Last Updated on December 13, 2020. These Terms of Service (which, together with the Business Terms below, are the “Terms”) are effective immediately for users accessing or using the Service without an Account or those registering Accounts on or after December 13, 2020, and will become effective January 31, 2020 for users with pre-existing Accounts. To review the previous terms, please click here.
PLEASE NOTE: THESE TERMS INCLUDE DISPUTE RESOLUTION PROVISIONS (SEE SECTION 13) THAT, WITH LIMITED EXCEPTIONS, REQUIRE THAT (1) CLAIMS YOU BRING AGAINST YELP BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND (2) YOU WAIVE YOUR RIGHT TO BRING OR PARTICIPATE IN ANY CLASS, GROUP, OR REPRESENTATIVE ACTION OR PROCEEDING.
Terms and Conditions
1 – Purpose
These Terms and Conditions shall refer to the Internet site operated by the Company D-list.net and the website between EDASSGROUP LTD. (hereinafter referred to as “Company") and the Users and including affiliate sites. The purpose of this section is to provide all the necessary matters related to the subscription and use of the services (hereinafter referred to as “Services") provided by the “Site").
2 – Definition of Terms
The main terms used in this agreement are as follows.
(1) Member: A person who registered with the Company by providing member ID and phone number to receive the service.
(2) Member ID: An email address provided by the member for identification of the member and use of the member’s services.
(3) Password: It is selected by the member for the member’s personal information after confirming that the member is the same as the member’s ID.
(4) Mobile phone authentication: Membership authentication by sending a 6-digit number via SMS (text message) to register the authentication number received on the mobile phone on the site.
3 – Effectiveness and Change of Terms and Conditions
(1) Will become effective upon joining membership and may be amended within the scope of the relevant laws. The revised terms come into effect through online notice, and important notices such as user’s rights or obligations are notified in advance.
(2) By agreeing to these terms, you agree to visit the website regularly to check for changes to the terms. The company is not responsible for any damages caused by not knowing the information on the changed terms.
(3) If a member does not agree with the revised terms and conditions, he / she may request to withdraw from the membership and use of the service will be deemed to accept and agree to the terms and conditions.
4 – Membership
(2) The member must verify his / her identity through the self-identification service, and all the information on the registration form determined by the company is considered to be true. If the contents are false or if there is a reasonable reason for suspecting such occurrence, the Company may delete all IDs of the members who applied for subscription and stop all or part of the provision of this service. We are not responsible for any disadvantages that occur. The company may require proof if necessary to resolve this.
(3) Member’s registration as a member of the company’s site means that he / she agrees to receive telephone and e-mail related to the service.
(4) The company can divide the member’s grade into paid service and the member may be restricted from using the service according to the grade. Details regarding membership levels are as set out in the member service guide. This may be changed by the Company’s policy, and the change will take effect immediately after the notice.
(5) The Company shall register the applicant as a member, unless the applicant who applies for membership fall under each of the following. However, if you fall under any of the following categories, you can withhold your acceptance of membership, restrict your use of the site, and refuse to apply.
1. If the registration is found to be false or if there is a reasonable reason to suspect it.
2. The applicant has lost his / her membership on the Internet site in violation of these Terms or other relevant laws.
3. If he / she has technical difficulties.
4. If he / she is considered to be in violation of social order and morals.
5. In the case of using this service for the purpose of pursuing for profit.
6. If the use approval is difficult or the application requirements set by the company are insufficient.
5 – Obligations of the Company
(1) The Company shall endeavor to provide continuous and stable service.
(2) The Company will not leak or distribute the member’s personal information known to the third party without the user’s consent. However, there is exception, if there is a request from a national agency under the provisions of the law of the land, such as criminal investigation, or a request from the Information and Communication Ethics Committee, or other procedures.
(3) Within the scope of point 2), the Company may prepare and use statistical data on all or some of the personal information related to the work and transmit cookies to the member’s computer through the service. In this case, you can change the settings on your computer’s browser to refuse to accept cookies or warn you of receiving cookies.
(4) The company provides various information and advertisements that the member deems necessary during the use of the service by e-mail, letter, or wired / wireless telephone.
(5) In principle, when the company considers that complaints from members are justified, it will be handled positively.
6 – Obligations of Members
(1) Member’s own information required for membership must be true and accurate. In addition, the information on the members already provided must be maintained and updated to be truthful and accurate information. The member is responsible for any problems arising from false information, and the company is not responsible. Members ID and gender cannot be modified.
(2) The member shall be responsible for any dishonest information provided by the member and other acts that violate these Terms of Service. In case of damage to the company, the company shall hold the member responsible for civil and criminal liability.
(3) The company does not guarantee the identity of members. In addition, the member is solely responsible for any problems arising between members through online and offline meetings through the site, and the company is not responsible. Therefore, any form of meeting requires careful judgment by the member.
(4) Members must check and comply with the notices or notices of the Company, or the Company shall not be responsible for any problems or damages caused by the Member.
(5) The member bears all responsibility for all forms of information posted, transmitted or obtained through this service, or posted, transmitted or obtained through e-mail or other means, and we are not responsible for any form of information.
(6) Members shall not engage in the following activities.
1. To steal someone else’s ID, password, name and to reveal their ID and password.
2. To register use false information when applying for membership or to change personal information.
3. Post obscene, abusive, threatening or transfer content that could violate the privacy of others, posting, showing acts, sent by e-mail or any other way act to hide the source of the transmission or the information published through the service.
4. Interfere with the normal operation, maintenance, etc. of the service or delay action that the act of spreading computer viruses, etc.
5. Copying or distributing service information or personal information on the company’s Internet site, commercially using it, or providing it to others without the company’s approval.
6. Hacking, commercial activity through sexually explicit sites, illegal distribution of commercial software, etc and acts that can be objectively determined to be related to crime.
7. Modifying the company’s client programs, hacking the company’s servers, hacking into the website or any portion of information posted or arbitrarily modify the whole.
8. Acts in violation of the policies and other relevant laws and regulations established by the Company, including these Terms and Conditions.
(7) Members expressly agree with the Company you may not transfer or give the right to use the service or other status under the contract unless you give it to another person.
(8) In case of violating this agreement or for other reasons, the member’s activity will be suspended and the company will start checking the facts. If it is determined that the contents of the report are inappropriate, it is a rule to be forced to withdraw.
7 – Management of Posts and Communication Contents between Members
(1) The member has the right and responsibility for the contents of the post (including personal information of the member) posted by the member. However, the company has the right to post in the service and can use it for the purpose of publicizing the service. All information posted by the member can be edited, moved or deleted arbitrarily in the following cases or when there are reasonable reasons.
1. If the posted content violates these Terms.
2. If it violates public order and morals.
3. If it is a defamation or defamation of another member or a third party.
4. Deemed to be related to criminal activity In case of content that is incompatible with the nature of the service.
5. In case of commercial, illegal, obscene or vulgar content and cases that are determined to be in violation of other laws.
(2) Responsibility for preservation of posts registered on the site (including personally identifiable data etc.) is the responsibility of the individual members and the company is not responsible for the preservation.
8 – Restriction and Suspension of Service Provision
(1) The Company may limit or suspend all or part of the service if –
1. If a member violates the member’s obligations set forth in these Terms and Conditions, Service Guide, or Related Laws.
2. Use of IDs and nicknames that undermines morals and injuries to others or third parties or users Insult or disadvantage, or interfere with the use of the service.
3. Intentionally interfere with the operation of the company’s service or impersonate the company’s management, employees, or officials.
4. In case of registering false information when applying for membership or changing personal information.
5. When the information obtained by using the company’s service information is copied, distributed or commercially used without the prior consent of the company.
6. When transmitting a large amount of information or advertising information for the purpose of preventing the stable operation of the service or for profit.
7. When there is a problem in normal service due to national emergency, natural disaster, power outage, failure of facilities or runaway usage.
8. When there is a reason that replacement and service cannot be provided with new service.
9. Inevitable due to the company’s policy for improving the service of the company.
(2) Members who use the service can suspend, reset, and terminate the use of the service without notice of the use of the service.
9 – Obligations for the User’s ID, Password, and Termination
(1) The member shall be responsible for all management of the member’s ID and password.
(2) Members should not let their third parties use their ID and password.
(3) Members should notify the company immediately if their ID and password are stolen or if they are recognized by a third party and follow the company’s instructions.
(4) The Member shall terminate the access correctly at the end of each use of the Service, and the Company shall not be responsible for any damages or losses incurred by you as a result of the third party using the information about you by not doing so. Is not responsible.
10 – Termination of Use Agreement
(1) If the member wants to terminate the use contract, the member himself / herself applies for the termination by the company’s guidance, and the company terminates the use contract through the confirmation procedure. If it is determined that a few days are needed due to system problems the member will be notified of the reason and later terminated.
(2) The Company may terminate the right to use any or all of the provided services without prior notice if the Member violates this agreement or service guide or other related laws.
11 – Disclaimer
(1) If the company cannot provide the service due to natural disaster, the company shall be exempted from responsibility for providing the service.
(2) The Company shall be exempted from liability in case of damage caused by the telecommunication service provider’s suspension or failure to provide telecommunication services.
(3) The Company shall not be liable for any failure to use the Service due to the Member’s fault.
(4) The Company shall be exempted from liability for damages caused by the member’s failure to obtain the expected benefits from the provision of the Company’s services or from the selection or use of the service materials.
(5) The Company shall be exempted from responsibility for the personal information provided by the member on the site and the contents such as information, data, reliability of the facts and accuracy.
(6) The Company shall not be responsible for damages such as the loss or damage of the member’s posts, etc. Therefore, the member should always take extra storage measures for the data.
(7) The Company shall not be liable for any damages caused by a user’s computer error, or if a member inaccurately writes personal information and e-mail address.
(8) The Company shall not be liable for any damages caused by materials obtained by the member using the service.
(9) The company does not guarantee the identity of members. In addition, the company is not responsible for compensation for the mental and material damages caused by the member’s use of the service and other members.
(10) The Company is not obliged to intervene in disputes arising through the service between the users and between the users and third parties, and is not responsible for compensation for the damages.
(11) The Company shall not be liable for any damages related to the use of the services provided free of charge to the members.
(12) The Company has no control over the contents of other Internet sites linked to this site and maintained by third parties. Accordingly, the Company assumes no legal responsibility for the accuracy and reliability of the information contained on other Internet sites.
(13) The Company shall not be liable for any loss caused by the member’s violation of these Terms and Conditions and liability will be waived for any problems arising from materials that the Member has allowed to be released.
(14) The Company is not aware of the reliability, accuracy and content of the information, materials and facts posted by or communicated with others, and is therefore not responsible for any social, ethical or legal issues that arise.
12 – Providing notification and information for members
(1) Notice and notice to members is posted on the site or in writing, you can by telephone, facsimile transmission or the electronic mail (E-mail).
(2) The Company may provide consultation and information for members and sales purposes by e-mail, telephone, SMS, or written method in order to provide better services to its members or to provide new products of the company.
(3) The Company may request additional personal information with the consent of the member for the purpose of improving the service and introducing the service to the member.
13 – Advertising and Transactions with Advertisers
(1) Part of the service investment base that the company can provide services to its members comes from the profits from advertisements. The Member agrees to display and send advertisements when using the service.
(2) The Company shall not be liable for any loss or damage caused by the member’s participation in, or communication with, or trading on the advertiser’s promotional activities.
14 – Dispute Resolution
(1) The company shall endeavor to deal with complaints and opinions submitted from members first.
(2) If there is a dispute between the parties regarding the member’s use of the service, it shall be dealt with by the parties, but in principle, it shall be resolved in accordance with the principle of good faith.
15 – Competent Court and Governing Law
(1) D-list.com is registered and operated under the law of Bangladesh and State of Virginia in the United States.
(2) Litigation concerning disputes arising between a company and a member related to the use of the service shall be the court having jurisdiction over our local office.
(3) Bangladesh and State of Virginia in the United States law applies between the company and members regarding the use of this service.
Effective Date : These Terms and Conditions are effective from December, 2020.
These Terms govern your access to and use of our products and services, including those offered through our websites, events, communications (e.g., emails, phone calls, and texts) and mobile applications (collectively, the “Service”). By accessing or using the Service, you are agreeing to these Terms, which form a legally binding contract with: (i) D-list Inc., a Delaware corporation with its headquarters in Mirpur-2, Dhaka-1216, unless you are a resident of a country in the Asian Economic Area (the “AEA”) or Bangladesh; or (ii) D-list Bangladesh Ltd., a limited liability company established and resident under the laws of the Peoples Republic of Bangladesh, if you are a resident of a country in the AEA or Bangladesh. “D-list” means D-list Inc. or D-list Bangladesh Ltd., as applicable. Do not access or use the Service if you are unwilling or unable to be bound by the Terms. For more information about our policies and instructions relating to the Service, click here.
Copyright © 2020 D-list Inc., Dhaka, BD.
Last Updated on December 13, 2020.
The following terms (“Business Terms”), in addition to the Terms of Service above, govern your access to and use of your Business Account. In the event of any conflict between these Business Terms and the Terms of Service, the Business Terms apply. If you have purchased products or services from D-list on behalf of your business (e.g., advertising or business tools), the terms of that purchase apply in the event of any conflict with these Business Terms. Capitalized words used but not defined in these Business Terms have the meanings described in the Terms of Service. By creating, accessing, or using your Business Account, you are agreeing to these Business Terms and concluding a legally binding contract with D-list. You are not authorized to create, access, or use a Business Account if you do not agree to these Business Terms.
PLEASE READ THESE BUSINESS TERMS CAREFULLY AS THEY REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN TRIALS OR CLASS ACTIONS, AND ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
In the event of any termination of these Business Terms, whether by you or us, these Business Terms in their entirety will continue in full force and effect.
These Affiliate Terms and Conditions (the “Agreement”) shall constitute an Agreement between you (“You” or “Affiliate”) and D-list Limited (hereinafter referred to as (the “Company”) for the registration and appointment of the Affiliate to provide the Company with Promotion of the Channels. The Affiliate and the Company shall collectively be referred to as the “Parties” and individually as the “Party”.
The Affiliate must read, agree to, and accept all of the terms and provisions contained in this Agreement, by clicking “I Accept” button, and the Parties hereby agree, acknowledge and accept that clicking such button shall instantly form a valid, effective and legally binding agreement for good consideration between the Parties.
This Agreement constitutes the complete and exclusive statement of the agreement of both the Parties with respect to the subject matter of this Agreement, and supersedes all prior oral and written commitments, understandings, and communications between the Parties regarding such matter. The Company may, at its sole discretion, amend the Agreement, from time to time, by providing the revised version(s) of the same to the Affiliate in writing, at the sole discretion of the Company, without being required to give any prior notice to the Affiliate. Any continued performance of its obligations under this Agreement, by the Affiliate after the revised Agreement has come into effect shall be deemed as the Affiliate’s consent to such revised Agreement.
WHEREAS, the Company is a leading e-commerce organization of Bangladesh which for the purpose of this Agreement is engaged in the provision of advertising services and Affiliate is willing and able to provide promotional services and content of the Channels to Customers, for the Company, for the purpose of increasing the user traffic on those Channels. The Company now engages the Affiliate, and the Affiliate accepts such engagement, to perform the Promotion of the Channels in the Territory on the terms and conditions specified herein.
1.1 Advertising Material shall mean any advertising materials provided by the Company to the Affiliate, to be published by the Affiliate on the Affiliate’s Accounts solely for the purposes of conducting the Promotion of the Channels, in accordance with the terms and conditions herein.
1.2 “Affiliate” or “You” shall have the meaning given to the term in the Preamble above (i.e. the first Party named above, who shall be engaged for the purpose of, and authorized by the Company to promote the Channels on the terms and conditions of this Agreement).
“Affiliate’s Account” shall mean all advertising and/or promotion-capable medias utilized by the Affiliate, including without limitation websites, applications, social media accounts, emails, audiovisual media channels (whether digital or traditional), newsletters, Affiliate networks’ sub affiliates, their owned and brokered medias, to publish the Advertising Materials for the Promotional of the Channels, in accordance with the terms hereunder.
1.4 “Agreement” shall have the meaning given to the term in the Preamble above (i.e. these Affiliate Terms and Conditions).
1.5 “Channels” shall mean the online marketplace operating under the style and name of ‘D-list’, through collectively through the (1) mobile application of the same name and (2) the web portals located at www.d-list.net owned and operated by the Company.
1.6 “Chargeback” shall mean a charge that is returned to a Customer’s payment card (whether a debit, credit, or charge card as the case may be) after the Customer successfully disputes an item on their card’s account statement or transactions report with that Customer’s bank.
1.7 “Click” shall mean a Customer’s click on a Hyperlink provided by the Affiliate, which routes that Customer directly to the Channel(s).
1.8 “Commission” shall have the meaning given to the term in Clause 3.1 hereunder.
1.9 “Commission Exemptions” shall have the meaning given to the term in Clause 3.2 hereunder.
1.10 “Company” shall mean D-list Limited, a company established under the Companies Act 1994, having its registered office at Duip plot no-2, Road-2, Block-B, sec-2, Mirpur-2, Dhaka-1216, Bangladesh.
1.11 “Confidential Information” shall have the meaning given to the term in Clause 6.1.
1.12 “Customer” shall have the meaning given to the term in Clause 2.1 hereunder.
1.13 “Hyperlink” shall mean a link provided to the Affiliate by the Company, to the Channel (or a specific Product listing on the Channel) in the form of an exact URL, to be published by the Affiliate in the Affiliate’s Accounts, which identifies the Affiliate whenever a Customer Clicks on it.
1.14 “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
1.15 “Invoice” shall mean the monthly invoice issued by the Company, on behalf of the Affiliate which specifies the Commissions that accrued in favour of the Affiliate in the preceding calendar month, minus any applicable deductions.
1.16 “Net Sales” shall mean sales revenue received by the Company for the sale of any Product to the Customer which involves the (1) Customer’s Click of a Hyperlink; and/or (2) input of a Voucher Code at checkout on the Channel; and where such sale is not directly or indirectly caused by a Commission Exemption; minus all the corresponding applied discounts (whether through Voucher Code, or otherwise applied by the seller of the Product or the Company at checkout).
1.17 “Product” shall mean any product(s) listed for sale by third party sellers on the Company’s Channels.
1.18 “Promotion” shall have the meaning given to the term in Clause 2.1 hereunder. a charge that is returned to a Customer’s payment card (whether a debit, credit, or charge card as the case may be) after the Customer successfully disputes an item on their card’s account statement or transactions report with that Customer’s bank.
1.19 “Returns and Refunds Policy” shall mean the applicable Company policies which govern the procedure for returns and refunds of Products by Customers on the relevant Channels located at Returns and Refunds Policy of Bangladesh.
1.20 “Term” shall have the meaning given to the term in Clause 11.1 hereunder.
1.21 “Territory” shall mean any geographical region in the world.
1.22 “VAT” shall mean value-added taxes.
2.1 The Company appoints the Affiliate as its Channel promotion affiliate for the Territory, wherein the Affiliate shall conduct Promotions for the Channels for the Affiliate’s followers, subscribers, and/or any person visiting the Affiliate’s website(s) and/or social media accounts (“Customers”), as well as publish the Advertising Materials of the Affiliate’s Accounts to induce them to visit and use the Channels (“Promotion”).
2.2 Affiliate shall only conduct the Promotion of the Channels to Customers within the Territory, except as otherwise approved in writing by Company.
2.3 The Channels within the Territory will be covered non-exclusively by Affiliate, and the Company is free to engage other affiliates to provide similar services to the Promotion with the Territory.
3.1 In consideration for the Affiliate’s performance of its obligations and as good and valuable consideration, the Company shall pay to the Affiliate, a commission on the Net Sales in the Territory, at such rates as shall be specified in writing and notified by the Company to the Affiliate, from time to time (“Commission”). The Commission is inclusive of VAT, where applicable, and shall be subject to levy and deduction of all applicable taxes (including without limitation withholding taxes and VAT). The rate(s) applicable to the Commission may be revised at any time at the sole discretion of the Company, subject to prior written notice being provided to the Affiliate to such change.
3.2 The Parties hereby agree, acknowledge and confirm that Commission shall not be payable against Net Sales of any Products (a) which were subsequently returned and/or refunded in accordance with the Company’s Returns & Refunds Policy; (b) against which there was a Chargeback; (c) which were part of a transaction against which any form of fraudulent activity has been suspected or found by the Company, (d) where the order transaction was cancelled by the Customer after placing it; (e) where the Customer purchased the Product with the intention of reselling it; and (f) where the order was linked to the Affiliate’s conduct of any of the prohibited actions specified in Clause 7.6.1-7.6.15 hereunder (hereinafter collectively referred to as “Commission Exemptions”) .
3.3 Commission payments together with the Invoice shall be issued and published by the 7th day of each calendar month of the Term, for the Commission accrued in favor of the Affiliate in the preceding calendar month. Commission against the Net Sales of a Product shall accrue in favor of the Affiliate in the calendar month that the refund/return window of a purchased Product has elapsed for its corresponding Customer, as per the Returns and Refunds Policy, and provided that no Commission Exemptions have occurred against such Product. Commission payments against an Invoice shall be payable by the Company to the Affiliate within 15(fifteen) from the date of issue of the Invoice (subject to the provisions of Clause 3.3.2 hereunder). Commission payments shall be made in Bangladeshi Taka (BDT).
3.3.1 The Parties hereby agree, acknowledge and confirm that once an Invoice has been issued, the Affiliate cannot request any changes to the contents or form of such Invoice, for any reason whatsoever. If the Affiliate wishes to contest the contents of the Invoice, they may only do so to challenge any perceived discrepancies, under the provisions of Clause 3.5.1 and 3.5.2 hereunder (if applicable).
3.3.2 The Company reserves the right to withhold any Commission payments under an Invoice, where the aggregate Commission due and payable under such Invoice is less than BDT 500 (Taka Five Hundred) only. In such event, the Company shall carry over the accrued Commission onto the Invoice for the following calendar month, and pay the same out only once the total Commission due on a subsequent Invoice crosses BDT 500 (Taka Five Hundred).
3.4 The Company shall specify any deductions made against the Commissions in the corresponding Invoice. The Company shall be entitled to make deductions from the Commissions for the following reasons:
3.4.1 To adjust any erroneous overcalculation of Commissions due in a previous Invoice;
3.4.2 For Commissions paid against a previous Invoice, for a Product against which a Commission Exemption under Clause 3.2 (b), (c), (e), or (f) occurred after that corresponding Invoice was issued (or if the Company became aware of such Commission Exemption after the corresponding Invoice was issued);
3.4.3 For any applicable withholding taxes (including VAT if applicable) that the Company is required to withhold as per the law;
3.4.4 For Commissions which are linked to any breach of the Affiliates obligations or representations under this Agreement;
3.4.5 For any processing fees and/or bank charges incurred by Company with respect to the transferring the relevant Commission payments to the Affiliate; and
3.4.6 To set-off any amounts due to the Company from the Affiliate, for any reason whatsoever.
3.5 The Company shall also provide the Affiliate with access to a dashboard on the Channel, which shall allow the Affiliate to view historical data on (a) how many times Customers have visited the Channels by Clicking the Hyperlink; (b) how many orders were placed by the Customers as a result of the Promotion; (c) how much sales revenue was generated to calculate the Net Sales; and (d) Customer conversion rates.
3.5.1 The Affiliate may reconcile Invoice against the data on this dashboard, and in the event the Affiliate finds a discrepancy which potentially indicates an error in calculation of Commissions on the Invoice, the Affiliate shall be entitled to raise a dispute, by notifying the Company in writing no later than 30 (thirty) days after that Invoice is issued.
3.5.2 Where the Affiliate raises a dispute under Clause 3.5.1, the Company shall conclusively investigate the dispute to determine whether or not there is any merit to the dispute, and if so, the Company shall adjust the Commissions payable in favour of the Affiliate on the following Invoice. In the event no merit is found that dispute shall be resolved in favour of the Company. The Company’s calculation of Commission due as a result of such investigation shall be final and conclusive for determination of disputes raised under Clause 3.5.1.
4. PROMOTION AND ORDER TRACKING
4.1 In performance of its obligations under the Agreement, the Affiliate shall not quote any prices, terms, conditions, deals, offers, competitions, campaigns, nor lotteries for any of the Products on the Channels, other than those expressly specified in writing by the Company. Any prices, terms, conditions, deals, offers, competitions, campaigns, and lotteries for the Products are to be established solely by the Company, with immediate effect.
4.2 The Company shall be the custodian of record with respect to all Net Sales of Products, Commissions, and Commission Exemptions. The Parties further hereby agree, acknowledge, and confirm:
4.2.1 That tracking and reporting on the Channels, of orders, Clicks, and sales of Products through the Hyperlink and Voucher Code in conducted by the Company, by which a cookie is dropped on the Customer’s browser to track transaction back to the Affiliate and by which the device ID is used to track transactions generated from the Channels.
4.2.2 The Company credits a sale of the Product to the Affiliate, if the Affiliate is in the last position of the Click chain preceding the purchase of that Product by the Customer.
4.2.3 Cookies dropped for the purpose of order tracking of Products by Customers under Clause 4.2.1 shall be valid and available for 7 days thereafter.
4.3 All orders for any Products on the Channels are subject to acceptance or rejection by an authorized officer of Company at its home office and to the approval of the Company’s credit department. The Company shall not be obligated to accept any orders from the Customers and may reject such orders in its whole and sole discretion, with no liability towards the Affiliate for such rejections.
5. RELATIONSHIP OF COMPANY AND AFFILIATE
5.1 Nothing in this Agreement shall be construed to constitute Affiliate as the partner, joint venture, employee, or agent of the Company nor shall either Party have any authority to bind the other in any respect, it being intended that each shall remain an independent contractor responsible only for its own actions.
5.2 The Company and Affiliate agree that during the Term of the Agreement, and any renewal thereof and for a 01 (one) year period following termination/expiration of the Agreement, neither Party shall hire or engage or attempt to hire or engage an employee of the other or an independent representative under contract with the other Party, without first obtaining prior written approval from the other Party. Both Parties agree that the loss of such employee or independent representative would result in irreparable harm and grants to the other Party the right to seek damages and an injunction in a court of equity or other competent authority to enforce its rights hereunder.
6. CONFIDENTIAL INFORMATION
6.1 Unless otherwise specified in the Agreement, all information exchanged during the course of the Agreement (“Confidential Information”) shall be regarded as confidential between the Parties and shall not be disclosed to any unauthorized person or used by the recipient other than for the purpose to which it relates. Any authorized disclosure to another person(s) shall be on the same terms as to confidentiality as contained in this clause. Parties hereby agree to make available Confidential Information only to those of their employees who need to have access to it for the purposes of this Agreement and to obligate such employees correspondingly to the extent legally permissible.
6.2 If, for the purposes of this Agreement, a Party discloses any Confidential Information to its employees, it shall notify such employees of the confidential nature thereof and make all necessary efforts and take all precautions to bind such employees to keep the Confidential Information strictly confidential.
6.3 During and after the tenure of this Agreement if any Confidential Information is received by a Party under or by virtue of this Agreement the same shall be maintained in the strictest of confidence and trust.
6.4 The following disclosures of the other Party’s Confidential Information shall not be deemed as authorized and shall not be a breach of any of the confidentiality obligations under this Clause 6:
a. To comply with the mandatory provisions of applicable law or the rules of any recognized jurisdiction;
b. The information is in the public domain, other than through a breach of this clause;
c. For the purposes of any arbitration or legal proceedings arising from this Agreement; and
d. To any governmental authority at their request.
6.5 The obligation of confidentiality and limited use shall survive termination of this Agreement and continue even after the termination or expiry of this Agreement.
7. AFFILIATE RESPONSIBILITIES AND PROHIBITIONS
7.1 The Affiliate shall ensure that all individual representatives, personnel, staff of the Affiliate that are involved in the Affiliate’s performance of its obligations under this Agreement, have the requisite access to any equipment and amenities required to enable the Affiliate to perform its obligations under this Agreement (and that the Company shall not be responsible for providing the same). The Affiliate will diligently devote its time and efforts towards the selling of the Products.
7.2 The Affiliate shall conduct all of its performance of its obligations under this Agreement, in its own name and in such manner as it may see fit. The Affiliate shall pay all expenses of its office and activities and will be responsible for the acts and expenses of its personnel/staff/representatives.
7.3 The Affiliate shall not, without the Company’s prior written approval, make any representations or guarantees concerning the Products or accept the return of, or make any allowance for such Products.
7.4 The Affiliate shall abide by Company’s policies and communicate same to the Customers.
7.5 The Affiliate hereby represents, warrants and covenants that:
7.5.1 it has full corporate power and authority to enter into this Agreement;
7.5.2 it will not, by virtue of entering into and performing this Agreement, be in violation of any contractual obligation it owes to a third party or the Company under any other agreement, or any term or provision of any judgment or decree to which it is a party or by which it is bound, nor under any contractual or legal obligation which shall supersede any of the Affiliate’s obligations under this Agreement;
7.5.3 the performance by the Affiliate of the Promotion of the Channels required under this Agreement does not and will not violate any applicable law, rule or regulation or any intellectual property right of a third party;
7.5.4 it will not use in the performance of its responsibilities under this Agreement any confidential information or trade secrets or intellectual property of another person or entity without the appropriate license, authorization, permit or consent;
7.5.5 it is skilled in the professional calling necessary to perform the Promotion of the Channels and its duties and obligations contained herein;
7.5.6 it shall perform the Promotion of the Channels in conformance to and consistent with applicable law and the standards generally recognized as being employed by professionals in the same discipline on an international level in an engagement of similar scope, complexity and duration;
7.6 The Affiliate shall not, under any circumstances, do any of the following:
7.6.1 display any links, materials, or other Company-related content on any website or application that contains any pornographic, hate-related, graphic, violent or illegal content, or any content that promotes discrimination based on race, ethnicity, sex, religion, nationality, disability, sexual orientation or age;
7.6.2 bid for any search engine placement/optimization/marketing using the term “D-list”, “d-list.net”, “Shop”, “shop.com” or any variation or misspelling of the terms “D-list” or “Shop”.
7.6.3 display any Company-related content on any website, that in any way disparages the Company, its affiliates or subsidiaries or their products or services or infringes on any of the Company’s intellectual property or other rights.
7.6.4 duplicate, copy, reverse-engineer, edit, modify, truncate, or change the Company’s cookies and/or tracking links in any way.
7.6.5 Cause, encourage, or endorse any transactions to be made with the Company that are not in good faith.
7.6.6 Conduct any activities associated with the Promotion of the Channels that are in any way unethical and/or illegal and/or designed to mislead the Customers.
7.6.7 indulge in any activities that could, in the Company’s judgment, reflect poorly on the Company (and/or the Company’s affiliate businesses, partners and associated undertakings) or otherwise disparage or devalue Company’s reputation or goodwill, or create any confusion amongst Customers between D-list and any third party.
7.6.8 include any intellectual property of the Company or its affiliates, or a variant or misspelling of such intellectual property, in any domain name, subdomain name, or in any username, group name, email address, or social network identifier, or unauthorizedly use and/or tamper the Company’s name (or any variant or misspelling thereof), Intellectual Property Rights in any manner whatsoever.
7.6.9 Utilize any Company Content to update or create the Affiliate’s own database of business listings information or use the to build an email list for the Affiliate’s own (or any third party’s) commercial purposes.
7.6.10 create, disclose, or sell any information or metrics about, or perform any statistical analysis of the Company’s content.
7.6.11 engage in cookie stuffing or fraudulent activity.
7.6.12 cause any software to be downloaded or installed on a Customer’s systems, without that Customer’s prior affirmative consent.
7.6.13 not set any cookies unless the Advertising Materials are in visible use on that Affiliate Account and allows the Customer to specifically and consciously Click on the same. The Affiliate shall not use layers, add-ons, iFrames, pop- up, pop-under, site-under, Auto-redirect advertisements which automatically redirect the Customer to Advertiser websites without the Customer’s engagement or action (e.g. click, touch), cookie dropping, postview technology, misleading advertisements that result in misleading Clicks that display expected content, shall not be permitted and are strictly prohibited.
7.6.14 not purchase any Products from any Channels through the Promotion, nor through using a Hyperlink, nor through use of any Voucher Codes linked to the Promotion under this Agreement. Furthermore, no Commission shall be payable on any Net Sales generated through violation of this Clause 7.6.14, and any such violations shall constitute a material breach of this Agreement.
7.6.15 not intentionally or negligently cause (whether directly or indirectly) any Products from any Channels through the Promotion, to be purchased by businesses and/or resellers (i.e. any third party that purchases a Product with the intention of reselling the same further). Furthermore, no Commission shall be payable on any Net Sales generated through violation of this Clause 7.6.15, and any such violations shall constitute a material breach of this Agreement.
8. COMPANY RESPONSIBILITIES AND LIMITATIONS OF LIABILITY.
8.1 The Company shall be solely responsible for the ensuring the display, and supply of the Products, and the sellers listing the Products on the Channels shall be responsible for the design, development, production, and performance of its Products and the protection of its trade names. The Company’s aggregate liability towards the Affiliate under this Agreement, whether in contract, tort, or otherwise shall not exceed the amount of aggregate Commission paid to the Affiliate in the 06 (six) months preceding such claim.
8.2 The Company shall not, under any circumstances, be liable for any disruptions, unavailability, glitches, downtime or delays in functionality of its Channels, nor does the Company guarantee, represent or warrant in any way that the Channels shall function free of the same.
8.3 The Company shall not, under any circumstances, be liable to the Affiliate for any special, consequential, incidental, punitive, exemplary, or indirect costs or damages, including, but not limited to, litigation costs, installation and removal costs, or loss of data, production, profit, or business opportunities.
9. INTELLECTUAL PROPERTY RIGHTS
The Parties hereby agree, acknowledge and affirm that the Company and its licensors retain all right, title, and interest in and to all Intellectual Property Rights related in and to the Channels and the Advertising Materials. The logos and names are trademarks of the Company and are registered in certain jurisdictions. All other Product names, brand names, marks, logos, and symbols on the Channels may be the trademarks of their respective owners. Except as expressly stated in this Agreement, nothing in the Agreement confers any license or ownership to the Affiliate or any third party, under any of Company’s or any third party’s Intellectual Property Rights, whether by estoppel, implication, or otherwise.
The Affiliate shall indemnify, defend, and hold harmless Company, and its directors, officers, employees, representatives, and agents (each an “Indemnified Party”) from any and all claims, damages, liabilities, costs, losses, and expenses (including, but not limited to, reasonable attorneys’ fees and all related costs and expenses) arising from or relating to any claim, suit, proceeding, demand, or action brought by the Affiliate or any third party against an Indemnified Party relating to: (a) publishing and/or use of the Advertising Material in any unauthorized manner, or tampering them or any part thereof; (b) the Affiliate’s failure to comply with the Agreement; (c) Affiliate’s failure to comply with applicable law(s) and/or regulation(s); (d) Affiliate’s negligence, willful misconduct, or fraud; and (e) defamation, libel, violation of privacy rights, unfair competition, or infringement of Intellectual Property Rights or allegations thereof to the extent caused by the Affiliate.
11. TERM AND TERMINATION.
11.1 This Agreement shall come into full force and effect upon the Affiliate’s acceptance of this Agreement in the manner prescribed hereinabove, and shall continue to remain valid and in force, unless otherwise terminated in accordance with this Agreement (“Term”).
11.2 Upon the termination of this Agreement, a final accounting shall be made between the Parties. Company shall maintain an accurate set of books and records regarding Commissions due to Affiliate following the termination of this Agreement. Following termination, the Company shall be entitled to withhold Commissions accrued up to the effective date of termination for a reasonable period after said Commissions become due and payable, to ensure all corresponding Commission Exemptions have been accounted for prior to paying said Commission.
11.3 Upon termination of this Agreement, the Affiliate is entitled to Commissions on all orders solicited prior to the effective date of termination/expiration (which are not subsequently returned/refunded), regardless of when the Company accepts, invoices, or ships such orders. Affiliate shall return, within thirty (30) days of termination all Advertising Materials, as well as any other property of Company that the Affiliate is holding.
11.4 This Agreement may be terminated for the following reasons only:
11.4.1 In the event that either Party shall commit an act of bankruptcy or file a voluntary petition for bankruptcy, or be declared bankrupt in an involuntary proceeding, or file for a plan under any Bankruptcy Act, or place its affairs in the hand of a receiver, or enter into a composition for the benefit of creditors, or perform any other act based upon or due to its inadequate credit position, then the other part to the Agreement may terminate this Agreement immediately by written notice of termination to the other Party.
11.4.2 Save for the provisions under Clause 11.4.4 hereunder, should either Party be in material breach of its obligations and responsibilities under this Agreement, then the other Party may terminate this Agreement by giving 7 days advance written notice of termination to the other Party setting forth the material breach upon which the termination is based. However, after receiving such notice, the Party receiving same shall have 7 days to cure the alleged breach. If such breach is cured, then the termination notice shall stand withdrawn, and this Agreement shall continue in full force and effect.
11.4.3 By either Party, without cause, by serving the other Party a 15-day written notice of termination to the other Party specifying the effective date of such termination therein.
11.4.4 By Company, with immediate effect upon serving a written notice of termination to the Affiliate, in the event that the Merchant is found, in the absolute discretion and sole opinion of the Company, to have committed any fraudulent activity whatsoever, in pursuance of the Affiliate’s obligations under this Agreement.
11.4.5 By mutual agreement of the Parties in writing specifying the effective date of termination.
This Agreement shall not be assigned by the Affiliate, at any time or for any purpose whatsoever, without the Company’s express written consent to such assignment.
The waiver by either Party of a right, default, or breach of any provision of this Agreement by the other Party shall not operate or be construed as a waiver of any subsequent right, default, or breach.
Any modifications to this Agreement shall only be effective if (1) issued in a revised version by the Company in writing; or (2) if said modification is proposed by the Affiliate, then in a writing signed by both Parties.
15. FURTHER ACTIONS
Each Party shall, without further consideration, execute and deliver such additional documents and instruments and perform all such other and further actions as may be necessary or reasonably requested in order to carry out the purposes and intents of this Agreement.
6. APPLICABLE LAW
This Agreement and any question concerning its validity, construction or performance shall be governed by the laws of The People’s Republic of Bangladesh, irrespective of the place of execution, or the order in which the signatures of the Parties are affixed or the place or places of performance. The Parties agree that the courts, tribunals and/or quasi-judicial bodies located in Dhaka, Bangladesh shall have the exclusive jurisdiction on any dispute arising inside Bangladesh under thus Agreement.
The unenforceability (or the modification necessary to conform with such law and public policy) of any part of this Agreement shall not be deemed to render unenforceable any other part of this Agreement. If any part of this Agreement shall be decided to be invalid or unenforceable in any action or proceeding in which Affiliate or Company are parties, then such part shall be deemed deleted or amended, as the case may be, from the Agreement in order to render the remainder of this Agreement valid and enforceable. Any such deletion or amendment shall apply only where the court rendering the same has jurisdiction.
18. ENTIRE AGREEMENT.
This Agreement contains the entire understanding and Agreement of the Parties with respect to the subject matter hereof. There has been, is and will be, no representation, covenant, or undertaking other than those expressly set forth in this Agreement. Each Party hereby acknowledges and represents that in executing and entering into this Agreement, no other party nor any agent, attorney or other representative of any Party has made any promise, representation, warranty, covenant, warning or inducement whatsoever, express or implied, except as contained in this Agreement. Each Party acknowledges and represents that he has read and understands this Agreement, and each and every provision and term of this Agreement.
19. PARAGRAPH HEADINGS.
All headings set for in this Agreement are intended for convenience only and shall not control or affect the meaning, construction, or effect of this Agreement or of any of the provisions thereof.
20. DISPUTE RESOLUTION
The Parties agree that any disputes or questions arising hereunder including the construction or application of this Agreement shall first be attempted to be amicably settled by the senior management of the Parties within 15 (fifteen) days of one Party notifying the other Party of such dispute in writing. If the Parties cannot reach an amicable settlement of such dispute within 15 days, then the matter shall be referred to mandatory and binding arbitration in accordance with the Rules of Arbitration of the Bangladesh International Arbitration Centre (“BIAC”) by one or more arbitrators appointed in accordance with the said Rules. The seat of arbitration shall be Dhaka and the arbitrations shall be conducted in the English Language. The decision of the arbitrator shall be final and binding upon the Parties both as to law and to fact and shall not be appealable to any court in any jurisdiction. The Parties shall share the expenses of the arbitration equally, unless the arbitrator determines that the expenses shall be otherwise assessed.
21. ATTORNEY’S FEES.
If suit or action is instituted in connection with any controversy arising out of this Agreement or an enforcement of any right hereunder, the prevailing Party shall be entitled to recover, in addition to costs, such sums as the court may adjudge reasonable as attorney’s fees, including fees on any appeal.
Any notice to be given or served upon any Party to this Agreement must be in writing and shall be deemed to have been given (i) upon receipt in the event of personal service by actual delivery (including by telecopy or delivery service); (ii) upon posting if deposited in the local post office with proper postage and dispatched by certified mail; or (iii) upon receipt if notice is given otherwise than by personal service or by certified mail. Notices may also be transmitted by facsimile or electronic mail, provided that proper arrangements are made in advance to facilitate such communications and provide for their security and verification.
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