Terms of Use

100emart | Terms of Use 

Last updated: December 30, 2023

Thank you for choosing 100emart! The following are the Terms of Use (“Terms”) tailored for the 100emart platform. These Terms outline the rules and restrictions governing your use of our applications, products, services, and websites (“Services”). They constitute a legally binding agreement between you and us. By completing the registration process and/or browsing the Services, you affirm that (1) you have read, understood, and agreed to be bound by these Terms; (2) you are of legal age to enter into a binding contract with us; (3) you have the authority to enter into these Terms personally; and (4) if you are using the Services on behalf of a company or another entity, (a) you agree that “you” includes you and that entity, (b) you are an authorized representative of the entity with the authority to bind it to these Terms, and (c) you agree to these Terms on the entity’s behalf. Please do not access or use the Services unless you agree to be bound by all of these Terms.

1. Overview 1.1 Your residence determines the party with which you enter these Terms:

• If you reside in the United States, these Terms are between you and Whaleco Inc., a Delaware company.
• If you reside in the United Kingdom, these terms are between you and Whaleco UK Limited, a UK company.
• If you reside in Canada, you contract with Whaleco Canada Inc., and the applicable terms are here.
• If you reside anywhere other than the United States, Canada, or the United Kingdom, these Terms are between you and Whaleco Technology Limited, an Ireland company.

1.2 Whaleco Inc., Whaleco UK Limited, and Whaleco Technology Limited, as applicable, are referred to in these Terms and Policies (as defined below) as “we” or “us.” For purposes of these Terms and Policies, we also refer to:

• Our website and mobile apps, which may offer features, products, services, or content, including exchanges of information, as “100emart” or “our app”;
• End-users, including visitors to 100emart and those who use 100emart to purchase products, as “you.”

1.3 We and our affiliates provide technical and operational support for our app. You may pay for multiple orders in one transaction on 100emart. Multiple orders may be delivered together in one package.

1.4 Your use of, and participation in, certain Services are also subject to additional policies we may publish from time to time (“Policies”), including our Privacy Policy and our Cookie and Similar Technologies Policy. If the Terms are inconsistent with the Policies, the Policies shall control with respect to the relevant subject matter.

1.5 PLEASE BE AWARE THAT SECTION 19 BELOW CONTAINS PROVISIONS GOVERNING HOW DISPUTES BETWEEN YOU AND US WILL BE RESOLVED, INCLUDING WITHOUT LIMITATION, ANY DISPUTES THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THE TERMS. SECTION 19 CONTAINS, AMONG OTHER THINGS, AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND US BE RESOLVED BY BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE AGREEMENT TO ARBITRATE WITHIN 30 DAYS OF THE EFFECTIVE DATE OF THE AGREEMENT: (1) YOU AND WE WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST THE OTHER PARTY ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING AND EACH OF US WAIVES OUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION; AND (2) EACH OF US IS WAIVING OUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL. IN SOME COUNTRIES, YOU MAY HAVE ADDITIONAL RIGHTS AND/OR ELEMENTS OF THE ARBITRATION AGREEMENT MAY NOT APPLY TO YOU AS REQUIRED BY LAW.

**1.6 PLEASE NOTE THAT THESE TERMS ARE SUBJECT TO CHANGE BY US IN OUR SOLE DISCRETION AT ANY TIME. When changes are made, we will publish a copy of the current Terms and any updated Policies available on 100emart, and we will also update the “Last Updated” date at the top of the Terms. We encourage you to periodically review the Terms and Policies for the latest version. Unless otherwise stated in such an update, any changes to the Terms will be effective immediately for users of the Services without an Account and thirty (30) days after posting for users with Accounts. We may require you to provide consent to the updated.

2. User Requirements and Registration

2.1 Age and Eligibility: To utilize the Services, you affirm that you are at least eighteen (18) years old and legally eligible to enter into a binding contract. Minors between 13 and 18 years old may use our Services through an Account owned by a parent or legal guardian, with appropriate permission and under direct supervision. Individuals under 13 years old are not permitted to use 100emart or its Services. Products designed for children may be available on 100emart but are intended for purchase by adults. Certain products may be restricted to individuals of specific ages or deemed suitable for “mature audiences” only. By purchasing such products, you certify that you meet the age requirements to view, use, own, or receive them. We are not responsible for offensive, indecent, or objectionable third-party content.

2.2 Eligibility Restrictions: You may not use the Services if: (a) you cannot enter into a binding contract with us; (b) you are located in a country embargoed by your country of residence or another relevant country; (c) you are on any agency list of prohibited persons or entities, such as the U.S. Treasury Department’s list of Specially Designated Nationals; or (d) you are banned from using the Services by us, in our sole discretion.

2.3 Account Creation and Responsibilities: To access certain Services, you may need to create an account (“Account”). When creating your Account on 100emart, you agree to provide accurate, complete, and updated information about yourself, including contact details. It is your responsibility to keep your registration information up to date. You are liable for all activities occurring under your Account and agree to monitor and restrict its use by minors. You may not choose a username you don’t have the right to use, or another person’s name with the intent to impersonate them. Transferring your Account to others without our prior written permission is prohibited. You agree not to create an Account or use the Services if you have been permanently banned. Sharing your Account or password is not allowed, and you agree to promptly notify us of any unauthorized use or security breaches.

2.4 Social Networking Service (SNS) Integration: You can register an Account by linking through a social networking service (“SNS”) account. If you choose this method, you may link your Account with SNS Accounts by permitting access, as allowed under the applicable terms and conditions of your SNS Account. By granting access, you understand that we may access, make available, and store any content provided and stored in your SNS Account (“SNS Content”) for use on the Services. Unless specified otherwise, all SNS Content is considered User Submissions under these Terms. Depending on your SNS privacy settings, personal information posted on your SNS Accounts may be accessible on the Services via your Account. Note that if an SNS Account becomes unavailable or access is terminated, SNS Content will no longer be accessible on the Services. You can disable this connection at any time in the “Settings” section. YOUR RELATIONSHIP WITH SNS PROVIDERS IS GOVERNED BY YOUR AGREEMENT(S) WITH THEM, AND WE DISCLAIM LIABILITY FOR PERSONAL INFORMATION PROVIDED TO US IN VIOLATION OF YOUR SNS ACCOUNT PRIVACY SETTINGS. We do not review SNS Content for accuracy, legality, or non-infringement and are not responsible for any SNS Content.

3. Rules and Restrictions

3.1 Responsible Use: You agree to use 100emart’s Services solely for personal use and not on behalf of or for the benefit of any third party. Your usage must comply with these Terms, Policies, and all applicable laws and regulations. If your use is prohibited by any laws, you are not authorized to use the Services. We are not responsible if you engage in unlawful activities through the Services.

3.2 Account Security: You are responsible for all activities linked to your Account. Safeguard your Account and password, refraining from sharing them with third parties. Promptly notify us of any unauthorized use or security breaches involving your Account.

3.3 Single Account Creation: Creating multiple accounts is not permitted.

3.4 Promotions: Promotions such as sweepstakes, contests, or surveys accessible through the Services may have separate rules. If Promotion rules conflict with these Terms, the Promotion rules will prevail.

3.5 User Conduct: When using the Services, you agree not to undertake any action or provide User Submissions that may:

• Infringe upon or violate another person’s rights, including intellectual property rights.
• Violate these Terms, the Policies, or applicable laws and regulations.
• Engage in harmful, abusive, misleading, fraudulent, threatening, harassing, defamatory, or discriminatory conduct.
• Circumvent or attempt to circumvent these Terms, Policies, or other Services rules, including Promotions.
• Constitute unauthorized advertising, or spam.
• Collect personal data from other users.
• Compromise the security of your Account.
• Obtain another user’s password or account information.
• Impersonate or misrepresent your identity or affiliation.
• Violate or interfere with computer network functioning.
• Run auto-responder or spam processes.
• Potentially harm the Services, including introducing harmful code.
• Copy or store significant portions of Services content without written consent.
• Decompile, reverse engineer, or obtain source code.
• Purchase products prohibited by law.
• Abuse promotions, discounts, or interfere with product listings.

Any violation may result in:

• Removal or refusal to post User Submissions.
• Cancellation of product purchases.
• Cancellation of Rewards or payments.
• Suspension or termination of access to the Services.

Upon detecting possible violations, we reserve the right to investigate and, if criminal activity is suspected, cooperate with legal authorities. We may disclose information related to your use of the Services to comply with laws, enforce the Terms and Policies, respond to claims, or protect the rights, property, or safety of users or the public.

4. Privacy

4.1 Personal Information Handling: Our Privacy Policy outlines the collection, use, and disclosure of your personal information when using 100emart’s Services. By accessing or using the Services, you acknowledge and agree that we may collect, access, use, preserve, and disclose your personal information, including Account and user information, as described in our Privacy Policy and Cookie and Similar Technologies Policy. The Privacy Policy is an integral part of these Terms, and your agreement to these Terms binds you to the Privacy Policy and Cookie and Similar Technologies Policy terms.

5. Communications

5.1 Electronic Communication Consent: You consent to receiving electronic communications from us, such as emails, texts, mobile push notices, and notices through the Services (“Push Messages”). Opt-in consent, as required by law, will be obtained for the delivery of Push Messages. You acknowledge that your wireless service provider may charge fees for data, text messaging, and/or wireless access, including Push Messages. You are solely responsible for any associated fees and expenses.

5.2 Contact Methods: We may contact you through any email address or telephone number you provide for various purposes, including notifying you about your Account, resolving disputes, collecting debts, conducting surveys, updating you on orders, and enforcing these Terms, Policies, and applicable laws. Standard text messaging charges by your carrier apply to text messages we send.

5.3 Marketing Messages: If you opt to receive marketing materials via mobile texts and alerts, you may sign up to do so. By signing up, you acknowledge that we may send you promotional messages, including order notifications, promotional messages, and abandoned cart reminders. Opting in for one program does not automatically opt you into another. Message frequency varies, and standard Message and Data Rates may apply. You can opt-out of SMS texts by replying STOP to the corresponding number. Opting out may impact your Service use. You can resume the subscription by replying UNSTOP. Your consent records will not be shared with third parties, except text messaging service providers.

5.4 Opt-Out of Marketing Emails: To opt out of marketing emails, follow the unsubscribe options in the marketing email.

5.5 Recordings for Quality Control: Your communications with us may be recorded, monitored, and stored for quality control, training purposes, or to protect your and our interests, subject to our Privacy Policy.

6. User Submissions

6.1 Definition and Content Standards: “User Submission” encompasses any content you post, upload, share, submit, or provide through the Services, including comments, reviews, photos, videos, or other materials. User Submissions visible on your Account must adhere to our content standards and may not contain nudity, violence, sexually explicit material, or offensive content determined at our sole discretion.

6.2 License Grant: For all User Submissions, you grant us a comprehensive license, including the right to use, modify, create derivative works, display, reproduce, distribute, and sublicense. This license allows us to operate, market, and advertise the Services while respecting your preferences.

6.3 Non-Confidential Nature: You acknowledge that User Submissions, including your username, are non-confidential and non-proprietary. We may freely use, display, disclose, reproduce, modify, license, transfer, distribute, and utilize User Submissions without any restriction or compensation to you.

6.4 Ownership and Warranties: You warrant that you own or control all rights to User Submissions, and their use won’t infringe upon third-party rights or violate these Terms. We do not endorse User Submissions and disclaim liability for damages resulting from them.

6.5 Integrity and Monitoring: Users must maintain integrity in viewable User Submissions, especially in product ratings and reviews. Your submissions must be truthful, made in good faith, and based on firsthand experience. Sponsored or paid User Submissions must be clearly indicated. We reserve the right to pre-screen, refuse, or remove User Submissions at our discretion.

7. Ownership

7.1 Intellectual Property Protection: All materials on the Services, including text, graphics, data, photos, and User Submissions (“Content”), are protected by copyright and intellectual property laws. You agree not to use any Content without the owner’s prior consent.

7.2 Intellectual Property Rights Enforcement: We respect intellectual property rights and may delete or disable content that infringes upon others’ rights, terminating the accounts of alleged infringers. Refer to our Intellectual Property Policy for reporting infringements.

7.3 Service Ownership: You acknowledge our ownership or licensing of the Services. You agree not to exploit, modify, or engage in any unauthorized use of the Services.

7.4 Limited License: Subject to compliance with these Terms and payment of applicable fees, you are granted a limited, non-exclusive license for personal and non-commercial use of the Services. Any commercial use requires explicit permission from us.

7.5 Restrictions and Commercial Use: You may not make commercial use of Service information or utilize the Services for another business’s benefit without our prior approval. Any violation may result in refusal of service, account termination, or canceled transactions at our discretion.

8. Responsibilities; Third-Party Risks

8.1 By utilizing the Services on 100emart, you acknowledge and agree that any content publicly posted or privately transmitted is the sole responsibility of the individual posting or transmitting such content. Your access, use, and interaction with the content, as well as other users, are at your own risk. We disclaim responsibility for errors, mistakes, omissions, or inaccuracies in the content. We do not exert control over the content and bear no duty to take action regarding how you interpret, use, or react to it. We are not obliged to review, monitor, approve, endorse, or make representations or warranties concerning the content. Furthermore, we cannot guarantee the identities of users you interact with, and we are not responsible for determining which users gain access to the Services.

8.2 You assume responsibility for all content you contribute to the Services in any manner. By contributing content, you represent and warrant that you possess all rights necessary to contribute such content to the Services in that manner.

8.3 The Services may feature links or connections to third-party websites or services not owned or controlled by 100emart. We disclaim control and assume no responsibility for the content, accuracy, privacy policies, or practices, or opinions expressed on such third-party websites or services. We do not monitor, verify, censor, or edit the content of any third-party website or service. You acknowledge and agree that we are not responsible for any risks resulting from your access or use of any third-party websites or services. We encourage you to be aware when leaving the Services and to read the terms of use and privacy policy of each third-party website or service you visit or use.

8.4 Interactions with other users, entities, or individuals resulting from your use of the Services, including communications, payments, performances, and deliveries, are solely between you and such third parties. However, we reserve the right, without obligation, to intercede in such interactions. Before proceeding with any interaction with these third parties, you should conduct any necessary investigation and seek appropriate professional advice. We are not responsible for any loss or damage incurred as a result of such interactions, and we will not be liable for any associated liabilities.

8.5 It is a material breach of these Terms to arrange for the sale of listed items from, or the payment of fees to third parties outside the context of 100emart for the purpose of circumventing the obligation to pay the fee for products purchased through the Services.

9. Release

9.1 We expressly disclaim any liability that may arise between users of 100emart. In the event of a dispute between you and another user or any third party on 100emart, we are under no obligation to become involved. To the fullest extent permitted under applicable law, you release 100emart, its parents, subsidiaries, affiliates, directors, officers, employees, agents, and successors from all claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes.

IN ENTERING INTO THIS RELEASE, YOU EXPRESSLY WAIVE ANY PROTECTIONS (WHETHER STATUTORY OR OTHERWISE) THAT WOULD LIMIT THE COVERAGE OF THIS RELEASE TO INCLUDE ONLY THOSE CLAIMS WHICH YOU MAY KNOW OR SUSPECT TO EXIST IN YOUR FAVOR AT THE TIME OF AGREEING TO THIS RELEASE.

10. Purchases

10.1 Your responsibility includes thoroughly reading the complete product listing before confirming a purchase on 100emart. By confirming your purchase, you agree to pay all applicable fees, taxes, shipping costs, and associated amounts. Additionally, you acknowledge your responsibility for sales tax, VAT, and customs duties where applicable. Upon product delivery to the carrier, the product’s title transfers to you. You agree to act as the importer for purchased products and authorize us to appoint a freight forwarding agent to act on your behalf for paying any sales tax, VAT, and customs duties. Note that estimated values for sales tax, VAT, customs duties, and similar charges may be subject to change based on applicable laws, and you are responsible for any additional amounts assessed. We will not be liable for product delays or denied customs clearance due to your failure to pay such amounts.

10.2 While we strive for accuracy on 100emart, typographical errors, inaccuracies, or omissions related to pricing, product descriptions, availability, and offers may occur. Subject to applicable law, we reserve the right to correct errors, inaccuracies, or omissions, change or modify information, or cancel orders without prior notice. This includes after your order submission, order confirmation, or shipping notice. Do not solely rely on strike-through prices in your purchase decision, and for accurate price comparisons, conduct your own assessment before making a purchase.

10.3 Before placing your order, carefully review all product descriptions and restrictions. If you have special circumstances (e.g., a medical or health condition) that may be affected by the product, it is your responsibility to inform us before placing your order.

10.4 While we make reasonable efforts to ensure accurate color displays on 100emart, we cannot guarantee that your monitor’s display accurately depicts the color of the selected product.

10.5 You acknowledge that products are in conformity with the transaction if they comply with the description, possess presented qualities, are fit for normal use, and meet the expected quality and performance standards for goods of the same type.

10.6 To make purchases, provide accurate information for a valid payment method authorized for your use. Promptly update your account with any changes to your payment method. By providing payment information, you authorize charges for purchased products, applicable customs, taxes, shipping costs, and other associated charges. Payments are non-refundable except as provided in applicable policies. We may decline, freeze, or hold your transaction for various reasons, including suspected fraud, anti-money laundering compliance, or if the transaction poses a risk to us or third parties.

10.7 Payment Processors may charge fees for purchases made through 100emart, disclosed via the platform. Your use of Services and payment processing is subject to your agreement with the Payment Processor. As a condition of using payment services, provide accurate information, authorizing us to share it with the Payment Processor.

10.8 Your payment obligations are fulfilled upon receiving your payment of the agreed price.

11. Refunds, Exchanges, and Related

11.1 Customer Support: We provide customer service support to assist you with payment, returns, refunds, and other aspects related to your product purchases.

11.2 Satisfaction Guarantee: Our aim is to ensure your satisfaction with purchases made through the Services. For all products acquired on 100emart, you may be eligible for a return and refund. Refer to our Return and Refund Policy for detailed information. If you wish to request a refund, kindly follow the instructions outlined in the policy. Please note that unless otherwise specified in the Return and Refund Policy, refunds will not cover customs, taxes, or any return shipping costs incurred during the refund process.

12. Rewards: 12.1 Reward System: As a user of the Services, you may receive credits, coupons, cash, gifts, or other forms of rewards (collectively referred to as “Rewards”). Some rewards are applicable only for discounts on or payment towards eligible purchases made on or through the Services (please note that not all products may be eligible). These rewards generally cannot be redeemed for cash, except where required by law. It is important to carefully review the information and rules pertaining to different types of rewards.

13. Ending Our Relationship: 13.1 Freedom to Stop Services: You have the liberty to cease using the Services at any time. Similarly, we retain the right to terminate or suspend your use of the Services or your Account at our discretion, including instances of your breach of these Terms. You acknowledge and agree that we hold the sole right to determine whether you are in violation of the restrictions outlined in these Terms. Even following the termination or suspension of your use of the Services, these Terms will remain binding, and any outstanding amounts owed to us will remain due.

13.2 Account Termination: In the event of Account termination for any reason, all associated Content and Rewards linked to your Account will be permanently deleted and cancelled. It is recommended to utilize any remaining Rewards before the effective date of such termination.

13.3 Survival of Terms: All provisions of the Terms that, by their nature, should survive, shall remain in force following the termination of these Terms. This includes, but is not limited to, ownership provisions, warranty disclaimers, and limitations of liability.

14. Warranty Disclaimer

14.1 Disclaimer of Warranties: To the fullest extent permitted by applicable law, we explicitly disclaim all representations or warranties, whether express or implied, pertaining to the Services, any content, or any product offered or purchased on or through the Services. This includes, without limitation, warranties of product condition, quality, durability, performance, accuracy, reliability, merchantability, fitness for a particular purpose, or non-infringement. Additionally, we disclaim any warranties regarding the accuracy, correctness, completeness, or legality of the content. All such warranties, representations, conditions, and undertakings are expressly excluded. No communication or information, whether oral or written, obtained from or through the Services, shall create any warranty not expressly stated herein. Furthermore, we make no representations or warranties regarding suggestions or recommendations of products offered or purchased on or through the Services. This section 14 does not impact our Return and Refund Policy for products purchased on the Services.

14.2 Use at Your Own Risk: Your use of the Services and any product offered and purchased on or through the Services is entirely at your own risk. To the fullest extent permitted by applicable law, unless expressly provided otherwise, the Services, products offered and purchased on or through the Services, and the content are made available to you on an “as-is” and “as-available” basis, with all faults and without warranties of any kind.

14.3 Liability for Third-Party Conduct: You acknowledge and agree that the 100emart parties (as defined in section 16.1) are not liable, and you agree not to seek to hold the 100emart parties liable, for the conduct of third parties, including operators of external sites. The risk of injury from such third parties rests entirely with you. We make no promises with respect to, and expressly disclaim all liability for: (1) products, services, information, programming, and/or anything else provided by a third party that is accessible to you on or through the Services; or (2) the quality or conduct of any third party you encounter in connection with your use of the Services.

14.4 User Responsibility: You acknowledge and agree that, to the fullest extent permitted by applicable law, you assume full responsibility for your use of the Services, including your interactions with other users of the Services. Any information you send or receive during your use of the Services may not be secure and may be intercepted or otherwise accessed by unauthorized parties. You agree that, to the fullest extent permitted by applicable law, we are not responsible for any loss or damage to your property or data that results from any materials you access or download from the Services.

14.5 Reliance on Data or Information: If you rely on any data or information obtained on or through the Services, you do so at your own risk. You are solely responsible for any damage or loss that results from your use of such data or information.

15. Limitation of Liability

15.1 General Limitation: To the fullest extent permitted by applicable law, under no circumstances and under no legal theory (including, without limitation, tort, contract, strict liability, or otherwise), shall 100emart parties be liable to you or any other person for:

• any indirect, incidental, consequential, special, exemplary, or punitive damages of any kind, including damages for loss of data, profits, revenue, or goodwill, reputational harm, business interruption, accuracy of results, or computer failure or malfunction arising out of or in connection with the Services; or
• your use of the Services, including, without limitation, any inability to access or use the Services or the purchase and use of products offered on or through the Services, even if we or any other person has foreseen or been advised of the possibility of such damages. The foregoing limitation of liability shall not apply to liability of a 100emart party for:
  • death or personal injury caused by our gross negligence; or for
  • any injury caused by our fraud or fraudulent misrepresentation.

15.2 Disclaimer Application: This disclaimer applies, without limitation, to the maximum extent permitted under law, to any damages or personal injury arising from any failure of performance, error, omission, interruption, deletion, defects, delay in operation or transmission, computer virus, file corruption, communication-line failure, network or system outage, theft, destruction, unauthorized access to, alteration of, loss or use of any record or data, and any other tangible or intangible loss.

15.3 User Conduct: You specifically acknowledge and agree that we shall not be liable for any defamatory, offensive, or illegal conduct by any user of the Services.

15.4 Maximum Liability: To the fullest extent permitted by applicable law, under no circumstances will the total aggregate amount for which the 100emart parties are liable to you exceed the greater of:

• the total amount paid to us by you during the one-month period prior to the act, omission, or occurrence giving rise to such liability;
• $100.00; or
• the remedy or penalty imposed by the statute under which such claim arises. The foregoing cap on liability shall not apply to liability of a 100emart party for:
  • death or personal injury caused by our gross negligence; or for
  • any injury caused by our fraud or fraudulent misrepresentation. The preceding sentence shall not preclude the requirement for you to prove actual damages.

15.5 Jurisdictional Variations: Certain jurisdictions do not allow the exclusion or limitation of certain damages or implied warranties. If these laws apply to you, some or all of the above exclusions or limitations may not apply to you, and you might have additional rights.

15.6 Essential Agreement: The limitations of damages set forth above are essential to the agreement between you and us.

16. Indemnity

16.1 Your Indemnification Obligation: To the fullest extent permitted by applicable law, you agree to indemnify and hold harmless 100emart, our parents, subsidiaries, affiliates, directors, officers, agents, employees, suppliers, licensors, and partners (each, a “100emart Party,” and collectively, the “100emart Parties”) from and against any and all claims, liabilities, damages, losses, and expenses (including reasonable attorneys’ fees) arising from or in connection with any third-party claims related to:

• your use of the Services, including, without limitation, User Submissions, or any actions taken by a third party using your Account;
• your violation of these Terms;
• your violation of any rights of another party, including, without limitation, any copyright, property, or privacy right or any third-party agreement; or
• your violation of any applicable laws, rules, or regulations.

In the event of such a claim, suit, or action (“Claim”), we will attempt to provide notice of the Claim to the contact information we have for your Account (provided that failure to deliver such notice shall not eliminate or reduce your indemnification obligations under these Terms).

16.2 100emart’s Right to Assume Defense: We reserve the right, at our own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which case you will fully cooperate with us in asserting any available defenses.

16.3 Survival of Provisions: You agree that the provisions in this section will survive any termination of your Account, the Terms, and/or your access to the Services.

17. App Stores

17.1 Application License: Subject to your compliance with the Terms, we grant you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the 100emart mobile application (“Application”) on a single mobile device or computer that you own or control and to run such copy of the Application solely for your own personal or internal business purposes. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application:

• on an Apple-branded product that runs the iOS (Apple’s proprietary operating system);
• as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service.

Notwithstanding the first sentence in this section, with respect to any Application accessed through or downloaded from the Google Play store (a “Google Play Sourced Application”), you may have additional license rights with respect to use of the Application on a shared basis within your designated family group.

17.2 App Stores: You acknowledge and agree that the availability of the Application and the Services is dependent on the third party from whom you received the Application license, e.g., the Apple App Store or Google Play (each, an “App Store”). You acknowledge that the Terms are between you and us and not with the App Store. We, not the App Store, are solely responsible for the Services, including the Application, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance, or intellectual property infringement).

In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the Services, including the Application. You agree to comply with, and your license to use the Application is conditioned upon your compliance with all terms of agreement imposed by the applicable App Store when using any Service, including the Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Terms and will have the right to enforce it.

17.3 Accessing and Downloading the Application from iTunes: The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:

17.3.1 Conclusion of Terms: You acknowledge and agree that (i) the Terms are concluded between you and us only, and not Apple, and (ii) we, not Apple, are solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.

17.3.2 Maintenance and Support: You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.

17.3.3 Warranty Claims: In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Apple and us, any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty will be our sole responsibility.

17.3.4 Claims Responsibility: You and we acknowledge that, as between Apple and us, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.

17.3.5 Intellectual Property Claims: You and we acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Apple and us, we, not Apple, will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim to the extent required by the Terms.

17.3.6 Apple’s Right to Enforce: You and we acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.

17.3.7 Compliance with Third-Party Terms: Without limiting any other terms of the Terms, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.

18. General

18.1 Assignment: You may not assign, delegate, or transfer these Terms, or your rights and obligations hereunder, to any other person in any way (by operation of law or otherwise) without our prior written consent. Any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. We may transfer, assign, or delegate these Terms and its rights and obligations hereunder to any other person without your consent.

18.2 Force Majeure: We shall not be liable for any delay or failure to perform resulting from causes outside our reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, pandemics, strikes, or shortages of transportation facilities, fuel, energy, labor, or materials.

18.3 Choice of Law: These Terms and any dispute that might arise between you and us will be governed by the laws of the State of New York and applicable federal laws of the United States of America, consistent with the Federal Arbitration Act, without regard to any principle of conflict-of-laws. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms.

18.4 Exclusive Venue: Any dispute that arises out of or in connection with the Services and is not subject to arbitration or eligible for small claims action shall be decided exclusively by:

• if you enter into these Terms with Whaleco Inc., a court of competent jurisdiction located in New York, New York;
• if you enter into these Terms with Whaleco Technology Limited, a court of competent jurisdiction located in Ireland;
• if you enter these Terms with Whaleco UK Limited, a court of competent jurisdiction located in England. You hereby consent to, and waive all defense of lack of personal jurisdiction and forum non conveniens with respect to, venue and jurisdiction in such courts.

18.5 Notice: You acknowledge and agree that we may give notice to you through email using the latest email address you provided to us, which constitutes effective notice. Therefore, you are responsible for keeping your email address information with us up to date. You may give notice to us at the following addresses:

If to Whaleco Inc.: Whaleco Inc. Suite 355, 31 St. James Avenue Boston, Massachusetts 02116 USA

If to Whaleco Technology Limited or Whaleco UK Limited: Whaleco Technology Limited First Floor, 25 St Stephens Green Dublin 2, Ireland

Such notice shall be deemed given when received by us by letter delivered by nationally recognized overnight delivery service or first-class postage prepaid mail at the above address.

18.6 Export Control: You undertake to use the Services and products purchased on or through the Services in compliance with all applicable export and re-export restrictions. You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or listed on any U.S. Government list of prohibited or restricted parties.

18.7 Consumer Complaints: In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs.

18.8 Waiver: Our failure to respond to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches.

18.9 Severability: If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable.

18.10 Third-Party Beneficiaries: There are no third-party beneficiaries intended under these Terms.

18.11 Entire Agreement: These Terms are the final, complete, and exclusive agreement of the parties with respect to the subject matter hereof and supersede all prior discussions between the parties.

18.12 Translation: The translated versions of these Terms are provided for your reference only. In case of discrepancies between the English version and versions in other languages, the English version shall prevail.

18.13 International Provision – United Kingdom: This provision applies only if you are located in the United Kingdom: A third party who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any provision of this Agreement, but this does not affect any right or remedy of such third party which exists or is available apart from that Act.

19. ARBITRATION AGREEMENT

PLEASE READ THIS SECTION 19 (“ARBITRATION AGREEMENT”) CAREFULLY. THIS SECTION CONTAINS PROVISIONS GOVERNING HOW DISPUTES BETWEEN YOU AND 100EMART WILL BE RESOLVED. THIS INCLUDES AN AGREEMENT TO ARBITRATE, WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND 100EMART BE RESOLVED BY BINDING AND FINAL ARBITRATION. THIS SECTION 19 ALSO CONTAINS A CLASS ACTION AND JURY TRIAL WAIVER. IN SOME COUNTRIES, YOU MAY HAVE ADDITIONAL RIGHTS, AND/OR ELEMENTS OF THIS ARBITRATION AGREEMENT MAY NOT APPLY TO YOU AS REQUIRED BY LAW.

19.1 Applicability of Arbitration Agreement: Subject to the terms of this Arbitration Agreement, you and 100emart agree that any dispute, claim, or disagreement arising out of or relating in any way to your access to or use of the Services, any communications you receive, any products sold or distributed through the Services, or the Terms will be resolved by binding arbitration, using the English language, rather than in court. Exceptions include: (1) claims or relief sought in small claims court if they qualify; and (2) seeking equitable relief in court for infringement or other misuse of intellectual property rights.

19.2 Informal Dispute Resolution: In case of a Dispute, 100emart is committed to working with you for a reasonable resolution. Before initiating arbitration, both parties will engage in good faith informal efforts to resolve Disputes through an Informal Dispute Resolution Conference. The initiating party must give notice to the other party within forty-five (45) days, and an Informal Dispute Resolution Conference must occur. The statute of limitations and filing fee deadlines will be tolled during this process.

19.3 Waiver of Jury Trial: YOU AND 100EMART HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. All Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 19.1 above. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.

19.4 Waiver of Class and Other Non-Individualized Relief: BOTH PARTIES AGREE THAT CLAIMS AGAINST THE OTHER SHALL BE BROUGHT ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS. The parties waive all rights to have any Dispute arbitrated or heard on a class, collective, representative, or mass action basis. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only to the extent necessary to provide relief warranted by the party’s individual claim. Notwithstanding, if a final decision determines that these limitations are invalid or unenforceable for a particular claim, that claim may be litigated in the courts provided for under Section 18.4. All other Disputes shall be arbitrated. This subsection does not prevent participation in a class-wide settlement of claims.

19.5 Rules and Forum:

The Terms reflect a transaction involving interstate commerce. Notwithstanding any contrary provision herein regarding substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution Process described above does not yield a satisfactory resolution within sixty (60) days after the receipt of Notice, both parties agree that either party has the right to conclusively resolve the Dispute through binding arbitration.

The arbitration will be administered by the American Arbitration Association (the “AAA”), a recognized alternative dispute resolution provider, following its rules, including the Consumer Arbitration Rules (the “AAA Rules”), in effect at that time, unless otherwise mandated by law. AAA’s rules can be found at https://adr.org/consumer, or by calling 1-800-778-7879. All proceedings under the AAA Rules may be initiated where your residence is or in New York, New York, and any in-person hearings will occur at a location reasonably convenient for both parties, taking into account their ability to travel and other relevant circumstances. If AAA is unavailable, the parties will mutually select an alternative arbitral forum. Your responsibility for any AAA fees and costs will be solely as outlined in the applicable AAA rules.

Should the Parties be unable to resolve the Dispute through the mandatory informal dispute resolution process mentioned earlier, either party may commence an arbitration proceeding by serving a demand on the other party. This demand must describe the nature and basis of the claim and include all information required in the arbitration notice (“Arbitration Notice”). The initiating party must incorporate into the demand a personally signed certification attesting to compliance with the informal dispute resolution process. The Arbitration Notice must include: (1) the name, telephone number, mailing address, and email address of the party seeking arbitration, along with the account username (if applicable) and the email address linked to any relevant account; (2) a statement outlining the legal claims and their factual basis; (3) a description of the remedy sought and a bona fide calculation of the amount in controversy in United States Dollars; (4) a statement certifying completion of the Informal Dispute Resolution process as described above; and (5) evidence of payment for any required filing fees associated with such arbitration. If the party seeking arbitration is represented by counsel, the Arbitration Notice must also include counsel’s name, telephone number, mailing address, and email address, with counsel’s signature. Counsel must affirm, to the best of their knowledge and belief, after a reasonable inquiry under the circumstances, that: (1) the Arbitration Notice is not being presented for any improper purpose, such as harassment or unnecessary delay; (2) the claims, defenses, and legal contentions are supported by existing law or a nonfrivolous argument for extending, modifying, or reversing existing law or establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.

Unless mutually agreed otherwise, or the Batch Arbitration process detailed in Section 19.9 is triggered, the arbitration will take place in the county where you reside. Subject to the relevant AAA rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, in line with the expedited nature of the arbitration. If the AAA is unavailable, the parties will select an alternative arbitral forum. Both parties agree that all materials and documents exchanged during arbitration proceedings will remain confidential and shall not be disclosed to anyone except the parties’ attorneys, accountants, or business advisors, who must agree to maintain confidentiality. Throughout the arbitration, any settlement offer made by either party should not be revealed to the arbitrator until after the arbitrator issues a final decision and award, if any.

19.6 Arbitrator:

The arbitrator shall be either a retired judge or an attorney licensed to practice law in the State of New York, chosen by the parties from the AAA roster of consumer dispute arbitrators. Should the parties fail to reach an agreement on an arbitrator within thirty-five (35) days of delivering the Arbitration Notice, the AAA will appoint the arbitrator in line with the applicable AAA rules. It is important to note that if the Batch Arbitration process under Section 19.9 is activated, AAA will appoint the arbitrator for each batch.

19.7 Authority of Arbitrator:

The arbitrator holds exclusive authority to resolve any Dispute, encompassing disputes arising from or associated with the interpretation or application of the Arbitration Agreement. This authority covers matters such as enforceability, revocability, scope, or validity of the Arbitration Agreement or any part thereof, except for the following exceptions:

1. All Disputes arising from or related to Section 19.4, including any claim asserting that all or part of Section 19.4 is unenforceable, illegal, void, or voidable, or that Section 19.4 has been breached, shall be adjudicated by a court of competent jurisdiction and not an arbitrator.
2. Unless explicitly contemplated in Section 19.9, Disputes regarding the payment of arbitration fees shall be resolved solely by a court of competent jurisdiction and not an arbitrator.
3. Disputes about whether either party has fulfilled any condition precedent to arbitration shall be determined only by a court of competent jurisdiction and not an arbitrator.
4. Disputes about which version of the Arbitration Agreement applies shall be decided solely by a court of competent jurisdiction and not an arbitrator.

The arbitration proceeding will not be consolidated with any other matters or combined with other cases or parties, except as expressly provided in Section 19.9. The arbitrator is empowered to grant motions that dispose of all or part of any Dispute. Following the arbitration, the arbitrator will issue a written award and statement of decision outlining the essential findings and conclusions forming the basis of the award, including the calculation of any damages awarded. The arbitrator’s decision is final and binding on both parties, and the judgment on the arbitration award may be entered in any court with jurisdiction.

19.8 Attorneys’ Fees and Costs:

In arbitration, each party shall bear their own attorneys’ fees and costs unless the arbitrator deems that either the substance of the Dispute or the relief sought in the Arbitration Notice was frivolous or brought for an improper purpose (in accordance with the standards set forth in Federal Rule of Civil Procedure 11(b)). If the invocation of a court of competent jurisdiction is necessary to compel arbitration, the party obtaining an order compelling arbitration in such action has the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys’ fees incurred in securing an order compelling arbitration. The prevailing party in any court action related to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution Process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.

19.9 Batch Arbitration:

To enhance the efficiency of administering and resolving arbitrations, both parties acknowledge and agree that if there are twenty-five (25) or more individual Arbitration Notices of a substantially similar nature filed against us by or with the assistance of the same law firm, group of law firms, or organizations within a thirty (30) day period, the following procedures will be followed:

1. The American Arbitration Association (AAA) will administer the arbitration demands in batches of 100 Arbitration Notices per batch (or in a single batch if there are fewer than 100 Arbitration Notices in total).
2. One arbitrator will be appointed for each batch.
3. The batches will be administered concurrently.
4. The resolution of each batch will occur as a single consolidated arbitration with one set of filing and administrative fees per side per batch, one procedural calendar, one hearing (if any) at a location determined by the arbitrator, and one final award (“Batch Arbitration”).

Arbitration awards in one batch will not establish precedents for subsequently administered batches. Parties agree that Arbitration Notices are of a “substantially similar nature” if they arise from or relate to the same event or factual scenario, raise similar legal issues, and seek comparable relief. In cases of disagreement on the application of the Batch Arbitration process, the party shall notify AAA, which will appoint an Administrative Arbitrator to determine its applicability. The Administrative Arbitrator’s fees will be covered by us. Both parties commit to cooperating in good faith with AAA to implement the Batch Arbitration process, including the payment of single filing and administrative fees for batches of Arbitration Notices, and steps to minimize time and arbitration costs.

This Batch Arbitration provision does not authorize class, collective, mass arbitration, or actions of any kind, or arbitration involving joint or consolidated claims, except as expressly set forth in this provision.

19.10 30-Day Right to Opt Out:

You reserve the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to the applicable address specified in Section 18.5 within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name, address, the email address used to set up your Account (if applicable), and an unequivocal statement expressing your desire to opt out of this Arbitration Agreement. Opting out has no effect on other parts of these Terms, and all remaining terms will continue to apply. Opting out of this Arbitration Agreement does not impact any other arbitration agreements you currently have or may enter into in the future with us.

19.11 Invalidity, Expiration:

Except as provided in Section 19.9, if any part of this Arbitration Agreement is found to be invalid or unenforceable, that specific part shall be severed, and the remainder of the Arbitration Agreement will remain in full force. For clarity, if Section 19.9 is found to be invalid or unenforceable, the entire Arbitration Agreement is considered null. Additionally, any Dispute detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation, or it will be forever time-barred. All relevant statutes of limitation will apply to such arbitration as they would in the applicable court of competent jurisdiction.

19.12 Modification:

In the event of any future material change to this Arbitration Agreement, we commit to notifying you. Unless you reject the change within thirty (30) days of its effective date by writing to us at the address in Section 18.5, your continued use of the Services, including accepting products and services offered through the Services, constitutes acceptance of the changes. Rejecting a change does not provide a new opportunity to opt out if you previously agreed to the Terms and did not opt out of arbitration. If you reject any change to this Arbitration Agreement and were bound by an existing agreement to arbitrate Disputes, the provisions of this Arbitration Agreement as of the date you first accepted the Terms (or accepted any subsequent changes to the Terms) will remain in effect. We will continue to honor any valid opt-outs of the Arbitration Agreement made under a prior version of the Terms.

Contact us

1. If you are accessing the 100emart platform through the 100emart website, please contact us via the designated email address found on the “Contact us” page linked in the website footer.

2. If you are utilizing the 100emart platform through the 100emart application, kindly reach out to our customer support team by navigating to the “You” menu at the bottom of the home page and selecting the “Contact us” section.