DEED OF AGREEMENT
The following AGREEMENT sets the agreed terms and conditions regarding the sale of’ABCproducts through the web platform apcombd.com.This AGREEMENT is made and executed in Dhaka on 10/10/2016 of the year Two Thousand Sixteen of the Christian era.
ABC,incorporated under the Companies Act 1994, having its registered office atHouse # , Flat # , Road#, Dhaka-,hereinafter referred to as the “THE FIRST PARTY ” (which expression, where the context so admits, shall mean and include the Company’s shareholders, Board of Directors, administrators, executors, authorized representatives and assigns) on the ONE PART.
Company Name ....... , a private limited company incorporated in Bangladesh under the respective Companies Act; having office at Address ...... , Bangladesh, hereinafter referred to as the “THE SECOND PARTY” (which expression, where the context so admits, shall mean and include the Company’s shareholders, Board of Directors, administrators, executors, authorized representatives and assigns) on the OTHER PART.
(Each party shall be individually referred to as “Party” and collectively as “Parties”)
Terms and Conditions
(1) THE SECOND PARTY owns and operates a platform that allows vendors to sell their products to the public over the internet. This platform is provided on the website www.apcombd.com. (Hereinafter referred to as "Website") and on “Mobile application” (hereinafter referred to as "M-apps"),
(2) THE FIRST PARTY shall have the opportunity to sell its products on THE SECOND PARTY’s platform. THE SECOND PARTY is entitled to accept purchases on behalf of THE FIRST PARTY. The service provided by THE SECOND PARTY is limited to referring customers to THE FIRST PARTY and accepting orders and payments on their behalf. At THE SECOND PARTY’s discretion, THE SECOND PARTY may provide THE FIRST PARTY with analytics about the performance of THE FIRST PARTY’s products.
(3) THE FIRST PARTY shall receive information about sales and confirm availability of the products/merchandise of the First Party through the online platform provided by THE SECOND PARTY to THE FIRST PARTY.
(4) THE FIRST PARTY authorizes THE SECOND PARTY to accept binding orders from visitors/customers of the Website on their behalf.
(5) THE SECOND PARTY may carry out changes to the Website or service, or suspend the service, with prior notice.
2. THE SECOND PARTY's rights and obligations
(2) THE SECOND PARTY shall advertise the products listed by THE FIRST PARTY on the Website and Mobile application. THE FIRST PARTY shall be responsible for providing the list of products it wishes to merchandise via the Website.
(3) THE SECOND PARTY is authorized to accept binding sales on behalf of THE FIRST PARTY and shall ensure that order data is passed on to THE FIRST PARTY through the online platform once the order has been verified by the Customer Service department of the SECOND PARTY.
(4) In order to maintain their reputation for quality and high standard of service, THE SECOND PARTY reserves the right to terminate the relationship with THE FIRST PARTY if THE FIRST PARTY receives more than 10 quality complaints within a 30 day-period)\, or fails to comply with other SECOND PARTY standards.
3. THE FIRST PARTY's rights and obligations
(1) THE FIRST PARTY shall provide all the information necessary when listing a product on the Website. This shall include the mandatory information (i.e. price, stock, size, product type, image, specification, manufacturer information, warranty, guaranty information and any additional information if needed). THE FIRST PARTY shall not deceive a potential customer by misrepresenting their product/s. THE FIRST PARTY shall notify THE SECOND PARTY of any changes to the detail of their listings on the Website following their upload.
(2) THE FIRST PARTY guarantees that information listed on THE SECOND PARTY relating to its products satisfies all legal requirements, and in particular satisfies information requirements for consumer protection.
(3) THE FIRST PARTY shall be responsible for updating information regarding their products listed on THE SECOND PARTY’s Website.
(4) THE FIRST PARTY guarantees that the information provided by it does not violate any third party's intellectual property rights.
(5) THE FIRST PARTY shall not send any advertising email or other commercial advertisements to the visitor/customer of the Website without prior approval of THE SECOND PARTY or the expressed wish of the visitor/customer of the Website. When delivering products sold via THE SECOND PARTY, THE FIRST PARTY shall not advertise any of THE SECOND PARTY's competitors.
(6) THE FIRST PARTY shall process orders and arrange delivery with all reasonable care the moment receipt of confirmation of sale is received through the online platform. Orders shall be confirmed through Online platform and delivered within 1 working day. THE FIRST PARTY is required to keep stock of their advertised products and services up to date on the Online platform to the best of their ability. Repeated stock-outs (more than 10% of attempted sales) shall result in the removal of THE FIRST PARTY and all their products from THE SECOND PARTY platform.
(7) THE FIRST PARTY shall inform THE SECOND PARTY about the availability of products against an order and shall activate 'Ready to Ship' option on the Online platform ensuring that the products are ready to be picked up/dropped off.
(8) If THE FIRST PARTY cannot fulfill an order submitted to him, he must notify the designated person of THE SECOND PARTY through the online platform within 2 hours.
(9) THE FIRST PARTY agrees to adhere to their range of products and prices as provided to THE SECOND PARTY and as described on their listing on the Website. THE FIRST PARTY guarantees that there are no ongoing criminal, bankruptcy or tax proceedings or other penalties outstanding in relation to the products they are selling through the platform. THE FIRST PARTY further guarantees to update information regarding their range of products, stock count, prices and associated terms and conditions.
(10) If a product purchased is defective OR any reason mutually agreed, Customer can return the product in its original condition within 7 days of receipt.
(11) THE FIRST PARTY guarantees THE SECOND PARTY that they shall provide only genuine products on the Website. If THE SECOND PARTY identifies a replica sold by THE FIRST PARTY on the Website, THE SECOND PARTY reserves the right to remove the product immediately.
4. Commission and Charges
(1) THE FIRST PARTY agrees to let the THE SECOND PARTY lift products at DPfor all products.
(2) THE SECOND PARTY may start charging additional fees for the sale of goods through THE SECOND PARTY platform at any point. These may include but are not limited to, listing fees, multiple photos fees and enhanced marketing fees subject to approval of THE FIRST PARTY. In the event of the introduction of further fees, THE FIRST PARTY shall be notified prior to their commencement in writing 30 days earlier and they shall have the option to opt out.
(3) THE SECOND PARTY reserves the right to adjust the percentage commission, providing suitable notice of 30 days is served in advance to THE FIRST PARTY. THE SECOND PARTY shall give THE FIRST PARTY adequate notice of any commission changes, in writing. This does not cover adjustments that constitute a material change of the contract terms, which shall require an additional agreement on the change
(4) THE FIRST PARTY can drop off the ordered product(s) to THE SECOND PARTY's Dispatch Hub voluntarily. For heavy items FIRSTPARTY shall directly deliver the product at customer end, after properly branding it as per SECOND PARTY guideline and doing full quality check.
The SECOND PARTY shall provide THE FIRST PARTY with packaging material and the FIRST PARTY shall print out the necessary documents through the online platform and place the product into the SECOND PARTY's packaging material.
The FIRST PARTY may also keep the products at the warehouse of the SECOND PARTY as consignment. Thereby the products shall be owned by the FIRST PARTY and the SECOND PARTY shall take responsibility and reasonable care for stock keeping of inventory on behalf of the FIRST PARTY. The SECOND PARTY shall be liable for any damages to goods under its warehousing support. The SECOND PARTY shall be liable to return the products upon request by the FIRST PARTY. Any carriage costs associated shall be borne by the FIRST PARTY. The SECOND PARTY shall keep the FIRST PARTY regularly updated on the inventory levels through the Online platform and key action requirements of the inventory.
5. Customer online payment
(1) In case of electronic payment by the customer (e.g. by credit card, debit card, or Wireless online Transfer), THE SECOND PARTY shall collect the payment for the relevant order in THE SECOND PARTY's name on behalf of THE FIRST PARTY, and transfer the payment to THE FIRST PARTY according to the invoicing Annexure I: Company & Bank Information.
(2) THE FIRST PARTY shall keep receipts of deliveries to customers for at least 13 months and make those available on request. In case of problems that may cause the order to be rescinded, or in case of a delivery failure, THE FIRST PARTY must immediately notify THE SECOND PARTY on the phone so that the credit card payment may be cancelled.
6. Return and Rejects
(1) In case of customer rejects, where the customer refuses to collect the product at delivery, THE SECOND PARTY will return the products to FIRST PARTY and it will be treated as a failed delivery.
(2) In case of customer returns, where the customer accepts the product but later returns; THE SECOND PARTY will check the product’s condition and if it fulfills THE SECOND PARTY’S return condition, THE SECOND PARTY will send the product back to THE FIRST PARTY or inventoried as mutually agreed upon by both the parties.
(3) In case of supplying wrong/different product than customer’s order The FIRST PARTY shall pay TK: 40 to SECOND PARTY for return/replacement pickups.
7. Invoicing and payment
(1) THE SECOND PARTY's invoices may be delivered by email, online, fax, post or in person. They include THE SECOND PARTY's claims on THE FIRST PARTY, commission.
(2) THE SECOND PARTY is to send a fortnightly statement of confirmed orders (i.e. Delivered Final to customers) to THE FIRST PARTY by the beginning of each fortnight after which THE FIRST PARTY shall have 5 days for verification. Payment settlement shall be done by THE SECOND PARTY after THE FIRST PARTY has verified and approved it either through email, written or oral communication. Within the stipulated period payments may be pending for all orders in transit. The SECOND PARTY shall take full responsibility of products received from the FIRST PARTY.
(3) For THE SECOND PARTY Marketplace the payment to THE FIRST PARTY shall be made, after deductions of commissions and other such applicable fees, which shall be set mutually by both parties.
(4) In case THE FIRST PARTY receives the payment of sold products/services on THE SECOND PARTY directly, THE FIRST PARTY shall pay the agreed commission to THE SECOND PARTY within 5 days of receiving statement each month.
(5) Online payment merchant fees shall be borne by the FIRST PARTY
(6) Payments shall be made by bank transfer or cross cheque payable to THE FIRST PARTY on a monthly basis.
(1) THE FIRST PARTY indemnifies THE SECOND PARTY from all claims arising in relation to matters outside THE SECOND PARTY's control, which includes but is not limited to the quality of products and services provided by THE FIRST PARTY. THE FIRST PARTY further indemnifies THE SECOND PARTY from third parties' claims resulting from any violation of laws and regulations by THE FIRST PARTY.
(2) THE SECOND PARTY shall indemnify and hold harmless THE FIRST PARTY against any loss, damage, claims arising out of the transaction being executed hereunder this agreement in the website and Mobile application resulting from any negligence or willful misconduct of THE SECOND PARTY.
(3) VAT liability rests with THE FIRST PARTY and THE SECOND PARTY shall not be responsible for any VAT issues, unless or otherwise required by law.
Both parties are obliged to treat confidentially the content of this agreement, as well as all other information and data they acquire in connection with the partnership, and not use it for purposes outside the scope of this contract or pass it on to third parties. This obligation is in force for 1 year after the termination of the contract. Both parties are obliged to follow privacy laws and handle accordingly all data related to customers, suppliers and business partners.
(1) THE SECOND PARTY has the right to freely maintain THE FIRST PARTY's listing and ranking on the Website. THE SECOND PARTY offers customers the opportunity to give ratings and reviews of THE FIRST PARTY's goods and services on the Website and Mobile application, and has the right but not the obligation to publish these online and make them visible to all customers. THE SECOND PARTY reserves the right to delete ratings and reviews.
(2) THE SECOND PARTY may scan, transcribe, and publish online THE FIRST PARTY's listings, logos and other materials required. THE FIRST PARTY grants to THE SECOND PARTY a royalty-free, perpetual, unrestricted license to use and distribute any materials provided by FIRST PARTY, for the purpose of advertising THE SECOND PARTY's service. In particular, this includes but not limited to use in Google AdWords campaigns, domain name registrations and other online marketing and search engine optimization measures.
11. Terms and termination
(1) This agreement is valid as soon as THE FIRST PARTY signs the contract, or fulfils an order referred by THE SECOND PARTY, and remains valid for a period of 2 years. Termination can occur at any time, with a period of notice of one month, in writing, by email, post or fax. The revenues generated during this notice period are still subject to the partnership agreement. The right to immediate termination by either party for important causes (any action with legal implications such as tax evasion, dealing counterfeit goods, bankruptcy, etc.) remains unaffected.
(2) The right to immediate termination in particular covers the case where THE FIRST PARTY repeatedly receives negative ratings and reviews on the Website and Mobile application when these are not obviously unjustified. Repeatedly providing misleading information or withholding information required to present THE FIRST PARTY's items is also grounds for immediate termination. Typos, mistakes and transmission errors are excluded from this, as long as they are not caused with intent or by gross negligence.
(3) THE FIRST PARTY shall be able to terminate the agreement with immediate effect in the event of breach by THE SECOND PARTY of any material obligation under this agreement, including breach of Clause 2, 3, 4, 5 and 9.
(4) Both parties reserve the right to terminate this agreement if both THE FIRST PARTY and THE SECOND PARTY mutually agree to terminate.
(1) If a single clause in this agreement is invalid, both parties shall endeavor to replace the invalid clause by a valid one that reproduces as closely as possible the intended economic meaning of the invalid clause. The validity of the rest of the agreement remains unaffected. This applies in particular if the agreement is found to be incomplete.
(2) THE SECOND PARTY reserves the right to modify their general terms and conditions without giving any justification. In that case, THE SECOND PARTY shall give THE FIRST PARTY adequate notice via email. The notice shall contain advice on the right and period of objection to the changes, and on the consequences of leaving UN-exercised the right to object.
(3) The changed terms and conditions are considered agreed by THE FIRST PARTY if they do not object to them in writing within 2 weeks of receiving notice of the changes.
(4) Any terms and conditions of THE FIRST PARTY are not part of this agreement unless THE SECOND PARTY expressly agrees to adhere to them in writing.
The Parties will attempt in good faith to resolve any controversy or claim through its Managing Director or any other representative as appointed by the Parties. If they are unable to do so within 15 days, and regardless of the cause of action alleged, the claim will be resolved by arbitration under the Arbitration Act 2001 of Bangladesh. The place of Arbitration shall be Dhaka, Bangladesh, unless otherwise decided and mutually agreed between the parties. Each Party will bear its own attorney's fees and cost related to the arbitration.
14. Governing law
These Terms shall be governed by and construed in accordance with the applicable laws of Bangladesh and the Parties submit to the exclusive jurisdiction of the courts in Bangladesh.
In witness whereof, the parties hereto have set their hands on the date, month and year first above written.