Terms of Service

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.

1. DEFINITIONS
   1. Parties. “You” and “your” refer to you, as a user of the Service. A “user” is someone who accesses or in any way uses the Service. “We,” “us,” and “our” refer to D-list and its subsidiaries.
   2. Content. “Content” means text, images, photos, audio, video, and all other forms of data or communication. “Your Content” means Content that you submit or transmit to, through, or in connection with the Service, such as ratings, reviews, photos, videos, compliments, invitations, check-ins, votes, friending and following activity, direct messages, and information that you contribute to your user profile or suggest for a business page. “User Content” means Content that users submit or transmit to, through, or in connection with the Service. “D-list Content” means Content that we create and make available in connection with the Service. “Third Party Content” means Content that originates from parties other than D-list or its users, which is made available in connection with the Service. “Service Content” means all of the Content that is made available in connection with the Service, including Your Content, User Content, D-list Content, and Third Party Content.
   3.   Sites and Accounts. “Consumer Site” means D-list’s consumer website (www.d-list.net and related domains) and mobile applications. “Consumer Account” means the account you create to access or use the Consumer Site. “Business Account” means the account you create to access or use the D-list for Business Owners website (biz.d-list.net and related domains) and mobile applications. “Account” means any Consumer Account or Business Account.
2. CHANGES TO THE TERMS
   We may modify the Terms from time to time. The most current version of the Terms will be located here. You understand and agree that your access to or use of the Service is governed by the Terms effective at the time of your access to or use of the Service. If we make material changes to these Terms, we will notify you by email, by posting notice on the Service, and/or by other method prior to the effective date of the changes. We will also indicate at the top of this page the date that such changes were last made. You should revisit these Terms on a regular basis as revised versions will be binding on you. You understand and agree that your continued access to or use of the Service after the effective date of changes to the Terms represents your acceptance of such changes.
3. TRANSLATION
   We may translate these Terms into other languages for your convenience. Nevertheless, the English version governs your relationship with D-list, and any inconsistencies among the different versions will be resolved in favor of the English version available here.
4. USING THE SERVICE
   1. Eligibility. To access or use the Service, you must have the requisite power and authority to enter into these Terms. You may not access or use the Service if you are a competitor of D-list or if we have previously banned you from the Service or closed your Account.
   2. Permission to Use the Service. We grant you permission to use the Service subject to these Terms. Your use of the Service is at your own risk, including the risk that you might be exposed to Content that is offensive, indecent, inaccurate, objectionable, incomplete, fails to provide adequate warning about potential risks or hazards, or is otherwise inappropriate.
   3. Service Availability. The Service may be modified, updated, interrupted, suspended or discontinued at any time without notice or liability.
   4. Accounts. You must create an Account and provide certain information about yourself in order to use some of the features that are offered through the Service. You are responsible for maintaining the confidentiality of your Account password. You are also responsible for all activities that occur in connection with your Account. You agree to notify us immediately of any unauthorized use of your Account. We reserve the right to close your Account at any time for any or no reason.Your Consumer Account is for your personal, non-commercial use only, and you may not create or use a Consumer Account for anyone other than yourself. We ask that you provide complete and accurate information about yourself when creating an Account in order to bolster your credibility as a contributor to the Service. You may not impersonate someone else, provide an email address other than your own, create multiple Accounts, or transfer your Consumer Account to another person without D-list’s prior approval.
   5. Communications from D-list and Others. By accessing or using the Service, you consent to receive communications from other users and D-list through the Service, or through any other means such as emails, push notifications, text messages (including SMS and MMS), and phone calls. These communications may promote D-list or businesses listed on D-list, and may be initiated by D-list, businesses listed on D-list, or other users. You further understand that communications may be sent using an automatic telephone dialing system, and that you may be charged by your phone carrier for certain communications such as SMS messages or phone calls. You agree to notify us immediately if the phone number(s) you have provided to us have been changed or disconnected. Please note that any communications, including phone calls, with D-list or made through the Service may be monitored and recorded for quality purposes.You can opt-out of certain communications here.
5. CONTENT
   1. Responsibility for Your Content. You alone are responsible for Your Content, and once posted to D-list, it cannot always be withdrawn. You assume all risks associated with Your Content, including anyone’s reliance on its quality, accuracy, or reliability, and any risks associated with personal information you disclose. You represent that you own or have the necessary permissions to use and authorize the use of Your Content as described herein. You may not imply that Your Content is in any way sponsored or endorsed by D-list.You may expose yourself to liability if, for example, Your Content contains material that is false, intentionally misleading, or defamatory; violates any third-party right, including any copyright, trademark, service mark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; contains material that is unlawful, including illegal hate speech or pornography; exploits or otherwise harms minors; violates or advocates the violation of any law or regulation; or violates these Terms.
   2. Our Right to Use Your Content. We may use Your Content in a number of different ways, including by publicly displaying it, reformatting it, incorporating it into advertisements and other works, creating derivative works from it, promoting it, distributing it, and allowing others to do the same in connection with their own websites and media platforms (“Other Media”). As such, you hereby irrevocably grant us world-wide, perpetual, non-exclusive, royalty-free, assignable, sublicensable, transferable rights to use Your Content for any purpose. Please note that you also irrevocably grant the users of the Service and any Other Media the right to access Your Content in connection with their use of the Service and any Other Media. Finally, you irrevocably waive, and cause to be waived, against D-list and its users any claims and assertions of moral rights or attribution with respect to Your Content. By “use” we mean use, copy, publicly perform and display, reproduce, distribute, modify, translate, remove, analyze, commercialize, and prepare derivative works of Your Content.
   3. Ownership. As between you and D-list, you own Your Content. We own the D-list Content, including but not limited to visual interfaces, interactive features, graphics, design, compilation (including, but not limited to, our selection, coordination, aggregation, and arrangement of User Content and other Service Content), computer code, products, software, aggregate star ratings, and all other elements and components of the Service excluding Your Content, User Content and Third Party Content. We also own the copyrights, trademarks, service marks, trade names, trade secrets, and other intellectual and proprietary rights throughout the world associated with the D-list Content and the Service, which are protected by copyright, trade dress, patent, trademark, and trade secret laws and all other applicable intellectual and proprietary rights and laws. As such, you may not sell, license, copy, publish, modify, reproduce, distribute, create derivative works or adaptations of, publicly display or in any way use or exploit any of the D-list Content in whole or in part except as expressly authorized by us. Except as expressly and unambiguously provided herein, we do not grant you any express or implied rights, and all rights in and to the Service and the D-list Content are retained by us.
   4. Advertising. D-list and its licensees may publicly display advertisements, paid content, and other information nearby or in association with Your Content. You are not entitled to any compensation for such advertisements. The manner, mode and extent of such advertising are subject to change without specific notice to you.
   5. Other. User Content (including any that may have been created by users employed or contracted by D-list) does not necessarily reflect the opinion of D-list. Except as required by law, we have no obligation to retain or provide you with copies of Your Content, and we do not guarantee any confidentiality with respect to Your Content. We reserve the right to remove, screen, edit, or reinstate User Content at our sole discretion for any reason or no reason, and without notice to you. For example, we may remove a review if we believe it violates our Content Guidelines. Except in accordance with D-list’s Verified License program, D-list does not attempt to verify any licenses a local business or its representatives may have, and consumers should inquire about any such licenses with the business directly. Businesses whose licenses have been verified by D-list will have a “Verified License” badge displayed on their D-list business page.
6. BOOKING AND TRANSACTING
   1. Generally. You can access features through the Service that allow you to book or transact online with local businesses, such as making restaurant or spa reservations, ordering food delivery, or scheduling appointments. These features may be provided by D-list’s third-party partners, including through i frames or similar formats, and their use may be governed by different or additional terms presented to you as part of the booking or transaction process. Please note that such third-party partners and/or the transacting local businesses themselves are responsible for fulfilling such bookings and transactions.
   2. Payments and Cancellations. You may be required to provide your credit card information to confirm a booking, and will be charged any applicable fees, including cancellation or no-show fees in accordance with the transacting local business’s cancellation policy provided at the time of booking. You agree that D-list may facilitate any such payments and charges on behalf of the transacting local business.
   3. Coupons. Any coupons that D-list might issue for use in connection with the Service are non-transferable (unless required by law), not redeemable for cash or any other consideration, and automatically expire thirty (30) days after the issue date unless otherwise specified. If your Account is terminated you will not be able to use any unexpired and unused coupons, and any such coupons will automatically terminate and cannot be redeemed unless required by law.
7. REPRESENTATIONS AND WARRANTIES
   We are under no obligation to enforce the Terms on your behalf against another user. While we encourage you to let us know if you believe another user has violated the Terms, we reserve the right to investigate and take appropriate action at our sole discretion.
   1. You represent and warrant that:
      1. You have read and understood our Content Guidelines;
      2. You have read and understood our Privacy Policy. If you use the Service outside of the Bangladesh, you consent to having your personal data transferred to and processed in the Bangladesh; and
      3. Prior to attending any event listed on the Service, you have read and agree to our Event Terms and Conditions.
   2. You also represent and warrant that you will not, and will not assist, encourage, or enable others to use the Service to:
      1. Violate our Terms, including the Content Guidelines and Event Terms and Conditions;
      2. Post any fake or defamatory review, trade reviews with others, or compensate someone or be compensated to post, refrain from posting, or remove a review;
      3. Violate any third party’s rights, including any breach of confidence, copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right;
      4. Threaten, stalk, harm, or harass others, or promote bigotry or discrimination;
      5. Promote a business or other commercial venture or event, or otherwise use the Service for commercial purposes, except in connection with a Business Account in accordance with the Business Terms;
      6. Send bulk emails, surveys, or other mass messaging, whether commercial in nature or not; engage in keyword spamming, or otherwise attempt to manipulate the Service’s search results, review Recommendation Software (as defined in the Business Terms below), or any third party website;
      7. Solicit personal information from minors, or submit or transmit pornography;
      8. Violate any applicable law;
      9. Modify, adapt, appropriate, reproduce, distribute, translate, create derivative works or adaptations of, publicly display, sell, trade, or in any way exploit the Service or Service Content (other than Your Content), except as expressly authorized by D-list;
      10. Use any robot, spider, Service search/retrieval application, or other automated device, process or means to access, retrieve, copy, scrape, or index any portion of the Service or any Service Content, except as expressly permitted by D-list (for example, as described at www.d-list.net/robots.txt);
      11. Reverse engineer any portion of the Service, unless applicable law prohibits this restriction, in which case you agree to provide us with  30 days’ prior written notice here;
      12. Remove or modify any copyright, trademark, or other proprietary rights notice that appears on any portion of the Service or on any materials printed or copied from the Service;
      13. Record, process, or mine information about users;
      14. Access, retrieve or index any portion of the Service for purposes of constructing or populating a searchable database of business reviews;
      15. Reformat or frame any portion of the Service;
      16. Take any action that imposes, or may impose, in our sole discretion, an unreasonable or disproportionately large load on D-list’s technology infrastructure or otherwise make excessive traffic demands of the Service;
      17. Attempt to gain unauthorized access to the Service, Accounts, computer systems or networks connected to the Service through hacking, password mining or any other means;
      18. Use the Service or any Service Content to transmit any computer viruses, worms, defects, Trojan horses, malicious code, spyware, malware or other items of a destructive or harmful nature;
      19. Use any device, software or routine that interferes with the proper working of the Service, or otherwise attempt to interfere with the proper working of the Service;
      20. Use the Service to violate the security of any computer network, crack passwords or security encryption codes; disrupt or interfere with the security of, or otherwise cause harm to, the Service or Service Content; or
      21. Remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Service, features that prevent or restrict the use or copying of Service Content, or features that enforce limitations on the use of the Service.
8. ADDITIONAL POLICIES AND TERMS 
   1. Copyright and Trademark Disputes. You agree to follow our Infringement Policy in notifying us about copyright and trademark disputes concerning User Content. You agree we may forward any notification sent pursuant to our Infringement Policy to the user who submitted the User Content at issue.
   2. Additional Terms. Your use of the Service is subject to any and all additional terms, policies, rules, or guidelines that we may post on or link to from the Service (the “Additional Terms”). All such Additional Terms are hereby incorporated by reference into, and made a part of, these Terms. If you have a Business Account, the Business Terms provided below apply to you.
9. SUGGESTIONS AND IMPROVEMENTS
   By sending us any ideas, suggestions, documents or proposals (“Feedback”), you agree that (i) your Feedback does not contain any third party confidential or proprietary information, (ii) we are under no obligation of confidentiality, express or implied, with respect to the Feedback, (iii) we may have something similar to the Feedback already under consideration or in development, (iv) we have no obligation to review, consider, or implement the Feedback, or to return to you all or part of the Feedback, and (v) you grant us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide, assignable, sublicensable, transferable license to use, modify, prepare derivative works of, publish, distribute and sublicense the Feedback, and you irrevocably waive, and cause to be waived, against D-list and its users any claims and assertions of any moral rights contained in such Feedback.
10. THIRD PARTY CONTENT AND SERVICES
    1. The Service may host Third Party Content, or include links to other websites or applications (each, a “Third Party Service”). We do not control or endorse any Third Party Content or Third Party Service. You agree that we are not responsible for the availability, accuracy, or content of any such Third Party Content or Third Party Service. Your use of and reliance on any Third Party Content or Third Party Service is at your own risk.Some of the services made available through the Service and Third Party Services may be subject to additional third party terms of service, privacy policies, licensing terms and disclosures, and other terms, conditions, and policies, including without limitation the ones posted here. It is your responsibility to familiarize yourself with any such applicable third party terms.
11. INDEMNITY
    You agree to indemnify, defend, and hold harmless D-list, its parents, subsidiaries, affiliates, any related companies, suppliers, licensors and partners, and the officers, directors, employees, agents, contractors and representatives of each of them (collectively, the “Yelp Entities”) from  and against any and all third party claims, actions, demands, losses, damages, costs, liabilities and expenses (including but not limited to attorneys’ fees and court costs)  arising out of or relating to: (i) your access to or use of the Service, including Your Content, (ii) your violation of the Terms, (iii) your breach of your representations and warranties provided under these Terms, (iv) any products or services purchased or obtained by you in connection with the Service, (v) your products or services, or the marketing or provision thereof to end users, or (vi) the infringement by you, or any third party using your Account, of any intellectual property or other right of any person or entity. D-list reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any such matter without the prior written consent of D-list. D-list will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
12. DISCLAIMERS AND LIMITATIONS OF LIABILITY
    PLEASE READ THIS SECTION CAREFULLY SINCE IT LIMITS THE LIABILITY OF THE D-list ENTITIES TO YOU. EACH OF THE SUBSECTIONS BELOW ONLY APPLIES UP TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW. NOTHING HEREIN IS INTENDED TO LIMIT ANY RIGHTS YOU MAY HAVE WHICH MAY NOT BE LAWFULLY LIMITED. BY ACCESSING OR USING THE SERVICE, YOU REPRESENT THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO THESE TERMS, INCLUDING THIS SECTION. YOU ARE GIVING UP SUBSTANTIAL LEGAL RIGHTS BY AGREEING TO THESE TERMS.
    1. THE SERVICE AND SERVICE CONTENT ARE MADE AVAILABLE TO YOU ON AN “AS IS”, “WITH ALL FAULTS” AND “AS AVAILABLE” BASIS, WITH THE EXPRESS UNDERSTANDING THAT THE D-list ENTITIES MAY NOT MONITOR, CONTROL, OR VET USER CONTENT OR THIRD PARTY CONTENT. AS SUCH, YOUR USE OF THE SERVICE IS AT YOUR OWN DISCRETION AND RISK. THE D-list ENTITIES MAKE NO CLAIMS OR PROMISES ABOUT THE QUALITY, COMPLETENESS, ACCURACY, OR RELIABILITY OF THE SERVICE, ITS SAFETY OR SECURITY, INCLUDING WITHOUT LIMITATION THE SECURITY OF YOUR DATA, OR THE SERVICE CONTENT. ACCORDINGLY, THE D-list ENTITIES ARE NOT LIABLE TO YOU FOR ANY PERSONAL INJURY, LOSS OR DAMAGE THAT MIGHT ARISE, FOR EXAMPLE, FROM THE SERVICE’S INOPERABILITY, DEPLETION OF BATTERY POWER OR OTHER IMPAIRMENT OF DEVICES USED TO ACCESS THE SERVICE, SERVICE UNAVAILABILITY, SECURITY VULNERABILITIES OR FROM YOUR RELIANCE ON THE QUALITY, ACCURACY, OR RELIABILITY OF THE BUSINESS LISTINGS, RATINGS, REVIEWS (INCLUDING THEIR CONTENT OR OMISSION OF CONTENT, ORDER, AND DISPLAY), METRICS OR OTHER CONTENT FOUND ON, USED ON, OR MADE AVAILABLE THROUGH THE SERVICE.
    2. THE D-list ENTITIES MAKE NO CLAIMS OR PROMISES WITH RESPECT TO ANY THIRD PARTY, SUCH AS THE BUSINESSES OR ADVERTISERS LISTED ON THE SERVICE OR THAT OFFER GOODS OR SERVICES THROUGH THE SERVICE, OR THE SERVICE’S USERS. ACCORDINGLY, THE D-list ENTITIES ARE NOT LIABLE TO YOU FOR ANY PERSONAL INJURY, LOSS OR DAMAGE THAT MIGHT ARISE FROM ANY SUCH THIRD PARTY’S ACTIONS OR OMISSIONS, INCLUDING, FOR EXAMPLE, IF ANOTHER USER OR BUSINESS MISUSES YOUR CONTENT, IDENTITY OR PERSONAL INFORMATION, OR IF YOU HAVE A NEGATIVE EXPERIENCE WITH ONE OF THE BUSINESSES OR ADVERTISERS LISTED OR FEATURED ON THE SERVICE. YOUR PURCHASE AND USE OF PRODUCTS OR SERVICES OFFERED BY THIRD PARTIES THROUGH THE SERVICE IS AT YOUR OWN DISCRETION AND RISK.
    3. YOUR SOLE AND EXCLUSIVE RIGHT AND REMEDY IN CASE OF DISSATISFACTION WITH THE SERVICE, RELATED SERVICES, OR ANY OTHER GRIEVANCE SHALL BE YOUR TERMINATION AND DISCONTINUATION OF ACCESS TO, OR USE OF THE SERVICE.
    4. THE D-list ENTITIES’ MAXIMUM AGGREGATE LIABILITY TO YOU FOR LOSSES OR DAMAGES THAT YOU SUFFER IN CONNECTION WITH THE SERVICE OR THESE TERMS IS LIMITED TO THE GREATER OF (i) THE AMOUNT PAID, IF ANY, BY YOU TO THE D-list ENTITIES IN CONNECTION WITH THE SERVICE IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY, OR (ii) $100.
    5. THE D-list ENTITIES’ LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE D-list ENTITIES WILL NOT BE LIABLE FOR ANY (i) INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, RELIANCE, OR CONSEQUENTIAL DAMAGES, (ii) LOSS OF PROFITS OR REVENUE, (iii) BUSINESS INTERRUPTION, (iv) REPUTATIONAL HARM, (v) LOSS OF INFORMATION OR DATA; OR (vi) LIABILITY WITH RESPECT TO A CONSUMER ALERT POSTED ON ANY D-list BUSINESS PAGES FOR YOUR BUSINESS. THE WAIVERS AND LIMITATIONS SPECIFIED IN THIS SECTION 12 WILL SURVIVE AND APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.
       1. 1. “Excluded Claims” means: (a) Claims brought by you or D-list that could be brought in small claims court, if permitted by the rules of that court, or (b) Claims related to intellectual property (like copyrights and trademarks), violations of D-list’s API Terms of Use (which, for clarity, are governed by those terms), or a breach of Section 7 above (Representations and Warranties). Excluded Claims may be brought in court. Any issues relating to the scope and enforceability of the arbitration provision will be resolved by the arbitrator. If any Claim cannot be arbitrated in accordance with this provision, then only that Claim may be brought in court and all other Claims remain subject to arbitration. Notwithstanding this paragraph, Business Claims, as defined in Section 3 of the Additional Terms for Business Accounts, are governed by that section.
          2. Excluded Claims and Claims that cannot be arbitrated must be brought in court. California law will govern these Terms (to the extent not preempted or inconsistent with federal law), as well as any such Excluded Claim or Claim that cannot be arbitrated, without regard to conflict of law provisions. You or D-list may seek relief in any small claims court of competent jurisdiction. All other Excluded Claims and Claims that cannot be arbitrated are subject to the exclusive jurisdiction in, and the exclusive venue of, the state and federal courts located within Dhaka, and you consent to the personal jurisdiction of these courts for the purpose of litigating any such Claim.
          3. Arbitration shall be administered by the Bangladesh Arbitration Association (“BAA”) in accordance with its Consumer Arbitration Rules then in effect. For more information, visit www.adr.org. Arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator may award damages to you individually as a court could, including declaratory or injunctive relief, but only to the extent required to satisfy your individual claim.
          4. Unless the arbitrator finds the arbitration was frivolous or brought for an improper purpose, D-list will pay all filing, BAA, and arbitrator’s fees and expenses. We waiveany right to seek an award of attorneys’ fees and expenses in connection with any non-frivolous arbitration between you and us.
       2. If you are a resident of a country located in the AEA or Bangladesh, Bangladehi law will govern these Terms, as well as any dispute that might arise between you and D-list.
          1. You agree that any subpoena, third-party discovery request, or other third-party process directed to D-list must issue from, or be domesticated by, the state or federal courts located within Dhaka, and you agree to submit to the jurisdiction of each of these courts for any related proceedings.
13. TERMINATION
    1. You may terminate the Terms at any time by closing your Account, discontinuing any access to or use of the Service, and providing D-list with a notice of termination here.
    2. We may close your Account, suspend your ability to use certain portions of the Service, terminate any license or permission granted to you hereunder, and/or ban you altogether from the Service for any or no reason, and without notice or liability of any kind. Any such action could prevent you from accessing your Account, the Service, Your Content, Service Content, or any other related information.
    3. In the event of any termination of these Terms, whether by you or us, Sections 1, 3,  5, 7–15 of the Terms of Service will continue in full force and effect.
14. GENERAL TERMS
    1. We reserve the right to modify, update, or discontinue the Service at our sole discretion, at any time, for any or no reason, and without notice or liability.
    2. Except as otherwise stated in Section 10 above, nothing herein is intended, nor will be deemed, to confer rights or remedies upon any third party.
    3. The Terms contain the entire agreement between you and us regarding the use of the Service, and supersede any prior agreement between you and us on such subject matter. The parties acknowledge that no reliance is placed on any representation made but not expressly contained in these Terms.
    4. Any failure on D-list’s part to exercise or enforce any right or provision of the Terms does not constitute a waiver of such right or provision. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. The Terms may not be waived, except pursuant to a writing executed by D-list.
    5. If any provision of the Terms is found to be unenforceable or invalid by an arbitrator or court of competent jurisdiction, then only that provision shall be modified to reflect the parties’ intention or eliminated to the minimum extent necessary so that the Terms shall otherwise remain in full force and effect and enforceable.
    6. The Terms, and any rights or obligations hereunder, are not assignable, transferable or sublicensable by you except with D-list’s prior written consent, but may be assigned or transferred by us without restriction. Any attempted assignment by you shall violate these Terms and be void.
    7. You agree that no joint venture, partnership, employment, agency, special or fiduciary relationship exists between you and D-list as a result of these Terms or your use of the Service.
    8. The section titles in the Terms are for convenience only and have no legal or contractual effect.

Copyright © 2020 D-list Inc., Dhaka, BD.

Additional Terms for Business Accounts 

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.

1. REQUIREMENTS, REPRESENTATIONS AND WARRANTIES
   1. In order to access or use the Services, you agree that:
      1. you have the authority to act on behalf of the business or businesses associated with or claimed through your Business Account and bind any such business (including any corresponding business entity) to the Business Terms (such business or businesses, your “Business”);
      2. your access to or use of the Business Site will only be in your capacity as an authorized representative of your Business;
      3. you will not use the Consumer Site for business activities, including but not limited to flagging reviews or messaging people who have reviewed your Business;
      4. your Business complies with applicable laws and does not offer, advertise, sell, or lease illegal products and/or services;
      5. you grant D-list a non-transferable, non-exclusive, royalty-free limited license to display your public website on the Services, or allow for its display through iframes or other framing technology;
      6. you agree that we may contact you, including by phone or email, using the contact information you provide us, make publicly available, or that we have on record for your business, and that our communications (including phone calls) with you may be monitored and recorded for quality purposes;
      7. you understand that we may display health score information for your Business, and may place a Consumer Alert regarding that health score, on the business page for your Business;
      8. you understand and agree that we may share certain aggregate or otherwise deidentified information about your responses to Request a Quote leads with other Businesses, for example, the number of total Businesses responding to the lead and the speed of those responses; and
      9. you understand and acknowledge that non-disparagement clauses in certain consumer contracts, such as clauses that seek to restrict or prohibit reviews (including provisions that penalize consumers for posting reviews) about your Business, are prohibited under ICT law  and under the federal Consumer Review Fairness Act (2006) and you agree that you will not include such clauses in your consumer contracts, or otherwise attempt to enforce non-disparagement or ‘gag’ clauses against consumers under any circumstances. You understand that we may publicly notify consumers, including by placing a Consumer Alert on the business page for your Business, if we have a good faith belief that such clauses are used by your Business.
   2. You represent and warrant that you will not, and will not authorize or induce any other party, to:
      1. offer incentives of any kind, such as discounts, freebies, refunds, gift cards, contest entries, offers, or deals in exchange for the posting of reviews of your Business, or to prevent or remove reviews, and you understand and acknowledge that D-list, through its Consumer Alerts, may publicly notify consumers about such incentives and other attempts to obtain, prevent, or remove reviews;
      2. solicit or ask for reviews from your customers;
      3. write reviews or vote on Content (e.g., voting user reviews as useful, funny, or cool) for your Business or your Business’s competitors;
      4. pay or induce anyone to post, refrain from posting, or remove reviews, or otherwise attempt to circumvent D-list’s Recommendation Software (defined below) or fraud detection systems;
      5. attempt to generate automated, fraudulent, or otherwise invalid ad impressions, inquiries, conversions, ad clicks, or other actions;
      6. use any automated means or form of scraping or data extraction to access, query or otherwise collect D-list data, content and/or reviews from the Consumer Site or the Business Site, except as expressly permitted by D-list (for example, as described at www.d-list.net/robots.txt);
      7. use any D-list trademark or service mark in any manner without D-list’s prior written consent; or
      8. misrepresent your identity or affiliation to anyone in connection with D-list.
   3. You understand and acknowledge that D-list allows consumers to post Content about your Business, including photos, ratings, and reviews. You understand and acknowledge that D-list employs automated software in an effort to showcase the most reliable and useful reviews while displaying other reviews less prominently (“Recommendation Software”). You understand and acknowledge that while D-list uses its Recommendation Software to identify potentially less helpful reviews, the Recommendation Software may sometimes suppress legitimate reviews or fail to detect illegitimate reviews. You understand and acknowledge that any purchase of advertising or other paid features from D-list will not influence the Recommendation Software or otherwise allow or enable You, directly or indirectly, to alter reviews or impact whether, where, or how reviews appear on D-list.
2. Business Claims shall be heard by a single arbitrator. Arbitrations will be held in Dhaka, Bangladesh but the parties may choose for themselves whether to appear in person, by phone, or through the submission of documents. The arbitration shall be governed by the laws of the Bangladesh ICT  act. The prevailing party shall be entitled to an award of reasonable attorneys’ fees.NOTWITHSTANDING THE FOREGOING, FOR ANY BUSINESS CLAIM THAT IS NOT SUBJECT TO ARBITRATION, INCLUDING WITHOUT LIMITATION EXCLUDED BUSINESS CLAIMS, YOU AGREE TO SUBMIT AND CONSENT TO THE PERSONAL AND EXCLUSIVE JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE STATE AND FEDERAL COURTS LOCATED WITHIN DHAKA, BANGLADESH, WHICH IS THE PLACE OF PERFORMANCE OF THESE BUSINESS TERMS.YOU AND D-list AGREE THAT EACH MAY BRING OR PARTICIPATE IN BUSINESS CLAIMS AGAINST THE OTHER ONLY IN THEIR RESPECTIVE INDIVIDUAL CAPACITIES, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. UNLESS BOTH YOU AND D-list AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN THE BUSINESS CLAIMS OF OTHER PERSONS OR PARTIES WHO MAY BE SIMILARLY SITUATED, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING. IF A BUSINESS CLAIM IMPLICATES THIS SECTION, AND THIS SECTION IS FOUND TO BE INVALID, UNENFORCEABLE OR ILLEGAL BY A COURT, SUCH BUSINESS CLAIM MUST BE ADJUDICATED BY A COURT AND NOT BY AN ARBITRATOR.

Affiliate Agreement

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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. DEFINITIONS

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. APPOINTMENT

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. COMPENSATION

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.

10. INDEMNIFICATION.

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.

12. ASSIGNMENT

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.

13. WAIVER

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.

14. MODIFICATIONS

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.
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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.

17. SEVERABILITY.

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.

22. NOTICES.

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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