Services and Relationship of Parties
Business User agrees to be bound by these Terms. If Business User is using the Services on behalf of an organization or entity ("Organization"), then you are agreeing to these terms on behalf of that Organization and you represent and warrant that you have the authority to bind the Organization to these terms. In that case, "you"and "your"refers to you and that Organization as the Business User. Business User may hereby use Platform to sell its products and share its business information through lemiapp.com, the Platform's business dashboard ("Lemi Dashboard"). Here, Business User will provide a roster on the Platform of Business User's available Product(s) (as defined herein). Any sale shall be subject to the terms and conditions of this Agreement as well as the integrated agreements described above or any subsequent Account Plan(s). Such a sale of any Product(s) will be processed by Lemi but directly shipped from Business User to the purchasing Customer ("Customer"). Parties hereby acknowledge that they are independent of one another and not in any type of employee / employer relationship. Nothing contained herein shall be construed to imply an employment, partnership, joint venture, or principal and agent relationship between the Parties. Business User shall have no right, power or authority to create any obligation, express or implied, on behalf of Lemi without Lemi's prior written consent. Business User shall not be entitled to participate in any plans, benefits or distributions offered by Lemi to its employees. Lemi will make no deductions from any compensation paid to Business User for, and Business User shall have full and exclusive liability for, and indemnify Lemi against, the payment of any taxes and/or contributions for unemployment insurance, workers' compensation or any other employment related costs or obligations, related to the provision of the use of Platform.
Lemi shall not hold any inventory of Business User Products. Lemi shall not be involved or responsible for any shipment of any Product(s) Business User sells, whether on the Platform or otherwise. Although Customers pay for Products (as defined herein) through the Platform, Lemi is not responsible for any shipment of that product in any sense, including but not limited to, delayed shipment, lost Products, delayed shipment of Products, incomplete Product orders, damaged Products, or incorrect Product orders – This is the sole responsibility of the Business User.
Term and Termination
The rights of the Business User and its business location as designated by the Business User ("Business Location") to use any of the Business Services are effective from the date as stipulated in an Account Plan and will be terminated on the expiry of the service period as stipulated in an Account Plan. In case of any free trial of any module of the System offered to the Business User without executing any Account Plan, the term shall be determined at the sole discretion of Lemi. Without prejudice to any other rights which Lemi shall/ may have under the Agreement or at law or in equity, Lemi may terminate this Agreement immediately with or without notice in writing to the Business User if the Business User is in breach of any term of the Agreement. Lemi shall also have the authority to terminate this Agreement immediately for any other reason at any time at the sole discretion of Lemi if Lemi reasonably believes Business User is not complying with the terms of any agreement or this Agreement with Lemi. Any termination shall not affect any accrued rights or liabilities of Lemi or the Business User nor shall it affect the coming into force or the continuance in force of any provision which is expressly or by implication intended to come into or continue in force on or after such termination.
Representations and Warranties
This section will be governed by the Representations and Warranties of the Business User section of the Terms and Conditions of Business Services.
Business User acknowledges that Platform provides a platform for third-party users ("User") and Business Users with the opportunity to learn about local businesses, share information, recommend businesses, and buy as the Customer or sell as the Business User, Business User Products on Platform. Any sale of Business User's merchandise, products or services through the Platform are subject to this Agreement (collectively "Products"). All Product orders are strictly a contract between the User and you the Business User, and not with Lemi. Lemi does not provide or guarantee any of the Products advertised or presented by you through our Services. Lemi shall not, in any way, be liable for the quality and delivery of the ordered Products purchased from a Business User. Any disputes arising from the sale of Products are between the Customer and the Business User.
Fulfillment and Refunds
As a Business User, you agree to fulfill orders and accept and process returns, refunds and adjustments in accordance with these Terms at the time of the applicable order. It is your responsibility to fulfill a Customer's order placed for fulfillment within a reasonable time of the placement of the order. Lemi shall notify the Business User electronically of all orders placed within twenty four (24) hours. Customers will pay Lemi through a Payment System Provider as outlined in the Terms and Conditions of Business Services for all orders. Business User will have until the 20th day of each calendar month to (1) review the Business User's Products purchased through the Platform from the date of the last payment Business User elected for payment, (2) confirm the amount for products sold, and (3) elect to be paid out for such products sold ("Process Date"). If Business User fails to elect for payment by or before the Process Date of any given month, payment will be delayed until the Business User elects for payment by the Process Date of any subsequent month. Upon election, payment will be processed minus transfer fees, bank fees, and Lemi's Royalties as defined herein, then sent directly to Business User through either direct deposit, Business User's preferred payment system, or method by which documentation will be provided for each ("Fee(s)").
Product Return Policy
Business User shall determine its own return policy for Products sold through the Services, and Lemi shall not be responsible for ensuring the return of any Products or enforcing any return policy of the Business User. However, Lemi may decide to provide User's a refund or any other type of exchange on behalf of Business User on a case-by-case basis in light of User's complaint of Business User or otherwise, in which case Business User agrees that Lemi's decision to intervene shall override any Business User's return or refund policy. Any refund processed by Lemi will be deducted from Business User's Fees.
Payment of Fees
In addition to any dollar amount due in this Agreement or under any incorporated agreement herein, Business User shall pay to Lemi a royalty amount as provided for in an applicable Account Plan of the gross amount for sales of Products and all other receivables of any kind received in payment for Products ("Net Sales") sold under this Agreement (collectively "Royalties"). Royalties will accrue when Products of Business User are purchased on Platform by User's.. No royalties are payable for the mere manufacture of Products.
Lemi will charge a one-time fee of one thousand, two hundred U.S. Dollar ($1,200.00 USD) for onboarding Business User ("Onboarding Fee") onto the Platform. Lemi has agreed to waive this Onboarding Fee for Business User so long as Business User does not terminate this Agreement, with the exception of a force majeure event or the Business User's business permanent closing, within the first twelve (12) months of this Agreement. If such cancellation occurs by the Business User as described in this paragraph, Lemi will charge Business User the Onboarding Fee upon such cancellation.
Royalties and other sums payable under this Agreement are exclusive of taxes and must be paid free and clear of all deductions and withholdings whatsoever, unless the deduction or withholding is required by law.
Manner of Payment
Royalties will be automatically deducted from Fees payable to Lemi under this Agreement before Fees are paid to Business User.
As payments of Royalties are made, Business User shall be able to view and access a statement that includes all information relevant to the calculation of such Royalties on Business User's Lemi Dashboard.
Business User hereby agrees that if Business User fails to deliver an order by the shipment date given to Customer, Business User must (1) send an apology notice to the Customer on behalf of Business User and Lemi and (2) offer Customer the option to provide (i) a credit on Lemi equal to the value of the Product originally purchased or (ii) an apology gift ("Gift Product") from the Business User that is of equal to or greater value than the Product(s) originally purchased. If there is no response by the Customer within fifteen (15) business days, option (2)(i) shall be fulfilled by providing the Customer with a credit on Lemi. It is the sole responsibility of Business User to provide adequate communication to Customer of such options, giving them appropriate means of communication and contact information to reach Business User during business hours and respond accordingly to this penalty process due to Business User's inability to fulfill its Product orders. Upon multiple penalty occurrences, it is within Lemi's sole discretion to terminate this Agreement and remove Business User from Platform in accordance with this Agreement.
- License to Lemi. Subject to the terms and conditions of this Agreement, Business User hereby grants to Lemi a world-wide, non-exclusive, non-transferable, royalty-free right and license to use the Business User's intellectual property, including copyright, Trademark or otherwise (collectively "Business User's IP") during the Term and for any time thereafter for the sole purpose of providing Lemi's Services subject to this Agreement, in connection with Lemi's general business operations including but not limited to the promotions, advertising, marketing, feature Product advertising, updated marketing information, distribution of any of the materials described here, and sale of the Products.
- Reservation of Rights. Business User reserves all rights not expressly granted under this Agreement.
- Ownership and Registration. Neither this Agreement, nor any act, omission, or statement by the Parties, conveys any ownership right in any of the Business User's IP.
Choice of Law
The Business User and the Business Location shall fully comply with the Trade Descriptions Ordinance (Cap. 362 of the laws of Hong Kong) and all other applicable laws to ensure that the information/content uploaded to the Systems is true, legal, valid, up-to-date, accurate, not misleading and not infringing any third party's intellectual property rights. This Agreement and all matters arising out of this Agreement are governed by the laws of Hong Kong, without giving effect to any conflict of laws provisions thereof that would result in the application of the laws of a different jurisdiction.
The Termination of the Business Services and survival of terms; Limitation of Liability; and Indemnity shall all be governed by the Terms and Conditions of Business Services.
The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
No Third-Party Beneficiaries
This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns, and nothing herein, express or implied, is intended to or will confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of this Agreement. Business User shall not assign any of its rights or delegate any of its obligation's contrary to this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without the prior written consent of Lemi.
Waiver of Jury Trial
Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any claim, suit, action, or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
In the event that any claim, suit, action, or proceeding is instituted or commenced by either party hereto against the other party arising out of or related to this Agreement, Lemi will be entitled to recover its reasonable attorneys' fees and court costs from the Business User.
This Agreement and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter.
If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect the enforceability of any other term or provision of this Agreement, or invalidate or render unenforceable such term or provision in any other jurisdiction.
Amendment and Modification
Lemi reserves the right, at its sole discretion, to change, modify, add or remove portions of this Transactions Agreement, at any time. The amended Transactions Agreement is effective from the date published on the Platform. It is Business User's responsibility to check the Transactions periodically for changes. Business User's continued use of the Platform following the posting of changes shall constitute acceptance and agreement to such changes.
- Neither Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, except for any payment obligations herein, when and to the extent such failure or delay is caused by or results from acts beyond the reasonable control of the impacted Party ("Impacted Party"), including, without limitation, the following force majeure events ("Force Majeure Event(s)"): (a) acts of God; (b) flood, fire, earthquake, explosion, pandemics, or endemics; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; and] (f) national or regional emergency; and (g) strikes, labor stoppages or slowdowns; and (h) other events beyond the control of the Impacted Party.
- The Impacted Party shall give notice to the other Party, within five (5) days of the Force Majeure Event, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event(s) are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party's failure or delay remains uncured for a period of thirty (30) days following written notice given by it under this Agreement, either Party may thereafter terminate this Agreement upon fifteen (15) days notice.
No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
Any notices or demands shall be in writing and addressed to the respective parties as follows:
- If to Lemi: Except as otherwise provided herein, notice shall be made by registered or certified mail to Lemi at 1501 Glenealy Tower, 1 Glenealy, Central, Hong Kong.
- If to the Business User: Lemi may give notice by means of a general notice on the Services, electronic mail to your email address in your Lemi App account, telephone or text message to any phone number provided in connection with your Lemi App account, or by written communication sent by first class, registered, or certified mail, to any address connected with your Lemi App account.
Effective Date: 28 January 2022