sell, any content you provide, the advertisement, offer, sale or return of any products you sell, any actual or alleged infringement of any intellectual property or proprietary rights by any products you sell or content you provide, or seller taxes or the collection, payment or failure to collect or pay seller taxes. for purposes hereof: "claim" means any claim, action, audit, investigation, inquiry or other proceeding instituted by a person or entity. The Company will not be liable for any damages of any kind, including without limitation direct, indirect, incidental, punitive, and consequential damages, arising out of or in connection with the Site, the Services, the transaction processing service, the inability to use the Services or the transaction processing service, or those resulting from any goods or services purchased or obtained or messages received or transactions entered into through the Services.




PAYMENTS AND TAXES

By agreeing to acquire our Services and registering to our Site, you permit and appoint us to act as your agent for the purposes of processing payments, refunds and adjustments for your transactions, including but not limited to receiving and holding sales proceeds on your behalf, remitting sales proceeds to your bank account and charging and deducting amounts you owe to the Company for utilizing the Services and the buyers of your products. In this regard, sales proceeds means the gross proceeds from any of your transactions, including all shipping and handling, gift wrap and other charges, but excluding any taxes separately stated and charged. You further agree that it is the seller's responsibility to determine whether any taxes apply to the transactions and to collect, report, and remit the correct taxes to the appropriate tax authority. We are not obligated to determine whether taxes apply and not responsible to collect, report, or remit any sales, use, or similar taxes arising from any transaction. The term "taxes" means any and all sales, goods and services, use, excise, import, export, value added, consumption and other taxes and duties assessed, incurred or required to be collected or paid for any reason in connection with any advertisement, offer or sale or sale of products by you on or through the Site, or otherwise in connection with any action, inaction or omission of you or any affiliate of yours, or any of your or their respective employees, agents, contractors or representatives.




DISPUTES

(1) Any dispute that you have or claim that you intend to initiate against the Company shall be subject to the provisions of the Arbitration Act 1947 (the “Act”). In this regard, the courts of Pakistan or any other court of law shall not have jurisdiction over any disputes and/or claim between you and the Company as arbitration proceedings under the Act shall be the sole mechanism for settlement of any such disputes. In the event that you intend to initiate arbitration proceedings, you shall be under an obligation to first lodge a written request, along with the details of your claim with our legal counsel (the “Arbitration Request”). In this regard, the contact information of our legal counsel will be provided on ‘as and when’ basis and upon request. Thereafter, if on the basis of the material provided in your Arbitration Request, it is concluded that sufficient grounds exist for initiation of arbitration proceedings, you will be notified accordingly, along with the details of the arbitrator (to be appointed by us), date and venue of the proceedings. Any award passed by the arbitrator shall be binding on the parties. The parties reserve the right to appeal against an arbitral award and/or apply to court for its execution. 
(2) Any disputes between the seller and third parties including buyers shall not extend to or incur liability of the Company. We shall not act as the agent, negotiator, umpire, arbitrator or judge in connection with resolving any disputes between participants related to or arising out of any transaction from the Services.



CONTENT USE

We reserve the right but not the obligation to review, monitor, edit anything that you submit to the Site and/or provide to us, including but not limited to, questions, reviews, comments, and suggestions (hereinafter collectively referred to as the "Submissions"). In addition to the rights applicable to any Submission, when you post comments or reviews to the Site, you also grant us the right to use the name that you submit, in connection with such review, comment, or other content. You shall not use a false e-mail address, pretend to be someone other than yourself or otherwise mislead us or third parties as to the origin of your Submissions. We further reserve the right to determine the content, appearance, design, functionality and all other aspects of the Site and the Services (including the right to re-design, modify, remove and alter the content, appearance, design, functionality, and other aspects of the Site and the Services and any element, aspect, portion or feature thereof.



TERMINATION

At any time, without the need to serve a prior notice, we reserve the right to terminate any or all of the Services. Upon termination, you shall immediately cease all access to and use of the Site and we shall, in addition to any other legal or equitable remedies, immediately revoke all password(s) and account identification issued to you and deny your access to and use of this Site in whole or in part. Any termination of the Services shall not affect the respective rights and obligations (including without limitation, payment obligations) of the seller or the buyer arising before the date of termination. You furthermore agree that the Site shall not be liable to you or to any other person as a result of any such suspension or termination.



INTELLECTUAL PROPERTY

We are not liable to verify the authenticity of the products offered for sale or sold at the Site. You represent and warrant that all products, including the trademarks, design and layout that they carry are original and you possess the request right, authority, license and permission to use the intellectual property rights attached to any such products. In the event that the products sold or offered for sale by you are found to be counterfeit and/or replicas or infringing in any manner, you shall bear the sole responsibility towards the original owner(s) and assure (in a manner required by us) to the original owner(s) that the Company and the Site has no involvement in verifying the authenticity of the products listed. 

In addition, you understand and acknowledge that nothing herein shall be construed as giving you the right or permission to use, copy, reproduce, imitate any content, comments, links, images, logos, designs, layouts etc. that belong to the Company (hereinafter collectively referred to as the “Company’s Intellectual Property”). No permission or grant extended to you in respect of the Services shall include the permission or grant to use or benefit from the Company’s Intellectual Property. In the event that you are found to benefit from or use the Company’s Intellectual Property in any manner, we reserve the right to, without prejudice, charge a royalty fee, as determined by us.



ENTIRE UNDERSTANDING

The Terms and Conditions, including any modification and/or revision, terms incorporated by reference, and the general terms and conditions of the Site, shall constitute the entire agreement of the parties with respect to the subject matter hereof, and supersedes and cancels all prior and contemporaneous agreements, claims, representations, and understandings of the parties in connection with the subject matter hereof. Provided, however, that the Company shall have the right to introduce new and/or revised Terms and Conditions, policies, rules and regulations from time to time, which shall be effective as and when posted on the Site



NO AGENCY

Subject to clause 5, the Company, site, sellers and buyers shall remain independent contractors and nothing contained herein will be inferred to create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. Nothing expressed or mentioned in or implied is intended or shall be construed to give to any person other than the parties hereto any legal or equitable right, remedy, or claim under or in respect to the Services. These Terms and Conditions and all of the representations, warranties, covenants, conditions, and provisions hereof are intended to be and are for the sole and exclusive benefit of the Company, you, and relying Buyers or Sellers.



NOTICES

Any notices to be sent to you shall be sent either through email and/or registered mail, fax, personal delivery, at the address provided at the time of registration at the Site. A notice sent through email shall deemed to be delivered to you immediately upon being sent and a notice sent through post/fax/personal delivery shall deemed to be delivered within twenty four (24) hours of being dispatched.

 



SEVERABILITY

If any provision of the Terms and Conditions shall be deemed unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from the remaining Terms and Conditions and shall not affect their validity and enforceability.



NO WAIVER

No delay, omission or failure in the exercise of rights by the Company shall be construed as a waiver unless the waiver is in writing and signed. Any single or partial exercise of a right or remedy will not preclude further exercise of any other right or remedy.