Basics of Agreement
The Licensee, under a *DLA, operates a Fulfillment Center and is duly licensed to use the **DN Service and to authorize Affiliates to use it to create websites and online stores. Only people aged 18 who are legally able to enter into contracts can become an affiliate. By entering into this agreement, the Affiliate becomes entitled to use The Licensee's services to create and operate a complete website that includes an online store (Affiliate Store) from which Consumers may order goods and services to be supplied through the Licensee's Fulfillment Center.
This agreement is made on-line on the Date of Acceptance BETWEEN the Licensee described in the Licensee's Website (or in the website of another affiliate of the Licensee) AND the Affiliate described in the completed 'Details of Affiliate' he/she has supplied before clicking the 'continue' button.
-- In this agreement --
Affiliate's PayPal Account means the PayPal account referred to in clause 3.2.
Affiliate's Store means the website of the Affiliate at his Website URL within the Service which conducts business under this agreement.
Consumer means a person who purchases any item using The Service from the Affiliate's Store.
Date of Acceptance means the day that the Affiliate checked the 'Continue' button.
Fulfillment Center is the process whereby the Licensee fulfils his obligations to send a Consumer an item or product that the person has ordered, purchased, or requested through the Licensee's website or an Affiliate's Store.
Licensee means the Licensee described in the Licensee's Website who is the holder of a license to use the **DN service from **DN.
Licensee's Website means the website from which the Fulfillment Center is conducted.
Intellectual property rights mean all industrial, commercial and intellectual property rights (including equivalent, neighboring or proximate rights anywhere in the world that currently exist or are recognized in the future).
Order means a valid purchase order submitted by a consumer via the Affiliate's Store to the Fulfillment Center.
Party means a party to this agreement.
The Service means that part of the **DN service that the Licensee authorizes the Affiliate to use which is limited to the selling of products available from the Fulfillment Center and includes upgrades and developments of the existing and new Services to be released from time to time but excludes any file hosting services.
The Term means the term of this agreement.
User Agreement means the User Agreement that is published on the Affiliate's website.
Website URL means the URL within the Service allocated for the use of the Affiliate at which the Affiliate's Store is conducted.
Where the context permits, references to a person include any legal entity, references to one gender include both genders and references to the singular include the plural.
3. Formation of Agreement by acceptance of Offer
3.2 To receive commissions or mark-ups, the affiliate must provide the particulars of a Paypal account to which the Licensee may make payments becoming due to him.
3.3 The Licensee may in his absolute discretion refuse to enter into the agreement without assigning any reason.
5. Restrictions on and Conditions of use of The Service
5.1 Only goods and services provided for sale by the Fulfillment Center may be offered for sale at The Affiliates Store.
5.2 The Website URL may not be used by the Affiliate or any person through him as a file hosting service for any files.
5.3 The Affiliate acknowledges that the Licensee and **DN provide The Service on an 'as is' and 'as available' basis. Nothing in this Agreement shall nor may be construed as a representation or warranty by the Licensee or **DN that the functionality or operation of The Service will be uninterrupted or free of errors and inaccuracies, meet the Affiliate's or Consumer's requirements or expectations or operate in the configuration or with the hardware or software used by an Affiliate or a Consumer.
5.5 The Affiliate acknowledges and agrees that The Service (as with technology generally) may have errors (or 'bugs') and may encounter unexpected problems. Accordingly, the Affiliate may experience downtime and errors in the use or operation of The Service. The Affiliate is expected to put in place (and shall advise his Consumers to put in place) reasonable procedures and processes to minimize any inconvenience and any adverse impact of any such downtime or error.
5.6 Neither the Licensee, nor **DN control the flow of data and information through the internet, and the flow depends on the performance of persons and entities whose actions or inactions may produce situations in which connections to the internet (or portions thereof) are impaired or disrupted and for which neither **DN nor the Licensee can be held responsible or liable.
5.7 **DN does not warrant that any media, data, information or other content provided at **DN whether concerning The Service or any other subject is complete or accurate.
5.7 **DN does not warrant that any media, data, information or other content provided at **DN whether concerning The Service or any other subject is complete or accurate.
5.8 In order to ensure that **DN and the Licensee are able to deliver the Service, the Affiliate grants them and each of them access to the management of the Website URL at any time for the purposes only of ensuring full operation of The Service and compliance with the terms of this Agreement.
7. Intellectual Property Rights
7.1 Ownership of all Intellectual Property Rights in The Service (whether or not incorporated within it) remain with the present owners and do not become the property of the Affiliate nor any person claiming through him. This Agreement does not grant any other right title or interest in or to any property rights of the owners other than the authorization contained herein.
7.2 Ownership of all Intellectual Property Rights used in connection with the exercise of his rights under this agreement and operation of his business remain with the Affiliate.
7.3 No new Intellectual Property Rights will be deemed to have been created by using The Service.
9. Payment of the Affiliate for Orders
9.1 The Affiliate must provide details of the Affiliate's Paypal Account to the Licensee not later than 7 days of the first Order being processed and delivered to the Consumer by the Licensee to qualify for payment of sale commissions and Affiliate's mark-up for goods in that Order. Commissions and mark up entitlements otherwise due to the Affiliate will lapse after 60 days of their becoming due if details of the Affiliate's Paypal Account are not provided
9.2 Within seven days of the end of each month that any delivery to a Customer is made to fulfill an Order, the Licensee must pay to the credit of the Affiliate's Paypal Account the amounts received by him for Orders from Consumers in that month in excess of the charges (and any taxes) listed and payable for the items in that Order on the Licensee's Website (Fulfillment Center).
9.3 The Licensee must provide The Affiliate with access within The Service to an Account showing details of all Orders and transactions through the Affiliate's Store and monies due to and paid to the Affiliate in respect of all Orders.
9.4 Payments made to the Affiliate's Paypal Account will be in the same currency as they were received from Consumers but if the Affiliate notifies the Licensee he wants payments made to him in another currency the Licensee will pay the exchange equivalent in that currency as the currency of the Consumers' payment for an Order. The Licensee will make all payments at the most favorable rate available to the Licensee at the time of payment to the Affiliate. All transaction and banking costs will be deducted from the payment.
9.5 Any taxes payable in respect of an Order must be paid by a Consumer and if not included in the payment for an Order, the Licensee shall not be liable to fulfill the Order but must refund any payment to the consumer. The Licensee will be responsible for payment to the appropriate authority of all taxes received as part of any payment in respect of an Order.
12. Exclusion of Liability
In no event shall the Licensee or **DN be liable to the Affiliate, a Consumer nor to any person claiming through them in connection with this Agreement, including in respect of the use of (or failure or performance of) The Service and/or in respect any goods and/or services, for malfunctions, failures, defects, acts or omissions or any other default or liability caused directly or indirectly by-Any third party; Actions of the Affiliate or Consumers that were not expressly authorized by the Licensee; Accident, misuse or abuse by anyone other than the Licensee or **DN; Alteration or modification of The Service, or any component or part of The Service, by anyone other than the Licensee or **DN; Products (including any hardware or software) or services not licensed, provided or supplied by **DN; Power surge or failure; Events of force majeure or events outside the actual control of the Licensee or **DN; or Any other condition not arising under normal operating conditions; for Any loss, cost, damage or expense of any nature arising or caused, directly or indirectly, by any breach of the Affiliate's or Customer's obligations or responsibilities set out in this or any other collateral Agreement; Any loss of profit, business interruption, loss of or damage to goodwill, and/or any expectation benefit; or Incidental, indirect, consequential, special, exemplary or punitive damages, whether such liability is asserted on the basis of common or civil law or in equity, pursuant to any statute, contract, or in tort (including negligence or strict liability) or otherwise and notwithstanding that the Licensee or **DN has been advised of the possibility of any particular loss or damage.
14. Assignment and Novation
The benefit of this Agreement shall not be assigned nor novated by the Affiliate without the written consent of the Licensee which may, if granted, be subject to such conditions as it chooses to impose.
4. Access to Licensees Service and Authorization
4.1 Immediately after the formation of this agreement the Licensee shall give the Affiliate working access to The Service and thereafter the Affiliate shall be authorized to use the Service in accordance with the provisions of this agreement.
4.2 The Affiliate will receive a confirmation email from The Service confirming his Website URL, username and password.
4.3 The Affiliate may then access The Service management console at The Website URL, by entering his user name and password.
4.4 The Affiliate must use the dashboard to set up his Affiliate's Store and then advertise and promote the Affiliate's Store to attract Consumers to purchase goods and services available from The Fulfillment Center. The logos **DN must appear on the Affiliates Store in proximity to the words 'Powered by **DN' in the form provided to the Affiliate by the Licensee, **DN. The copyright in the logos which are registered trademarks remains with the owners.
4.5 All Orders placed by Consumers on the Affiliate's Store will be processed and delivered to the Customer direct by the Fulfillment Center.
6. Term and termination of this agreement
6.1 Subject to Clause 11.2 The Term of this Agreement shall continue for so long as the Licensee is licensed by **DN to use the full **DN service or until terminated in accordance with this clause 6. The Licensee shall advise the Affiliate immediately he ceases to be so licensed but no compensation or damages for any loss shall be payable to the Affiliate by the Licensee or **DN but they will endeavor to introduce the Affiliate to another licensee of The Service.
6.2 This Agreement may be terminated by either party giving 10 days written notice to the other.
6.3 The parties agree that the Licensee may in his absolute discretion terminate this Agreement immediately if the Affiliate permits the Affiliate's Store to be closed for any reason; is in breach of any term of this Agreement and such breach, being capable of remedying is not remedied within 1 day of being notified thereof by the Licensee; becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration; being a partnership, dissolves, threatens or resolves to dissolve or is in jeopardy of dissolving; being a natural person, dies; or ceases or threatens to cease conducting business in the normal manner; conducts no business through the Affiliate's Store for 12 months and/or permits or causes any action, statement, publication or event that denigrates the quality of The Service.
6.4 If this agreement is terminated for any reason the Licensee shall disconnect the Affiliate from and deny him access to The Service and may in addition require return of and repossess any copies of **DN or the Licensee's marketing material in the possession, custody or control of the Affiliate; be regarded as discharged from any further obligations under this Agreement or to the Licensee; and pursue any additional or alternative remedies provided by law, but the Licensee must immediately pay to the Affiliate all monies due under this agreement.
8.1 An Affiliate shall not, without the prior written approval of the other Party, disclose the other Party's Confidential Information.
8.2 A Party shall not be in breach of this clause in circumstances where it is legally compelled to disclose the other Party's Confidential Information.
8.3 Each Party shall take all reasonable steps to ensure that its employees and agents and any sub-contractors engaged for the purposes of this Agreement do not make public the other Party's Confidential Information.
10. Affiliate's Obligations
Throughout the term the Affiliate shall at his own cost be responsible for all telecommunication lines, modems, communication controllers, routers, multiplex service terminals and other equipment both hardware and software necessary to access and use The Service; promotion and advertising of the Affiliate's Store; maintaining email and telephone details on the Website URL and attending to inquiries by Consumers and assisting them to gain satisfaction of their orders; providing local support to his Consumers providing the licensee with full details of mark-ups he charges on items the subject of orders conducting his Affiliate Store and/or running expenses associated with his business complying with all laws and regulations and rules in the Affiliate's jurisdiction maintaining adequate insurance ( including product liability insurance) in respect to any liability he might incur in connection with the operation of the Affiliate's Store and the exercise of rights under this Sub-license complying with recommendations and guidelines issued by the Licensee or **DN with respect to The Service.
11. Restrictions on Affiliate in using the Service
11.1 Throughout the Term the Affiliate shall not and shall not permit, assist nor procure others to Use The Service for any illegal or improper purpose or use or attempt to use it in a manner that infringes the property rights of the owners Bring The Service into disrepute or abuse the privileges of the Licensee Overload The Service nor copy pages there to, impersonate another person nor interfere with any other person’s access and rights to use The Service. Access nor use nor permit the use of The Service to create author or, design, manufacture, publish or transmit, nor broadcast nor distribute any article or product that infringes the rights of any person including intellectual property rights and copyrights or is libelous defamatory or slanderous Condone or promote links to adware, cracks, hacks or long similar utilities or programs Permit the design, manufacture, publishing or transmitting of any material with racist, pornographic, sacrilegious, sexist or other offensive content or which may threaten or denigrate any person or class of persons or exploits images of minors or encourages the use of illegal drugs or is in bad taste, Use spam nor use cause viruses, routines, robots, spiders or other processes or devices that interfere with or disrupt the normal function of computer programs.
11.2 Any breach of this clause or suspected wrongful interference with the operation of The Service by the Affiliate or any Consumer entitles the Licensee to terminate this agreement forthwith or to suspend its operation pending further inquiries without incurring any liability to the Affiliate or any person claiming through him.
13.1 The Affiliate shall indemnify and hereby releases unconditionally the Licensee and **DN without set-off or adjustment, against and from any liability, loss, cost, expense or damage, including all legal fees, arising from or relating to his and his Consumers use of The Service and/or the media or content posted or uploaded by him including any alleged or actual violation of any law directly or indirectly arising from such use; Any breach or alleged breach by it of this Agreement; The misuse or misappropriation of any media or content; and Any infringement or alleged infringement by the Affiliate of any person's Intellectual Property Rights, rights of privacy or publication, or otherwise anywhere in the world.
13.2 Without limiting clause 13.1, because the Licensee and **DN do not and cannot control his actions, in the event that the Affiliate has a dispute with a Consumer, the Affiliate shall indemnify and hereby releases unconditionally the Licensee and **DN, without set off or adjustment, against and from any liability, loss, cost, expense or damage, including all legal fees, arising from or relating to, or in any way connected with, such dispute.
15. Disputes and Governing Law
15.1 The parties agree that any dispute that arises between them concerning this agreement must firstly be attempted to be resolved by negotiation between the Parties or their representatives and if they cannot reach a settlement it shall be submitted to arbitration in accordance with the rules for Conduct of Commercial Arbitrations for the time being of the legal jurisdiction where The Licensee is located. During such arbitration, both Parties may be legally represented.
15.2 Nothing in this clause shall prevent a Party from seeking urgent relief before an appropriate court.
15.3 This agreement shall be construed and enforced in accordance with the laws of the jurisdiction where the Licensee is located.
16.1 Notices required to be given under this Agreement may be delivered by email to the Party for whom they are intended at their last known address.
16.2 Notices will be deemed to be received if no bounce record is received by the sender within 24 hours.