PARTIES

This Merchant Agreement is made between eTukuri (a trade name registered in the name of Maldives Post Limited) (hereinafter referred as “eTukuri”) and the store owner (hereinafter the “Merchant”) (eTukuri and Merchant hereinafter individually a “Party” and collectively “Parties”, as the context may require) for the activities provided by eTukuri to the Merchant of listing and selling products (hereinafter “Goods”) on eTukuri platforms (hereinafter the “Platform”), collecting, reconciling and executing all transactions involving the Merchant through the Platform as a payment processing agent for the Merchant, and other related content production, sales traffic activities and/or order fulfilment activities or such other activities provided by eTukuri to the Merchant (hereinafter “Activities”), as agreed in writing between eTukuri and the Merchant.   

RECITALS

Whereas, eTukuri, through the eTukuri Local Site, displays and distributes Merchant Content, including, without limitation, via syndication through the eTukuri Local Sites;  

Whereas, Merchant desires to participate in eTukuri Local Site and display Merchant Content through eTukuri and eTukuri Sites; 

Now, therefore, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:  

1.   DEFINITIONS 

“Affiliate” means any entity which controls, is controlled by, or is under common control of a Party. For purposes of this definition, “control” of an entity means having (i) direct or indirect ownership of the voting equity or beneficial interest of such entity, (ii) the right to vote for or appoint a majority of the board of directors or other governing body of such entity, or (iii) management or operational control of such entity. 

“eTukuri Local” or “eTukuri” means eTukuri’s shopping and products/services selling service. 

“eTukuri Sites” mean sites, applications and other properties on which Merchant Content is syndicated or displayed via eTukuri.

“Intellectual Property” means all copyright, patent, trademark, trade secret, moral rights, authorship and other proprietary rights, whether registered or unregistered relating to any content, data, device, code or asset of any kind, including, without limitation, all rights necessary for the worldwide development, manufacture, modification, enhancement, sale, licensing, use, reproduction, publishing and display of such content, data, device, code or asset. 

“Marks” means any trademarks, service marks, names, logos, or other graphics or branding elements owned, licensed or provided by a Party and/or its Affiliates under this Agreement.

“Merchant Content” means all data, information, functionality and content made available by  Merchant (and any products or services offered by Merchant in any of the foregoing) pursuant to this Agreement in whatever form, including, but not limited to, Merchant’s Site information, user information, information provided to create or log into Merchant’s eTukuri account, product specifications, product descriptions, inventory information, local availability information, pricing, taxes, shipping fees, product reviews, images, Merchant Marks and other product information.

“Merchant Sites” mean all sites, applications and other properties to which Merchant Content links or directs.

“Website” means any interface or dashboard, computer programs, APIs, File Transfer Protocol (“FTP”) sites, automated or partially automated data feed validators or uploaders, technologies, tracking tags, applications, links, or other tools, services, methods, procedures, designs and other proprietary rights, and any information, analytics or other data made available within such Software, owned and/or operated by eTukuri or a third party and made available to Merchant for installation, download or use in connection with the eTukuri Local platform (excluding any Software to the extent that it is governed by a separate agreement between Merchant and eTukuri, which separate agreement(s) shall remain in full force and effect), and any updates or revised or upgraded versions of any such Software.  

“Order” means the products and services purchased via the eTukuri website by the customer from the Merchant.

2.   IMPLEMENTATION AND DELIVERY  

• Merchant hereby agrees to provide eTukuri with, or otherwise make available to eTukuri, Merchant Content relating to Merchant’s product offerings. eTukuri may make available to Merchant the Software to facilitate Merchant’s provision of the Merchant Content or Merchant’s participation in the eTukuri Local Site, and, if Merchant elects to access the website, Merchant agrees that this Agreement does not grant Merchant any Intellectual Property in or to the Website, or any copies Merchant might make of the Website, other than a limited, nonexclusive, nontransferable right to use the Website to transmit Merchant Content to eTukuri or otherwise participate in eTukuri that will terminate upon the termination of this Agreement.  Merchant acknowledges that (i) Merchant’s use of the Website is voluntary and at Merchant’s own risk and (ii) eTukuri may make available information, analytics and other data within such Software for Merchant’s use only in pre-determined formats and for limited time period(s) consistent with eTukuri’s standard business practices, which may change from time to time.  Merchant may not and may not allow any third party to: (a) modify, copy, publish, license, sell, distribute or otherwise commercialize or create derivative works of the Website or any content associated with the Website; (b) rent, lease or otherwise transfer rights to the Website; or (c) use the Website in any manner that could impair eTukuri Site in any way or interfere with any third party’s use or enjoyment of any eTukuri Site. eTukuri makes no guarantees with respect to the availability or uptime of the Website. eTukuri may conduct maintenance on or change the method of access to the Website at any time without notice.

• Merchant represents, warrants and covenants that Merchant Content and Merchant Sites shall be free from any spyware, malware, virus, worm, Trojan horse, or other malicious or harmful code, or any software application not expressly and knowingly authorized by users prior to being downloaded or installed on their computer or other electronic device. Merchant shall be solely responsible for ensuring that the Merchant Content is current, complete and accurate.  In the event that the Merchant Content is or becomes outdated, incomplete or inaccurate, Merchant shall immediately act to correct the Merchant Content. 

• Merchant agrees that Merchant will not use any automated means, including, without limitation, agents, robots, scripts, or spiders, to access Merchant’s eTukuri account or to monitor or copy the eTukuri Sites or the content contained therein, unless those automated means are made available to Merchant directly from eTukuri or authorized in advance and in writing by eTukuri. The eTukuri Sites may contain robot exclusion headers and Merchant agrees that Merchant will not use any device, software or routine to bypass robot exclusion headers, or to interfere or attempt to interfere with the proper working of the eTukuri Sites. Without limitation to the foregoing, Merchant further agrees that Merchant will not take any action that imposes an unreasonable or disproportionately large burden on eTukuri’s infrastructure (as determined by eTukuri in its sole discretion).

3.   DISPLAY AND DISTRIBUTION

• Merchant hereby grants to eTukuri and its Affiliates a non-exclusive, worldwide, royalty-free, irrevocable, sub-licensable (through multiple tiers) and transferable license to exercise the Intellectual Property rights in the Merchant Content and Merchant Marks, as well as the right to transmit, store, copy, modify, distribute, use, publicly perform, publicly display, reformat, excerpt, and create derivative works of the Merchant Content and Merchant Marks, for displaying and making available the foregoing on any media known now or developed in the future, including, without limitation, eTukuri Sites. 

• Neither Party shall take any action inconsistent with the other Party’s ownership of its Marks, nor shall any benefits accruing from any use of Marks as expressly authorized herein automatically vest in the Mark owners. There are no implied licenses under this Agreement.  Each Party shall retain ownership of its own Intellectual Property, including, without limitation in the case of eTukuri. Merchant will obtain all rights and permissions necessary for eTukuri to use the Merchant Data as contemplated herein. Merchant will maintain a publicly available online privacy policy on each Merchant Site that: (i) provides notice of data collection practices related to its participation in eTukuri, including without limitation, use of a cookie, web beacon or other tracking mechanisms related to eTukuri; and (ii) complies with all applicable privacy laws, rules and regulations.    

• eTukuri specifically disclaims any warranty regarding the quantity, rank, location, placement and prominence of Merchant Content anywhere on the eTukuri Sites. eTukuri reserves the right to determine whether and where the Merchant Content will be displayed. eTukuri may elect to not display Merchant Content (or any portion thereof), or any of Merchant’s products, in its sole discretion. Additionally, eTukuri reserves the right to remove any Merchant Content from eTukuri Sites at any time for any or no reason, with or without notice to Merchant. Merchant agrees that eTukuri may display, store or otherwise use any content (including, without limitation, content that would constitute Merchant Content if provided by Merchant and user-generated content), artwork, creative copy, images, Intellectual Property, product titles, descriptions or reviews, or any other information of eTukuri and/or obtained from third parties in combination with the Merchant Content. Merchant further agrees that eTukuri may append Website to the Merchant Content and Merchant Sites, and may collect, store, transfer and use data received from such Website. 

4.   REPRESENTATIONS AND WARRANTIES 

• Each Party represents and warrants that (i) it is duly organized, validly existing, and in good standing in the jurisdiction of its organization; (ii) this Agreement is a valid agreement enforceable against that Party according to its terms; (iii) the person entering into this Agreement on behalf of such Party has been properly authorized and empowered to do so; and (iv) it has the right and authority to enter into this Agreement and grant all rights granted herein.  

• Merchant represents, warrants and covenants that (i) Merchant owns or has sufficient rights to all Intellectual Property necessary to fulfill Merchant’s obligations and actions taken under this Agreement, including but not limited to the full power and authority to grant the licenses described herein, and that Merchant’s granting of the license(s), and subsequent exercise thereof by eTukuri or its Affiliates, does not and will not violate any third-party rights, including, without limitation, Intellectual Property rights and rights of privacy and publicity; (ii) to the extent possible under applicable law, Merchant has obtained the necessary waivers of any moral rights owned by any third party in any of the Intellectual Property; (iii) the Merchant Content (as a whole or in part) (a) is not and will not be libelous, obscene, false, inaccurate, deceptive, illegal, hateful, racist, pornographic, defamatory, sexually explicit or otherwise inappropriate or violate any eTukuri policies; (b) does not and will not infringe or violate the Intellectual Property, privacy, publicity, or other rights of any third party; and (c) complies with all applicable laws; and (iv) 

• Merchant’s performance hereunder, the products and/or services offered by Merchant, and the use of any data or information relating to any Merchant Site or user does not and will not violate Merchant’s privacy policy or any applicable regulation, rule, statute or law or any agreement to which Merchant is a party or by which Merchant is bound.
  
  
• Merchant further represents, warrants and covenants that (i) Merchant shall be solely responsible for the receipt, processing and fulfillment of orders for the products and services represented in the Merchant Content and all related actions, including but not limited to, shipping, invoicing, collecting payments, product returns or replacements, customer service, and payment of any taxes or other charges; and (ii) Merchant shall comply with any and all applicable legal requirements, qualifications, standards, licenses, permits or authorizations required for the operation of Merchant’s business; and (iii) Merchant shall be solely responsible for Merchant’s sales practices, product safety consumer guarantees and warranties, and the regulatory compliance of products and services represented in the Merchant Content or on the Merchant Sites.

5.   CONFIDENTIALITY

• For purposes of these Terms, “Confidential Information” means any data or information that is proprietary to eTukuri, its affiliates, subsidiaries or affiliated companies, and not generally known to the public, whether in tangible or intangible form, whenever and however disclosed, including, but not limited to:

• Any marketing strategies, plans, financial information, or projections, operations, sales estimates and business plans relating to the past, present or future business activities of such Party;
• any past or present performance results, including orders and volumes;
• any plans and strategies for expansion;
• any products or activities, and customer or supplier lists;
• any scientific or technical information, invention, design, process, procedure, formula, improvement, technology or method;
• any concepts, reports, data, know-how, works-in-progress, designs, development tools, specifications, computer software, source code, object code, flow charts, databases, inventions, information and trade secrets; and
• any other information that should reasonably be recognized as confidential information of the disclosing party. Confidential Information need not be novel, unique, patentable, copyrightable or constitute a trade secret in order to be designated Confidential Information.

• The Merchant shall not disclose Confidential Information, except with the prior written consent of eTukuri. The Merchant may only use the Confidential Information for the purpose of performing the Merchant Agreement, and not for any other purposes. Notwithstanding the foregoing, the Merchant may disclose Confidential Information with prior written notice to eTukuri for any of the following reasons:

• to comply with the mandatory provisions of applicable laws or the rules of any recognized jurisdiction;
• the information is properly disclosed to the professional advisers, auditors or bankers of the Merchant, provided that the recipient first agrees not to disclose the information;
• the information is in the public domain, other than through a breach of this article;
• for the purposes of any arbitration or legal proceedings arising from the Merchant Agreement; and to any governmental authority at their request.

6.   INDEMNIFICATION 

• eTukuri hereby agrees to indemnify, hold harmless and defend Merchant, its respective successors and permitted assigns, and the officers, directors, employees, and agents of each of them, against any and all third party claims or actions and all liabilities, losses, expenses, damages and costs (including, without limitation, reasonable legal fees) (collectively, “Claims”) arising from or in connection with (i) eTukuri's breach of this Agreement or (ii) eTukuri Marks. 

• Merchant hereby agrees to indemnify, hold harmless and defend eTukuri and its Affiliates and their respective successors and permitted assigns, and the officers, directors, employees, and agents of each of them, against any and all Claims arising from or in connection with (i) Merchant’s violation of law or third-party rights, (ii) Merchant’s breach of this Agreement, (iii) the Merchant Sites, or (iv) the Merchant Content. 

7.   DISCLAIMER OF WARRANTY; RELEASE 

Except to the extent required by applicable law or as expressly set forth in this agreement, etukuri and its affiliates disclaim any and all warranties, of any kind or nature, whether express, implied or statutory, including, without limitation, any and all implied warranties of merchantability, accuracy, results of use, reliability, fitness for a particular purpose, the amount of revenue that may be generated, any economic or other benefit that merchant might obtain through merchant’s participation in etukuri, title and non-infringement of third-party rights. The etukuri sites, etukuri commerce network and software are provided “as is” without warranty of any kind and merchant is solely responsible for any damages or loss of data that may result from the use of the etukuri sites.  Further, etukuri and its affiliates disclaim any warranty that merchant’s use of the etukuri sites will be uninterrupted or error free.  Etukuri and its affiliates do not guarantee the accuracy of content on etukuri sites, and will not assume any liability for: (1) users’ purchase decisions (and the subsequent use of purchased products and services) or (2) third party content, actions or inactions, or merchant’s interactions with any third parties in connection with the etukuri sites.   

In connection with merchant’s use of the etukuri sites, merchant releases etukuri and its affiliates (and each of their officers, directors, employees and agents) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. 

To the extent permitted by law, etukuri’s liability under any warranty that cannot legally be excluded is limited in accordance with section 7 of this agreement.   

8.   LIMITATION OF LIABILITY  

Some jurisdictions do not allow limitations on liability. Only limitations that are lawful in the applicable jurisdiction will apply to merchant, and etukuri and its affiliates’ liability will be limited to the maximum extent permitted by law.   

To the maximum extent permitted by law: (a) in no event shall etukuri or its affiliates be liable to merchant or any other person or entity for any consequential, special, indirect, exemplary, statutory, punitive, reliance or other liability, whether in contract, tort, or any other legal theory under this agreement or in any way relating to the etukuri sites, whether or not merchant has been advised of the possibility of such damages or liability and notwithstanding any failure of essential purpose of any limited remedy, and all statutory or implied conditions and warranties are excluded to the fullest extent permitted by law; and (b) etukuri and its affiliates’ aggregate liability is limited to amounts paid or payable to etukuri by merchant under this agreement in the month preceding the claim.  In the event that the limitation of liability in the immediately preceding sentence is not enforceable, etukuri and its affiliates’ aggregate liability is in any case limited to MVR 77,100.  The foregoing limitations shall apply to all claims and causes of action in the aggregate, including, without limitation, breach of contract, breach of warranty, negligence, strict liability, misrepresentation, and other torts or causes of action (to the extent permitted by law).   

9.   FEES AND PAYMENT TERMS 

• eTukuri will invoice to the Merchant a fee (hereinafter “Activity Fee” or “Commission”) for the Activities provided by eTukuri to the Merchant (such as the (i) listing and publication of Goods on the Platform, (ii) listing and publication of Content Material, (iii) Sales Traffic Activities, (iv) Order verification and processing activities, (v) coordination of returns, cancellations and failed deliveries, (vii) marketing and advertising services and (vi) customer and Merchant support services), in accordance with applicable laws. The Commission shall be calculated as a percentage of the Listing Price of the Good or Goods of a fulfilled customer agreement (i.e., where the Order status is “delivered” on Merchant Centre), and in local currency. Unless otherwise stated, the Commission payable to is inclusive of the withholding taxes payable by the Merchant in relation to the Merchant’s sale of Goods, under the applicable laws. eTukuri may, from time to time, update the Commission rates by publication and notification in writing.

• Unless otherwise stated, coupons and discount codes shall not be considered in the calculation of the Commission.

10.   DEFAULT FEES

• If the Merchant violates any obligation under the Merchant Agreement or the applicable laws, eTukuri shall have the right to charge to the Merchant the Default Fee applicable to that Order and any Default Fee, as may imposed by eTukuri, according to eTukuri’s policy. The Default Fees (Annex 1), and any amendment thereto from time to time, shall be published in writing by eTukuri on merchant’s portal.

• Unless otherwise agreed in writing, the payment in respect of Default Fees shall be effected by setting off against funds received by eTukuri from customers in respect of the transactions.

11.   PAYMENT TERMS

• eTukuri will collect all payments from the customer (including all cash on delivery payments) as payment processing agent for the Merchant and will have the exclusive right to do so, and will remit such funds to the Merchant (directly or through an appointed payment agent) in accordance with these Terms. eTukuri may, from time to time, appoint logistics service providers/carriers of Goods to also collect payments from the customer (including cash on delivery payments). eTukuri shall charge a fee for the order processing and payment processing activities and services carried out in respect of the Orders (“Activity Fee”), which will be calculated as a percentage of the Listing Price of the Good or Goods (not taking into account any coupon or discount code) of a fulfilled customer agreement (i.e., where the Order status is “delivered” on Merchant login), and in local currency. eTukuri may, from time to time, update the Payment Fees by publication and notification in writing on Merchant Portal.

• eTukuri will reconcile and pay to the Merchant all payments and claims, subject to any refunds, Default Fees and other adjustments in accordance with these Terms (collectively, the “Payments”). Payments shall be made in accordance with the accepted payment mechanisms available on the Merchant Portal (account number, account name, etc.), or as agreed in writing by the Parties. The merchant shall take the responsibility to verify the correct details are provided on the Merchant Portal or in writing. Unless otherwise stated, all Payments (to the merchant) shall be paid on a weekly/Monthly basis, in respect of orders delivered to the nearest post office, based on the Order status shown on Merchant Portal as of the cut-off date for reconciliation. The Merchant acknowledges that the Order status on Merchant Centre may be subject to delays caused by third parties or factors outside of eTukuri’s reasonable control, and may not be updated on public holidays and weekends. In the event of any overpayment or underpayment in respect of any Orders or transactions (including but not limited to miscalculated fees, resolved queries and delivery status corrections), the corresponding adjustment will be reflected in the next payment.

• If eTukuri concludes that the actions and/or performance of the Merchant, in connection with the Merchant Agreement, the customer agreement, and such third-party agreements relating to Merchant’s obligations may result in any dispute with customers, chargebacks or other third-party claims, or there are any sums owed by the Merchant to eTukuri, or any claims of third parties against eTukuri arising from the Merchant’s performance, whether under a purchase order or under any other document, then eTukuri may, in its sole discretion, withhold any Payments for the shorter of:
  
  
  • a period of ninety (90) days following the date of suspension; and
  • completion of any investigation(s) regarding the actions of the Merchant and/or performance in connection with the Merchant Agreement, customer agreement, these Terms and any other document.

• In case of breach of Agreement by the Merchant, eTukuri shall, without limitation, have the right to delay or suspend Payments. Any Payment made by eTukuri shall not in any way be considered as a waiver of its rights under these Terms or the provisions set out in the Order.

• eTukuri shall have the right to impose Order value and/or transaction limits (“OVL”), either a minimum limit or a maximum limit, on some or all customers or the Merchant relating to the value of any transaction, the cumulative value of all transactions during a period of time, or the number of transactions per day or other period of time. eTukuri will not be liable to the Merchant:

• • If eTukuri does not proceed with an Order or transaction that would exceed any limit established by eTukuri; or
  • If eTukuri permits a customer to withdraw from a transaction because the Platform or the Goods are unavailable following the commencement of a transaction.

• The Merchants hall be responsible for all relevant taxes, duties, fees and other charges arising out of or associated with the Payments, and the Merchant undertakes to eTukuri that it shall pay all such taxes, duties, fees and other charges on time. To the extent required by law, eTukuri shall be entitled to withhold any and all taxes in connection with the Payments. In the event that eTukuri is held liable for any taxes in connection with the Payments, the Merchant shall indemnify eTukuri for such tax liability irrespective of when such tax liability is assessed.

• Any inquiry or complaint about the payment of an Order shall be received by eTukuri within 7 working days after the payment receive date. eTukuri will not accept any queries regarding an order after this point and Merchant waives the right to dispute any charges not disputed within this timeframe.

• As a payment processing agent, eTukuri shall take no responsibility with respect to the legality of the payment transactions between the customer and the merchant relating to the Orders made through the Platform. The Merchant undertakes that all payment transactions are in compliance with the applicable laws (including anti-money laundering regulations).

• Merchant agrees that it is the Merchant's responsibility to determine whether Merchant Taxes apply to the transactions and to collect, report, and remit the correct Merchant Taxes to the appropriate tax authority, and that eTukuri is not obligated to determine whether Merchant Taxes apply and is not responsible to collect, report, or remit any sales, use, or similar taxes arising from any transaction. "Merchant 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 of products by the Merchant.

• eTukuri may, from time to time, on a goodwill basis, extend a rebate or discount to the Merchant in respect of any Commission payable to eTukuri, or any shipping or fulfilment fees payable by the Merchant to an affiliate of eTukuri. The terms of such rebate or discount (including the rates, scope and duration of the rebate or discount) shall be determined by eTukuri in its sole discretion, and shall be notified in writing to the Merchant. Where required by any applicable law, the Merchant agrees that eTukuri may generate an invoice (in the Merchant’s name) to give effect to the rebate and discount extended by eTukuri.

12.   TERM, SUSPENSION, TERMINATION, SURVIVAL 

• eTukuri has the right to unilaterally and immediately terminate the Merchant Agreement and these Terms upon the occurrence of any of the following events:

• • the Merchant being in breach of any obligation or warranty under the Merchant Agreement and failing to remedy the same within seven (7) days from receipt of a written notice from eTukuri of such breach;
  • in the event of the Merchant’s improper use of intellectual property rights or distribution rights, sale of fake or counterfeit products or products prohibited from use, or distribution or sale under applicable laws as set forth in Article 18.1 below.
  • the Merchant passing a resolution for its winding up or a court of competent jurisdiction making an order for the Merchant’s winding up or dissolution or if the merchant is bankrupted;
  • the making of an administration order in relation to the Merchant or the appointment of a receiver over, or an encumbrance taking possession of, or selling any of the Merchant’s assets;
  • the Merchant making an arrangement or composition with its creditors generally or applying to a Court of competent jurisdiction for protection from its creditors;
  • The Merchant ceasing or threatening to cease to carry on business; or notwithstanding the foregoing, eTukuri will have the right to unilaterally terminate the Merchant Agreement and these Terms without cause, at eTukuri’s sole discretion, within fourteen (14) days from the date on which eTukuri gives written notice of such termination.

• The Merchant has the right to unilaterally terminate the Merchant Agreement within fourteen (14) days after the occurrence of any of the following events:

• • the making of an administration order in relation to eTukuri or the appointment of a receiver over eTukuri’s assets;
  • eTukuri making an arrangement or composition with its creditors generally or applying to a Court of competent jurisdiction for protection from its creditors;
  • eTukuri ceasing or threatening to cease to carry on business;

• The Merchant has the right to terminate the Merchant Agreement without any notice after the occurrence of any of the following events:

• • Merchant's failure to perform its obligation amounts to a fundamental non-performance;
  • In the event of fraud or dishonesty;

• Before termination of the Merchant Agreement, the Merchant shall inform eTukuri of all Orders which have to be performed. For the avoidance of doubt, the Merchant shall remain responsible for the fulfilment of the pending Orders according to the specific fulfilment model agreed with eTukuri. If the Merchant fails to do so, eTukuri may cancel the Orders and may impose a Default Fee on the Merchant in accordance with Article 10.1, which will be deducted from any Payments to be paid by eTukuri to the Merchant.

• If the agreement ceases to exist, the Merchant shall pay any arrears arising while performing under this Merchant agreement along with fulfilling the pending orders or any documentation thereof.

13.   NOTICES  

• Notices to Merchant (including notice of changes to or termination of this Agreement by eTukuri) may be given to Merchant by hand, via email, via eTukuri Website or by certified mail to the address listed above. Unless otherwise provided herein, all notices to eTukuri will be made via email to merchants@etukuri.mv. 

14.   ASSIGNMENT, TRANSFER, NOVATION  

• Merchant may not assign, transfer or novate Merchant’s rights, duties or obligations set forth in this Agreement, nor any account Merchant may create with eTukuri, in whole or in part, whether by assignment, merger, transfer of assets, sale of stock, bankruptcy, operation of law or otherwise, without the prior written consent of eTukuri. Any attempt to make such an assignment, transfer or novation shall be void. eTukuri may freely assign, transfer or novate this Agreement without notice. 

15.   CHOICE OF LAW  

• This Agreement shall be deemed to have been made in and shall be construed pursuant to the laws of the Republic of Maldives without regard to conflicts of law principles, and any disputes related to this Agreement shall be resolved in the courts located in Male’, Maldives, to whose sole and exclusive jurisdiction and venue the Parties hereto irrevocably submit. 

16.   FORCE MAJEURE  

• eTukuri shall not be liable to Merchant or be deemed to be in breach of the Merchant Agreement by reason of any delay in performing or any failure to perform any of eTukuri’s obligations if the delay or failure was due to any event or cause beyond eTukuri’s reasonable control (each an event of “Force Majeure”). Without prejudice to the generality of the foregoing, the following shall be regarded as events of Force Majeure: 

• • Act of God, explosion, flood, tempest, fire, accident or any similar frustration to perform;
  • War or threat of war, sabotage, insurrection, civil disturbance or requisition, act of terrorism or civil unrest;
  • Acts, restrictions, regulations, bylaws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority:
  • Import or export regulations or embargoes;
  • Interruption of traffic, strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of eTukuri or of a third party);
  • Health epidemics declared by the World Health Organization;
  • Interruption of production or operation, difficulties in obtaining raw materials labour, fuel parts or machinery; and
  • Power failure or breakdown in machinery.
  • Upon the occurrence of any of the events set out in Article 16.1, eTukuri may, at its option, fully or partially suspend delivery/performance of its obligations hereunder while such event or circumstance continues. If any of the events set out in Article 16.1. Shall continue for a period exceeding one month, eTukuri may forthwith terminate the Merchant Agreement upon giving notice in writing to the Merchant.
  • The Merchant shall not be liable for the delayed or total or partial non-fulfilment of its obligations under the Merchant Agreement if such delay or non-fulfilment is due to an event of Force Majeure. In case the event of Force Majeure prevents the Merchant from performing its obligations for more than five (5) consecutive days, eTukuri shall be entitled to terminate the Merchant Agreement. 

17.   MISCELLANEOUS 

• Compliance with law: In its performance under the Merchant Agreement or any customer agreement, Merchant shall strictly comply with all applicable laws, treaties, ordinances, codes and regulations, and specifically with any personal data protection, import and export, and health, safety and environmental, laws, ordinances, codes and regulations of any jurisdiction (whether international, country, region, state, province, city, or local) where this Merchant Agreement may be performed. Upon eTukuri’s written request, Merchant shall provide any written certification of compliance required by any Laws, ordinance, code, or regulation. For avoidance of doubt, Merchant shall only use and/or disclose personal data received from eTukuri solely for the purpose of performing its obligations under this Merchant Agreement or any customer agreement and in accordance with the requirements under the applicable personal data protection laws and regulations and in a manner that ensures eTukuri remains in compliance with the requirement under the applicable personal data protection laws and regulations. 

• Merchant and eTukuri are independent contractors. Nothing contained in this Agreement will be construed as creating or implying a joint venture, agency, legal partnership or employment relationship between Merchant and eTukuri, their respective employees and contractors, and neither Merchant nor eTukuri will have the right, power or authority to bind the other or incur any obligation on the other’s behalf without the other’s prior written consent.

• The actual or future invalidity or ineffectiveness of one or more provisions in these Terms shall not affect the validity or effectiveness of the whole document. 

• The failure of a Party to exercise its rights in case of breach of contract by the other Party shall not be considered as a waiver of its rights under these Terms or under the applicable laws. 

• The singular of terms used in these Terms includes the plural and vice versa, unless the context otherwise requires.

 Any reference to national, provincial, local or foreign rules or provisions are meant to also include all provisions and regulations issued pursuant to such provisions, unless the context otherwise requires. 

• This Agreement and any documents or terms expressly incorporated by reference constitute the entire agreement between the Parties in connection with the subject matter herein and supersede all previous and contemporaneous agreements, proposals and communications, written or oral, between Merchant and eTukuri with respect to the subject matter herein.

• Any party to this contract reserves the right to request changes to this Agreement by notifying the other party from time to time. Any use of the software or eTukuri network by Merchant after the changes are posted via the software (or otherwise made available to Merchant) constitutes Merchant’s implied acceptance of any such changes. If Merchant does not agree to any such change in the Agreement, please discontinue using the software and eTukuri network. The terms and conditions of Articles 16.1.10, 17.4, and 18 shall survive the termination for any reason whatsoever of the Merchant Agreement.

• The Specific Default Fees (Annex 1), and any amendment thereto from time to time, shall be published in writing by eTukuri on Merchant Portal. Such Specific Default Fees shall be charged in accordance with Article 10 of the Terms.

18.   Annex 1

a.   Default Fees

b.   Activity fee (Merchant charges)