Malum

These Terms of Use govern the services provided to you ("Seller") by either Malum Limited, a company incorporated on the Seychelles. Where you are trading globally all services will be provided by, and the party you are contracting with will be, Malum Limited, with Malum being a reference to the appropriate entity.

By signing up for our services, or by downloading, installing or otherwise accessing or using the Services (as defined below), you agree that you have read, understand, and accept the terms and conditions described below (the “Terms of Use”) and you agree to be bound by these Terms of Use and all terms, policies and guidelines incorporated in the Terms of Use by reference (including Privacy Policy which can be found at https://malum.co/legal/privacy-policy (or such other URL that Malum may provide from time to time)).

If you do not agree to these Terms of Use, you do not have our permission to, and may not use the Services (as defined below) in any way. The Services are offered to you conditional on your acceptance of these Terms of Use.

We may make changes to these Terms of Use from time to time. When we do, we will revise the “Last Updated” date given above. Modifications are effective upon publication. It is your responsibility to review these Terms of Use frequently and to remain informed of any changes to them. The then-current version of these Terms of Use will supersede all earlier versions. You agree that your continued use of our Services after such changes have been published will constitute your acceptance of such revised Terms of Use. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.

1. Definitions and Interpretation

1.1

In these Terms of Use, the following terms have the meanings this Section 1.1 ascribes those terms:

“Acceptable Use” means activities which comply with Malum's acceptable use policy set out in https://malum.co/legal/acceptable-use-policy (or such other URL that Malum may provide from time to time);

“Account Balance” means amounts showing in the Seller Account at any given time;

“Additional Services” means the services referred to in clause 5;

“Balance Currency” means the currency which you select for you Seller Account, typically in USD;

“Buyers” means Invoiced Buyers and Checkout Buyers;

“Checkout Buyer” means an end customer who purchases the Product using the Malum Checkout;

"Confidential Information" means information, whether written or oral, in any form, including without limitation, information relating to the development, products, trade secrets, business plans, suppliers, customers, finances, personnel data, and other material or information considered proprietary by the disclosing party;

Intellectual Property Rights: patents, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;

"Malum Checkout” means the online checkout that Checkout Buyers use to purchase the Product, and includes payment methods such as credit card, Apple Pay, alternative payment methods and bank transfer;

"Malum Discount" means the margin payable to Malum for Services;

"Product" means the Seller's software product(s) and/or digital content agreed to be resold and distributed, and any subsequent updates and upgrades thereto and includes any associated integration or implementation costs and / or service fees;

"Seller Agreement" means the Seller’s terms and conditions of sale in force from time to time in respect of the relevant Product;

"Services" means the services provided by Malum in terms of Clause 3;

“Suggested Retail Price” or “SRP” means the recommended price for the Product;

“Trademarks” means your trademarks, service marks, trade names and logotypes whether registered or otherwise;

"Seller Account” means the account you will set up on the Malum platform;

"Seller Dashboard” means the dashboard found at https://malum.co/merchant/dashboard (or such other URL that Malum may provide from time to time) where you are able to access your Seller Account, amend account settings, initiate billing process for Business Buyers and access all reports.

1.2

In these Terms of Use, unless the context requires otherwise:

(i) any clause, schedule or other headings in these Terms of Use is included for convenience only and shall have no effect on the interpretation of these Terms of Use;

(ii) a reference to a ‘party’ includes that party’s personal representatives, successors and permitted assigns;

(iii) a reference to a ‘person’ includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns;

(iv) a reference to a ’company’ includes any company, corporation or other body corporate, wherever and however incorporated or established;

(v) a reference to a gender includes each other gender;

(vi) words in the singular include the plural and vice versa;

(vii) any words that follow 'include', 'includes', 'including', ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;

(viii) a reference to ‘writing’ or ‘written’ includes any method of reproducing words in a legible and non-transitory form (including email);

(ix) a reference to legislation is a reference to that legislation as amended, extended, re-enacted or consolidated from time to time;

(x) a reference to legislation is a reference to such legislation as amended or re-enacted includes all subordinate legislation made from time to time under that legislation as amended or re-enacted.

2. Appointment

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.

3. Services

In terms of the appointment Malum will provide the following Services:

3.1

setting you up as a supplier of the Product on Malum's platform and establishing a Seller Account;

3.2

acting as your non-exclusive reseller of the Product via Malum Checkout across all territories supported by Malum from time to time during the term of these Terms of Use (for the avoidance of doubt nothing in these Terms of Use creates an obligation for Malum to sell across all territories);

3.3

product fulfilment, order support and handling all aspects of compliance as Merchant of Record.

4. Malum Discount

4.1

The Malum Discount will be applied as follows:

(i) Malum Checkout: 5% AND 0.5 USD of your SRP for each confirmed sale applied to the amount charged to Checkout Buyer, excluding reversals, refunds and other chargebacks;

4.2

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.

6. Title and Licence Grant

6.1

You hereby grant to Malum a non-exclusive and non-transferable right and licence during the term of these Terms of Use:

(i) to market, promote, advertise, sell and facilitate access to the Product directly to Buyers;

(ii) to access the Product to provide demonstrations to prospective Buyers, so long as such means of access is at all times under Malum's control and not left with the prospective Buyer.

6.2

Malum agrees not to:

(i) modify the Product or create derivative works thereof;

(ii) merge the products with other software or services;

(iii) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code (if applicable) for the Product;

(iv) disclose to third parties the results of any bench tests performed on the Product without your prior written consent (if applicable);

(v) otherwise use, copy or distribute the Product except as expressly allowed hereunder.

6.3

You hereby grant to Malum a non-transferable (except in connection with an assignment of these Terms of Use), non-exclusive right to use the Trademarks in order to provide the Services and undertake to indemnify Malum from and against any claim that our proper use of the Trademarks under such licence infringes any third party rights. Malum shall not attach any additional trademarks, service marks, or trade names to any Product and shall not use the Trademarks as part of its own trademarks, service marks or trade names or in any other manner that would tend to imply that Malum has an affiliation with you other than as set forth in these Terms of Use.

6.4

Other than expressly provided for in clauses 6.2 and 6.3 above, you and your licensees retain ownership of all right, title and interest in and to the Product, any related documentation and Trademarks, and all patents, copyrights and other proprietary rights therein, and Malum shall acquire no rights therein except as expressly set forth in these Terms of Use. You will own all rights, title and interest in all developments of and enhancements to the Product. Malum will take no action which may adversely affect or impair your ownership of such materials and rights.

7. After Sales Support

7.1

Malum agrees to provide first tier after-sales support to Buyers, this includes invoicing, handling requests for refunds, payment, reconciliation and initial order related support.

7.2

Malum will have no responsibility to provide ongoing customer service, complaints handling technical or other continuing support for the Product and/or delivery level (e.g. Service Level Agreements) with the Buyers, the responsibility for which lies entirely with you and you undertake to indemnify Malum in full from and against any such claims or liability.

7.3

You are entirely responsible for correctly entering all information into the Seller Dashboard required to calculate the amount to be invoiced to any Buyer, such as the number of relevant users and / or service level credits.

8. Payment Terms

8.1

Malum Checkout – payment terms

(i) 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 pursuant to these Terms of Use.

8.2

Malum Checkout – refunds and chargebacks

(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 charge pass this fee to the Seller up to $25 per chargeback.

(ii) Where the Product has an unusually high chargeback rate determined at Malum's sole discretion (typically, greater than one percent), we reserve the right to discontinue selling some or all of the Product on a temporary or permanent basis and/or terminate our agreement with you.

(iii) The foregoing is in addition to any other rights or remedies that may be available to Malum under these Terms of Use, or at law or equity. Any payments or charges under this clause will be debited from your Seller Account and if at any point your Seller Account goes into debit Malum may suspend all Services until the deficit is paid by you.

9. Retention of Funds

9.1

Malum reserves the right to retain and if appropriate apply and/or set off some or all of the funds that are in your Seller Account against monies owing to Malum if:

(i) we reasonably consider that it may be required to cover future refunds, chargebacks, charges against the Seller Account or other liabilities you may owe to us;

(ii) we believe that the funds do not adhere to our Acceptable Use policy;

(iii) we consider, acting reasonably, that the Services are being used in a fraudulent or illegal manner or that the sale of the Product is fraudulent or illegal under any relevant law or regulation.

9.2

We shall communicate to you amounts retained and where appropriate and where we are legally able to do so, the reason for retention of funds.

9.3

We will keep any retained amounts only for a reasonable time as determined at our sole discretion, and will promptly pay over to you any remaining retained amounts after any available set off. For the avoidance of doubt, Malum is not obliged to pay any revenues associated with activities or Products which it considers in its reasonable discretion to be fraudulent or illegal under any relevant law or regulation.

9.4

Notwithstanding any funds retained by us for such circumstances, all amounts due under these Terms of Use shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law) and you agree to pay us, upon demand, any monies owed to us due to refunds, chargebacks, commissions or fees for services rendered.

10. Account Verification

< Malum requires all Sellers to complete an account verification check as part of our Know Your Customer (KYC) obligations. We have partnered with Stripe Identity, a leading document ID verification solution who handles this on Malum's behalf. Our Verification team will contact you by email to advise that you are required to complete a KYC check. You’ll receive an email from Stripe Identity which will perform the relevant KYC checks. This KYC check is not required to use the Malum Platform. KYC Vertification is only required if you wish to receive payouts via bank or card transfer. Payouts via Crypto do not require KYC verification.

11. Dormant Accounts

Where you have no sales for a period of six (6) consecutive months (the “Dormancy Period” ) and there is a positive Account Balance, Malum reserves the right to write off the Account Balance and bring it back to zero (0) and deactivate your Seller Account. Before doing so, Malum will attempt to contact you in order to pay you the Account Balance.

12. Sales Tax and Tax Withholding

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 to by law Malum will withhold any and all required taxes, fees and other such amounts from sales proceeds of the Product.

13. Representations and Warranties

13.1

You represent and warrant to Malum that:

(i) you are the owner of each Product in connection with the use of the Services or that you are legally authorised to act on behalf of the owner of such Product for the purposes of these Terms of Use;

(ii) the Product is free from defect and fit for purpose;

(iii) you have all necessary right, power and authority to enter into these Terms of Use and to perform the acts required of you hereunder and to permit Malum to perform the Services contemplated under these Terms of Use;

(iv) your use of the Services, the delivery and performance by you of the terms and conditions under these Terms of Use does not and will not conflict with or violate any agreement or other instrument with a third party applicable to you or otherwise infringe upon the rights of any third party;

(v) you have complied and will continue to comply with all applicable laws, statutes, ordinances, and regulations (including, without limitation, any relevant data protection or privacy laws);

(vi) you will at all times comply with all applicable Malum policies.

13.2

You agree to indemnify, defend and hold harmless Malum, its employees, officers and directors, or users from and against any and all claims, liabilities, penalties, settlements, judgments, fees (including reasonable legal fees) arising from:

(i) any information that you or anyone using your account may submit or access in the course of using the Services;

(ii) your breach of any representation or warranty in, or violation of the terms of these Terms of Use or any agreement or other instrument with a third party applicable to you;

(iii) any violation or failure by you to comply with all laws and regulations in connection with your use of the Services, whether or not described herein;

(iv) any disputes in respect of the Product.

14. Disclaimer of Warranties and Limitation of Liability

14.1

Malum disclaims any and all warranties, express, implied or statutory regarding the services to the full extent permitted by law. Without limiting the generality of the foregoing, the services are provided "as-is" and without warranties of any kind, including, without limitation, any warranties of performance or implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. Further, Malum does not make, and has not made, any representation or warranty that the services are accurate, complete, reliable, current, error-free, or virus-free or that the operation of the services will be uninterrupted. Some jurisdictions do not allow exclusion of an implied warranty, so this disclaimer may not apply to you.

14.2

To the fullest extent permitted by applicable law, in no event will Malum, its partners, service providers, affiliates or any of their respective directors, officers, employees or agents be liable to you for any special, incidental, indirect, punitive, exemplary or consequential damages, whether foreseeable or unforeseeable, which may arise out of or in connection with these terms of use, regardless of whether either party has been apprised of the possibility or likelihood of such damages occurring, or whether claims are based or remedies are sought in contract or tort otherwise. To the fullest extent permitted by applicable law, Malum's aggregate (i.e., not per-claim) liability under, arising from, or related to these Terms of Use will be limited to $50,000.

15. Waiver and Severability

If any provision of these Terms of Use is held to be invalid or unenforceable by a court of competent jurisdiction, the parties nevertheless agree that the court should endeavour to give effect to the parties' intentions as reflected in the provision, and the other provisions of these Terms of Use remain in full force and effect. Malum's acquiescence in the breach of a provision of these Terms of Use or failure to act upon such breach does not waive Malum's right to act with respect to subsequent or similar breaches. Likewise, the delay or failure of Malum to exercise or enforce any right or provision of these Terms of Use shall not constitute a waiver of such right or provision.

16. Confidentiality

All Confidential Information provided by one party to any other party under these Terms of Use is deemed to be confidential. The receiving party shall not use, disclose, or otherwise take any advantage of such Confidential Information. In particular:

16.1

each party shall exercise the same degree of care to avoid the publication or dissemination of the confidential information of the other party as it affords to its own confidential information of a similar nature which it desires not to be published or disseminated, which in any event shall not be less than reasonable care.

16.2

Confidential Information disclosed under these Terms of Use shall only be used by the receiving party within the purpose of these Terms of Use or the performance of its obligations hereunder. The receiving party agrees not to use the disclosing party’s confidential information except in the course of performing hereunder and will not use such confidential information for its own benefit or for the benefit of any third party.

16.3

the obligation of the parties not to disclose confidential information shall survive the termination or cancellation of these Terms of Use. However, no party shall be obligated to protect confidential information of the other party which:

(i) is rightfully received by the receiving party from another party without confidential obligation to such party;

(ii) is known to or developed by the receiving party independently without use of the confidential information;

(iii) is, or becomes generally known to the public by other than a breach of duty hereunder by the receiving party;

(iv) furthermore, a receiving party may disclose confidential information that is required to be disclosed pursuant to a requirement of a government agency or law so long as the receiving party provides prompt notice to the disclosing party of such requirement prior to disclosure.

17. Privacy

Malum will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Buyer and your data, as described in our Privacy Policy which can be found at https://malum.co/legal/privacy-policy (or such other URL that Malum may provide from time to time).

18. Termination

18.1

Either party may terminate these Terms of Use at any time by giving at least thirty (30) days’ notice in writing, or by immediate notice in writing to the other if:

(i) the other commits a material breach of its obligations under these Terms of Use and such breach is not remediable;

(ii) the other commits a material breach of its obligation under these Terms of Use which is not remedied within 14 days of receiving written notice of such breach;

(iii) any consent, licence or authorisation held by the other is revoked or modified such that the other is no longer able to comply with its obligations under these Terms of Use or receive any benefit to which it is entitled;

(iv) there is any suspected fraudulent/criminal activity/non-compliance of local laws and regulations;

(v) the other if the other stops carrying on all or a significant part of its business, or indicates in any way that it intends to do so, or is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986) or becomes insolvent or an order is made or a resolution passed for the administration, winding-up or dissolution of the other (otherwise than for the purposes of a solvent amalgamation or reconstruction) or an administrative or other receiver, manager, liquidator, administrator, trustee or similar officer is appointed over all or any substantial part of the assets of the other or the other enters into or proposes any composition or arrangement with its creditors generally or any analogous event occurs in any applicable jurisdiction.

18.2

Termination or expiry of these Terms of Use shall not affect any accrued rights and liabilities of either party at any time up to the date of termination.

19. Rights and Obligations on Termination or Expiration

19.1

Termination or expiration of these Terms of Use shall not release either party from the obligation to make payment of all amounts then or thereafter due and payable.

19.2

Upon termination or expiration of these Terms of Use, Malum will within thirty (30) days return to you or destroy (i) all access details to the Product; (ii) all manuals, documentation, product literature, fee schedules and other written materials provided by you; or (iii) all Confidential Information and other property of you, provided that such materials or information are in its possession or under its control.

20. General

20.1

The parties agree that these Terms of Use constitute the entire agreement between them and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral in respect of its subject matter.

20.2

Each party acknowledges that it has not entered into these Terms of Use in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in these Terms of Use. No party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in these Terms of Use.

20.3

You may not assign, subcontract or encumber any right or obligation under these Terms of Use, in whole or in part, without Malum's prior written consent, such consent not to be unreasonably withheld or delayed. Any assignment in violation of this Section 20.3 is void.

20.4

A party shall not be in breach of these Terms of Use nor liable for delay in performing, or failure to perform, any of its obligations under these Terms of Use if such delay or failure result from an event, circumstance or cause beyond a party’s reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations.

20.5

Unless otherwise expressly agreed, no delay, act or omission by either party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy.

20.6

Except as expressly provided in these Terms of Use, the rights and remedies provided under these Terms of Use are in addition to, and not exclusive of, any rights or remedies provided by law.

20.7

If any provision or part-provision of these Terms of Use is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of these Terms of Use.

20.8

Each party shall comply with all laws, enactments, regulations, regulatory policies, guidelines and industry codes applicable to it and shall maintain such authorisations and all other approvals, permits and authorities as are required from time to time to perform its obligations under or in connection with these Terms of Use.

20.9

The parties are independent businesses and not partners, principal and agent, or employer and employee, or in any other relationship of trust to each other.

21. Governing Law and Jurisdiction

These Terms of Use 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 of Use.

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