These Terms govern the services provided to you ("Seller") by Malum Limited, incorporated in Seychelles. By using the Services you agree to be bound by these Terms.
Table of Contents
These Terms of Use govern the services provided to you ("Seller") by Malum Limited, a company incorporated in Seychelles. By signing up for our services you agree to be bound by these Terms of Use and all terms, policies and guidelines incorporated by reference, including the Privacy Policy.
We may make changes to these Terms of Use from time to time. When we do, we will revise the "Last Updated" date. Modifications are effective upon publication. Your continued use of our Services after such changes have been published constitutes your acceptance of the revised Terms of Use.
"Acceptable Use" — activities which comply with Malum's acceptable use policy at malum.co/legal/acceptable-use-policy.
"Account Balance" — amounts showing in the Seller Account at any given time.
"Balance Currency" — the currency you select for your Seller Account, typically USD.
"Buyers" — Invoiced Buyers and Checkout Buyers.
"Checkout Buyer" — an end customer who purchases the Product using the Malum Checkout.
"Confidential Information" — information, whether written or oral, relating to development, products, trade secrets, business plans, suppliers, customers, finances, personnel data, and other proprietary material.
"Intellectual Property Rights" — patents, copyrights, trade marks, design rights, database rights, trade secrets, and all other intellectual property rights whether registered or unregistered, in any part of the world.
"Malum Checkout" — the online checkout used by Checkout Buyers to purchase the Product, including credit card, Apple Pay, alternative payment methods and bank transfer.
"Malum Discount" — the margin payable to Malum for the Services.
"Product" — the Seller's software product(s) and/or digital content agreed to be resold and distributed, including any updates and upgrades.
"Seller Account" — the account you set up on the Malum platform.
"Seller Dashboard" — the dashboard at malum.co/merchant/dashboard where you access your Seller Account, amend settings, and view reports.
"Services" — the services provided by Malum under Clause 3.
"Suggested Retail Price" / "SRP" — the recommended price for the Product.
"Trademarks" — your trademarks, service marks, trade names and logotypes, whether registered or otherwise.
Unless the context requires otherwise: (i) headings are for convenience only; (ii) references to a 'party' include personal representatives, successors and permitted assigns; (iii) words in the singular include the plural and vice versa; (iv) 'writing' includes email; (v) references to legislation include amendments and subordinate legislation made under it.
You appoint Malum as your non-exclusive reseller of the Product across all territories and will ensure that Malum's status as Merchant of Record is reflected on your website in a form agreed with Malum.
In terms of the appointment Malum will provide the following Services:
Setting you up as a supplier of the Product on Malum's platform and establishing a Seller Account.
Acting as your non-exclusive reseller of the Product via Malum Checkout across all territories supported by Malum from time to time. For the avoidance of doubt, nothing in these Terms creates an obligation for Malum to sell across all territories.
Product fulfilment, order support and handling all aspects of compliance as Merchant of Record.
The Malum Discount is applied as follows: Malum Checkout: 5% AND $0.50 USD of your SRP for each confirmed sale applied to the amount charged to the Checkout Buyer, excluding reversals, refunds and other chargebacks.
As Merchant of Record, Malum reserves the right to set the price or licence fee at which the Product is offered for sale to Buyers.
You hereby grant to Malum a non-exclusive and non-transferable right and licence to: (i) market, promote, advertise, sell and facilitate access to the Product directly to Buyers; (ii) access the Product to provide demonstrations to prospective Buyers, so long as such access is at all times under Malum's control.
Malum agrees not to: (i) modify the Product or create derivative works; (ii) merge the Product with other software or services; (iii) reverse engineer, decompile or disassemble the Product; (iv) disclose bench test results without your prior written consent; (v) use, copy or distribute the Product except as expressly allowed.
You grant Malum a non-exclusive, non-transferable right to use your Trademarks to provide the Services, and undertake to indemnify Malum against any claim that our proper use of the Trademarks infringes any third party rights.
Other than as expressly provided, you and your licensees retain all right, title and interest in and to the Product, related documentation and Trademarks. Malum acquires no rights except as expressly set out in these Terms.
Malum agrees to provide first-tier after-sales support to Buyers, including invoicing, handling refund requests, payment, reconciliation and initial order-related support.
Malum has no responsibility to provide ongoing customer service, complaints handling, technical or continuing support for the Product. This responsibility lies entirely with you, and you undertake to indemnify Malum in full against any such claims or liability.
You are entirely responsible for correctly entering all information into the Seller Dashboard required to calculate the amount to be invoiced to any Buyer.
Upon a completed sale of the Product, Malum shall credit your Seller Account an amount equal to the SRP less: (a) any Sales Tax due; (b) the Malum Discount; (c) charges for Additional Services; and (d) any other charges payable by you under these Terms.
(i) For any returns (refunds or chargebacks) of Products sold via Malum Checkout, you will be debited your portion of the sale. If Malum incurs a fee for a chargeback, Malum may at its discretion pass this fee to the Seller, up to $25 per chargeback.
(ii) Where the Product has an unusually high chargeback rate (typically greater than 1%), Malum reserves the right to discontinue selling some or all of the Product on a temporary or permanent basis and/or terminate the agreement.
(iii) Any payments or charges under this clause will be debited from your Seller Account. If at any point your Seller Account goes into debit, Malum may suspend all Services until the deficit is paid.
Malum reserves the right to retain and if appropriate apply and/or set off funds in your Seller Account if: (i) we reasonably consider it may be required to cover future refunds, chargebacks or liabilities; (ii) we believe the funds do not adhere to our Acceptable Use policy; (iii) we consider the Services are being used in a fraudulent or illegal manner.
We shall communicate amounts retained and, where appropriate and legally able to do so, the reason for retention.
We will keep any retained amounts only for a reasonable time as determined at our sole discretion, and will promptly pay over any remaining amounts after available set-off. Malum is not obliged to pay revenues associated with activities or Products it considers to be fraudulent or illegal.
All amounts due under these Terms shall be paid in full without any set-off, counterclaim, deduction or withholding (other than tax deductions required by law).
Malum requires all Sellers to complete an account verification check as part of our Know Your Customer (KYC) obligations. We have partnered with Veriff, a leading document ID verification solution, who handles this on Malum's behalf. Our Verification team will contact you by email to advise when you are required to complete a KYC check.
Where you have no sales for a period of six (6) consecutive months ("Dormancy Period") and there is a positive Account Balance, Malum reserves the right to write off the Account Balance and bring it to zero and deactivate your Seller Account. Before doing so, Malum will attempt to contact you in order to pay you the Account Balance.
Malum is the reseller and Merchant of Record of the Product. This structure allows Malum to handle all Sales Tax collection, reporting and remittance. If required by law, Malum will withhold any and all required taxes, fees and other amounts from sales proceeds of the Product.
You represent and warrant to Malum that: (i) you are the owner of each Product or legally authorised to act on behalf of the owner; (ii) the Product is free from defect and fit for purpose; (iii) you have all necessary authority to enter into these Terms; (iv) your use of the Services does not conflict with or violate any agreement with a third party; (v) you have complied and will continue to comply with all applicable laws, including data protection laws; (vi) you will at all times comply with all applicable Malum policies.
You agree to indemnify, defend and hold harmless Malum, its employees, officers and directors from and against any claims, liabilities, penalties, settlements, judgments and fees arising from: (i) any information submitted or accessed through your account; (ii) your breach of any representation, warranty or obligation under these Terms; (iii) any violation of applicable laws in connection with your use of the Services; (iv) any disputes in respect of the Product.
Malum disclaims any and all warranties, express, implied or statutory regarding the Services to the full extent permitted by law. The Services are provided "as-is" and without warranties of any kind, including any warranties of performance, merchantability, fitness for a particular purpose, title or non-infringement.
If any provision of these Terms is held to be invalid or unenforceable, the court should endeavour to give effect to the parties' intentions as reflected in the provision, and the remaining provisions remain in full force. Malum's acquiescence in the breach of any provision does not waive its right to act with respect to subsequent or similar breaches.
All Confidential Information provided by one party to the other is deemed confidential. The receiving party shall not use, disclose or take advantage of such information.
Each party shall exercise the same degree of care to avoid publication or dissemination of the other's confidential information as it affords its own confidential information of a similar nature, which in any event shall not be less than reasonable care.
Confidential Information shall only be used by the receiving party within the purpose of these Terms or the performance of its obligations. The receiving party will not use such information for its own benefit or for the benefit of any third party.
The obligation not to disclose confidential information shall survive termination. No party shall be obligated to protect confidential information that: (i) is rightfully received from another party without confidential obligation; (ii) is known or developed independently without use of the confidential information; (iii) becomes generally known to the public by other than a breach of duty; (iv) is required to be disclosed by a government agency or law, provided prompt notice is given to the disclosing party.
Malum will maintain appropriate administrative, physical and technical safeguards for the protection of the security, confidentiality and integrity of Buyer and Seller data, as described in our Privacy Policy.
Either party may terminate these Terms at any time by giving at least thirty (30) days' written notice, or by immediate notice if: (i) the other commits a material, irremediable breach; (ii) a material breach is not remedied within 14 days of written notice; (iii) any consent or licence held by the other is revoked such that it can no longer comply with its obligations; (iv) there is suspected fraudulent or criminal activity or non-compliance with local laws; (v) the other stops carrying on all or a significant part of its business, or becomes insolvent or enters administration.
Termination or expiry shall not affect any accrued rights and liabilities of either party up to the date of termination.
Termination or expiration shall not release either party from the obligation to make payment of all amounts then or thereafter due and payable.
Upon termination, Malum will within thirty (30) days return to you or destroy: (i) all access details to the Product; (ii) all manuals, documentation and product literature provided by you; (iii) all Confidential Information and other property of yours, provided that such materials are in its possession or control.
These Terms constitute the entire agreement between the parties and supersede all previous agreements, understandings and arrangements in respect of its subject matter.
Each party acknowledges it has not entered into these Terms in reliance on any representation or warranty not expressly set out herein.
You may not assign, subcontract or encumber any right or obligation under these Terms without Malum's prior written consent. Any assignment in violation of this clause is void.
A party shall not be in breach of these Terms for any delay or failure to perform caused by an event or circumstance beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of time.
No delay, act or omission by either party in exercising any right shall be deemed a waiver. The rights and remedies under these Terms are in addition to, and not exclusive of, any rights provided by law.
If any provision of these Terms is invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid and enforceable. If modification is not possible, the relevant provision shall be deemed deleted without affecting the remainder of these Terms.
Each party shall comply with all applicable laws and regulations and maintain all necessary authorisations. The parties are independent businesses and not partners, principal and agent, or employer and employee.
Any notice given under these Terms shall be in writing or by email to [email protected]. Notices sent by first class post are deemed received on the second Business Day after postage, or on delivery if given by hand.
These Terms shall be governed by and construed in accordance with the law of Seychelles, and the parties irrevocably agree that the Seychelles courts shall have exclusive jurisdiction over any claim or matter arising under or in connection with these Terms.
Last modified 04/20/2024