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DingConnect Partner Agreement - Click Through Ts & Cs
The provision of top-up and reporting services to You through the DingConnect website at dingconnect.com ("Website") is subject to your acceptance of the terms and conditions below ("Contract"). This Contract, the Website Terms and Conditions, the Privacy Notice, and Cookies Policy apply to your use of the Website. By checking the acceptance box at registration, You expressly agree to be bound by the terms and conditions of this Contract.
1. Parties
Ezetop Unlimited Company t/a Ding, a company incorporated in Ireland and having its registered office at 3 Shelbourne Buildings, Crampton Avenue, Shelbourne Road, Ballsbridge, Dublin 4, DO4C2Y6, Ireland, with company number 422514 and VAT number 9576713i ("Ding"); and
You, the DingConnect Distributor ("You" or "Distributor").
2. Purpose
The purpose of this Contract is to establish the terms and conditions upon which the Distributor may purchase international prepaid airtime products of certain mobile operators and other prepaid products issued by other providers ("Airtime") from Ding for resale through its sales channels using the Website or other Ding platform.
3. Appointment
Ding appoints the Distributor as its non-exclusive distributor to distribute Airtime subject to the terms of this Contract. The Distributor shall not represent itself as an agent of Ding for any purpose, or pledge Ding's credit or give any condition or warranty or make any representation on Ding's behalf or commit Ding to any legal obligations or contracts.
4. Term
This Contract is effective from the date You check the acceptance box ("Effective Date") and shall continue indefinitely until terminated by either party in accordance with the provisions of clause 11 below.
5. Responsibilities of Ding
a) To appoint an account manager to serve as the single point of contact and primary representative for Ding in all dealings with the Distributor. The account manager will provide the Distributor with a commercial proposal, including the discount (if applicable), in advance of the Effective Date.
b) To provide the Distributor with a web login to the Website and/or API credentials to enable the sale of Airtime.
c) To provide the Distributor with appropriate training to use the Website and/or API.
d) To issue an invoice to the Distributor (for Distributor record purposes only) by no later than the fifth working day after the calendar month-end, for all Airtime sold during the prior calendar month sales period (being from 00.00 on day one of the calendar month to 23.59 on the last day of the calendar month, Distributor time zone). The invoice will clearly display the discount due to the Distributor (if applicable).
e) To provide the Distributor with agreed quantities of point of sales materials. To carry on advertising programs mutually agreed to between the Distributor and Ding from time to time.
f) To apply the agreed discount (if applicable) on a per transaction basis so that the net transaction amount (i.e. the transaction amount less the agreed discount percentage) will be deducted from the Distributor balance.
g) All changes in Airtime available for purchase, discounts (if applicable) and other payment arrangements will be notified to the Distributor by email. Ding will give reasonable commercial notice to the Distributor for changes in Airtime available, discounts and payment arrangements where such changes are made at Ding’s discretion. The parties acknowledge that an operator may mandate that changes apply immediately and in such circumstances the Distributor acknowledges that Ding has no option but to apply the changes immediately. All changes to this Contract that Ding is required to make as a result of any legislative or regulatory requirements will be notified to the Distributor at least fourteen (14) days in advance.
6. Responsibilities of the Distributor
a) To appoint an account manager to serve as the single point of contact and primary representative for the Distributor in all dealings with Ding.
b) To keep the login details to the Website safe and secure and to be solely responsible for any and all activities that occur on the Distributor's system (including any fraudulent activities and the resultant effects which occur on the Distributor’s system including any losses to the Distributor balance).
c) To make an up-front payment in a currency agreed with Ding ("Agreed Currency") to secure an initial Distributor balance, in advance of the Effective Date.
d) To pay for the Airtime by Visa, Mastercard, Diners, Discover, Paypal or any other such payment methods available in the future, or if agreed to by Ding, by bank transfer. When paying for Airtime by Visa, Mastercard, Diners, Discover, Paypal or any other such payment methods available in the future, Ding will bear any related standard and reasonable charges imposed by such payment providers. When paying for the Airtime by bank transfer, the Distributor shall ensure that the applicable funds are clearly identified when deposited into Ding’s nominated bank account and notify Ding by email to [email protected] on the same day as the funds are deposited along with relevant confirmation and serial numbers. The Distributor will bear any banking charges imposed by its own bank and by any intermediary banks.
e) To make payments to Ding for the Airtime in the Agreed Currency in advance of the Distributor balance reaching zero.
f) To ensure that the Distributor balance is always large enough to ensure no interruption of sales. The Distributor balance reflects the maximum amount of Airtime that the Distributor can sell. Ding will not process transactions if the Distributor balance reaches zero.
g) To examine any Airtime transaction information in a Ding invoice carefully and to report any errors within thirty (30) days of the date of Ding's invoice. In the event that no error is reported, Ding shall be entitled to rely on the conclusiveness of the relevant invoice and settlement report. In the event that an invoice furnished by Ding is disputed by the Distributor, the Distributor must furnish a notice of dispute within thirty (30) days from the date of the invoice. Each party will furnish the other party with all supporting documentation and the parties will endeavour to resolve the dispute amicably within thirty (30) days of the date of notice of dispute. In cases where the dispute cannot be resolved amicably, Ding’s invoice shall take precedence and the contents therein shall be final and binding.
h) To provide customers with a receipt which complies with local laws that includes the name of the mobile operator for which the Airtime was sold, the unique reference number provided by Ding during the transaction, "powered by Ding " or similar as agreed, the value of the Airtime sold in the currency of sale, the value of Airtime received in the currency of the operator, any applicable taxes, the MSISDN (telephone number) including international dialling code to which the Airtime has been credited and the relevant customer care number or email address for that operator.
i) To ensure that no fees, surcharges or any additional amounts will be paid by the customer to the Distributor or those that are part of the Distributor's network for the Airtime unless expressly agreed to in advance in writing by Ding.
j) The Distributor shall advertise and promote the top-up service and Airtime, provided that any advertising and promotional materials shall be subject to Ding's prior written consent and shall observe any specific instruction given by Ding in relation to the promotion and advertisement of the top-up service and Airtime.
k) The Distributor shall be responsible for the collection, remittance and payment of any or all taxes (including local), charges, levies, fees imposed by governmental or other authority in respect of the purchase, sale or distribution of the Airtime products.
l) To purchase the Airtime provided by Ding only from Ding.
m) To maintain the equipment and devices necessary to access the Website solely at the Distributor’s own risk and expense.
n) If requested, provide Ding with a copy of the Distributor’s Certificate of Incorporation or a current extract from the local companies’ registration office to show that the Distributor has been duly incorporated and is validly existing as a corporation in good standing under the laws of the country or state of its incorporation.
o) Inform Ding immediately of any changes in ownership or control of the Distributor and of any change in its organisation or method of doing business which might affect the performance of the Distributor's duties under this Contract.
p) In the case of online distributors, the Distributor shall not distribute, offer for sale or sell the Airtime through any website or other digital channel unless Ding has been previously notified and shall not bid on Ding brand terms or brand terms of any Ding entity for online marketing.
7. Confidential information
a) "Confidential Information" means any and all information or data of the disclosing party, whether in oral, audio, visual, written, or other form, which is communicated to the other party and which is either identified as confidential or which by its nature is generally considered proprietary and confidential. Without limitation to the foregoing, "Confidential Information" specifically includes information concerning a party's trade secrets, financial information (including pricing) and technical information (including in relation to its systems). Additionally, this Contract shall govern Confidential Information disclosed prior to its Effective Date.
b) Each party agrees that it shall keep confidential and shall not use for its own purposes, nor without the prior written consent of the disclosing party, disclose to any third party, any Confidential Information unless the information is public knowledge or already known to that party at the time of disclosure or subsequently becomes public knowledge other than by breach of this Contract or subsequently comes lawfully into the possession of that party from a third party.
8. Warranties
The Distributor warrants and represents that:
a. if it is a corporation, it is duly incorporated or registered, and is validly existing under the laws of the country in which it is organised, and it has all requisite corporate power and authority to execute, deliver and perform its obligations under this Contract;
b. it shall comply with all applicable laws and regulations and shall be responsible for obtaining any necessary licences or permits for the distribution (online or retail, as applicable) of the Airtime in its territory;
c. it is not, nor is any shareholder or director of the Distributor (if applicable): (i) listed on the U.S. Department of Treasury, Office of Foreign Assets Control, Specially Designated Nationals List; or (ii) listed on the U.S. Department of State's Terrorist Exclusion List; or (iii) listed on the European Union's Consolidated List of Persons, Groups and Entities subject to EU Financial Sanctions.
The Distributor will use all reasonable commercial endeavours to notify Ding: of all laws and regulations affecting the sale and advertising of the Airtime which are in force in the Distributor’s territory or any part of it at the date of this Contract; and any changes to those laws and regulations which might or are likely to affect the parties’ obligations under this Contract.
9. Liability
With the exception of death or personal injury caused by Ding's negligence and with the exception of Ding's fraud or fraudulent misrepresentation:
i) Ding shall not be liable for any loss of profits, loss of business, depletion of goodwill or similar losses or pure economic loss or for any special, indirect or consequential losses, costs, damages, charges or expenses however arising.
ii) Ding's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising out of or in connection with this Contract shall be limited to the then-current Distributor balance.
All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Contract.
10. Suspension
Ding shall be entitled to suspend your access to the Website and your right to sell the Airtime for legal, technical or commercial reasons. This suspension may occur without notice to You. Notwithstanding the foregoing, Ding shall use best endeavours to provide You with advance notice of any planned maintenance with may impact on Airtime transactions.
11. Termination
Either party may terminate this Contract without cause, by giving the other party 30 days' written notice.
Either party may give notice in writing to the other terminating this Contract with immediate effect if:
(a) the other party commits any material breach of any of the terms of this Contract and has not remedied that breach (if remediable) within thirty (30) days of being notified; or
(b) an order is made or a resolution is passed for the winding up of the other party, or an order or an appointment or notice of intention to appoint an administrator or receiver is made or is given by the other party or its directors or by a qualifying charge holder, or circumstances arise which entitle the Court or a creditor to make such an appointment or order, or the other party takes or suffers any similar or analogous action.
Termination of this Contract, however caused, shall be without prejudice to any rights or liabilities accrued at the date of termination.
On termination the Distributor shall promptly return to Ding any documents or papers whatsoever sent to the Distributor and relating to Ding's business (other than correspondence).
The termination of this Contract shall not of itself give rise to any liability on the part of Ding to pay any compensation to the Distributor.
12. Data Protection
(a) For the purposes of this clause 12 the following definitions apply:
(i) Controller, Data Breach Notification, Data Protection Impact Assessment, Data Subject, Personal Data; Processing, Processor; Supervisory Authority have the meaning given to them under applicable Data Protection Law.
(ii) Data Protection Law means to the extent applicable (i) the Data Protection Acts 1988 and 2003 in Ireland (as amended or replaced), (ii) the EU Data Protection Directive 95/46/EC and the EU Privacy & Electronic Communications Directive 2002/58/EC, (iii) any amendments and replacement to the foregoing legislation including the EU General Data Protection Regulation (EU) 2016/679 and (iv) European Commission decisions, binding EU and national guidance and all national implementing legislation.
(iii) Personnel of a party: means (i) the officers, employees, agents and contractors (including subcontractors) of that party and/or its affiliates; and (ii) the officers, employees, contractors and agents of the contractors (including subcontractors) of that party and/or its affiliates.
(b) Each party agrees that, in the performance of its obligations under this Contract, it will comply with the provisions of any applicable data protection legislation.
(c) The provisions contained in clauses 12(d) to (f) below shall apply only to the extent that Data Protection Law applies to the Processing of Personal Data carried out by the Distributor and/or Ding.
(d) Each party acknowledges and agrees that it may be a separate and distinct Controller in respect of the Personal Data set out in Annex 1 as may be Processed pursuant to this Contract. Each party warrants and undertakes to the other that to the extent applicable it shall comply with its obligations as a Controller arising under Data Protection Law in relation to such Processing.
(e) Each party acknowledges and agrees that it may also be necessary for it to act as a Processor or sub-Processor of the Personal Data set out in in Annex 1 for and on behalf of the other party acting as a Processor or Controller.
(f) To the extent that either party acts as a Processor or sub-Processor (as applicable the Processing Party) for and on behalf of the other party acting as a Controller or Processor (the Instructing Party) in accordance with clause 12(e) above, the Processing Party:
(i) shall comply with its obligations as a Processor under Data Protection Law. Without prejudice to the Processing Party’s other obligations pursuant to this clause 12(f), if the Processing Party becomes aware of any reason that would prevent its compliance with Data Protection Law or any incident of non-compliance with Data Protection Law in connection with the Processing of Personal Data under this Contract it shall notify the Instructing Party in the most expedient time possible;
(ii) agrees that it shall acquire no rights or interest in the Personal Data Processed by it, and shall only, and shall procure that its Personnel shall only, Process the Personal Data in accordance with this Contract and any other written instructions of the Instructing Party unless required to do so by European Union, or a European Union Member State, law to which the Processing Party is subject and in such a case, the Processing Party shall inform the Instructing Party of that legal requirement before Processing, unless that law prohibits such disclosure of information;
(iii) subject to the remainder of this sub-clause (iii), will not transfer any Personal Data provided to it by the Instructing Party to any country outside the European Economic Area (EEA) except with the prior written consent of the Instructing Party and in accordance with any terms the Instructing Party may impose on such transfer. The Distributor acknowledges that the Processing of Personal Data by certain of the third parties listed in Annex 2 to this Contract currently requires and will continue to require the transfer of Personal Data by Ding outside the EEA to the jurisdictions listed in Annex 2 and the Distributor hereby consents to such transfers subject to Ding in each case as soon as practicable putting appropriate safeguards in place as required by the Data Protection Laws;
(iv) agrees to assist the Instructing Party, including taking appropriate technical and organisational measures which takes into account the nature of the Processing, to respond to requests by Data Subjects, exercising their rights under Data Protection Law, within such reasonable timescale as may be specified by the Instructing Party;
(v) where it receives any such request from Data Subjects directly, will immediately inform the Instructing Party that it has received the request and immediately forward the request to the Instructing Party. The Processing Party will not respond in any way to such a request, except on the instructions of the Instructing Party;
(vi) shall assist the Instructing Party within such timescale as may be specified by the Instructing Party with compliance with the Instructing Party or any other Controller of the Personal Data in Annex 1 (e.g. an operator) obligations pursuant to:
(i) Article 32 of the GDPR (Security);
(ii) Articles 33 and 34 of the GDPR (Data Breach Notification);
(iii) Article 35 of the GDPR (the conduct of Data Protection Impact Assessments); and
(iv) Article 36 of the GDPR (Prior Consultation requests to Regulators in relation to Personal Data Processing under this Contract);
(vii) shall notify the Instructing Party without undue delay and in any event within twenty-four (24) hours of the Processing Party becoming aware of any unauthorised access to, unauthorised disclosure of or other use of the Personal Data or other circumstances in which the Personal Data is at risk and shall include, in such notification, at least the applicable information referred to in Article 33 (3) of the GDPR and the Processing Party shall not communicate with any Data Subject in respect of a Personal Data Breach without the prior written consent of the Instructing Party;
(viii) will ensure that its Personnel who Process Personal Data under this Contract are subject to obligations of confidentiality in relation to such Personal Data;
(ix) shall implement appropriate technical and organisational measures to assure a level of security appropriate to the risk to the security of the Personal Data, in particular, from accidental or unlawful destruction, loss, alteration, unauthorised, disclosure of or access to the Personal Data including as appropriate and as notified in advance to the Instructing Party:
(i) the pseudonymisation and encryption of Personal Data;
(ii) the ability to ensure the ongoing confidentiality, integrity and availability and resilience of the systems used for such Processing of the Personal Data;
(iii) the ability to restore the availability and access to the Personal Data in the event of a physical or technical incident; and
(iv) a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing.
(x) agrees that it shall not engage any third party to Process the Personal Data without the prior written consent of the Instructing Party (provided that Ding may engage the third parties listed in Annex 2 without the consent of the Distributor);
(xi) shall inform the Instructing Party of any intended changes concerning the addition or replacement of other processors and shall not make any such changes without the prior written consent of the Instructing Party;
(xii) if it engages any third party to Process any of the Personal Data, shall impose on such third party, by means of a written contract, data processing obligations no less onerous than those set out in this clause 12(f) and shall ensure that if any third party engaged by the Processing Party in turn engages another person to Process any Personal Data, the third party is required to comply with data processing obligations no less onerous than those set out in this clause 12(f). The Processing Party shall remain fully liable to the Instructing Party for Processing by any third party as if the Processing was being conducted by the Processing Party;
(xiii) shall make available to the Instructing Party all information necessary to demonstrate compliance with the obligations set out in Article 28 of the GDPR and allow for and contribute to audits, including inspections, conducted by the Instructing Party or another auditor mandated by the Instructing Party including any Supervisory Authority which has jurisdiction over the activities of the Instructing Party;
(xiv) will immediately inform the Instructing Party if, in its opinion, an instruction given or request made pursuant to this Contract infringes Data Protection Laws;
(xv) on termination or expiry of this Contract (or at any other time on request by the Instructing Party), shall return or permanently erase, at the election of the Instructing Party, all copies of the Personal Data received and/or processed by it under this Contract unless European Union or European Union Member State law requires retention of the Personal Data.
(g) The Distributor shall indemnify Ding, without limit or exclusion, against any damages incurred by Ding arising from or in connection with any breach by the Distributor of its obligations under clause 12 or of Data Protection Laws.
13.Force Majeure
The obligations of each party under this Contract shall be suspended during the period and to the extent that such party is prevented or hindered from complying with them by any cause beyond its reasonable control including strikes, act of God, war, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, fire, flood, storm and/or any other cause beyond the reasonable control of the party whose performance is affected.
In order to rely on this clause 13 the party concerned shall give written notice of suspension as soon as reasonably possible to the other party stating the date and extent of the suspension, its cause and expected duration. Performance must resume once the cause is removed. In the event that the cause continues for more than three (3) months either party may terminate this Contract on thirty (30) days written notice.
14. Intellectual Property
Ding grants to the Distributor the non-exclusive right in the Distributor’s territory to use Ding’s registered and/or unregistered trade marks in the promotion, advertisement and sale of Airtime in accordance with the terms of and for the duration of this Contract. Ding makes no representation or warranty as to the validity or enforceability of such trademarks nor as to whether the same infringe on any intellectual property rights of third parties in the relevant territory.
With respect to trade mark infringement, the Distributor shall promptly give notice in writing to Ding in the event that it becomes aware of any infringement or suspected infringement within its territory of the trade marks or any other intellectual property rights in or relating to the Airtime and any claim that the sale of the Airtime within the relevant territory, whether or not under the trade marks, infringes the rights of any third party.
In the case of such claim Ding shall, in its absolute discretion, determine what action if any shall be taken in respect of the matter and shall have sole control over and shall conduct any action as it deems necessary. If requested, the Distributor shall provide all reasonable assistance to Ding or any operator in connection with any action to be taken by Ding and/or the operator.
Neither party shall be entitled to claim any right of ownership or exclusivity in relation to any marketing programs or techniques devised or created by the other party.
All software, documentation or any other intellectual property which is owned by Ding or its licensors (including any operator), shall be and shall remain the exclusive property of Ding or such third parties, and the Distributor shall have no proprietary rights or interests in such material or rights.
15. General Provisions
A. Amendments: Subject to clause 5(g), either party may request changes to this Contract. Any changes, modifications, revisions or amendments to this Contract shall be incorporated by written instrument, and effective when executed and signed by all parties to this Contract.
B. Applicable Law: The construction, interpretation and enforcement of this Contract shall be governed by the laws of Ireland and disputes subject to the exclusive jurisdiction of the courts of Ireland.
C. Entirety of Agreement: This Contract and the Website Terms and Conditions represents the entire and integrated agreement between the Parties and supersedes all prior negotiations, representations and agreements, whether written or oral.
D. Authority: The checking of the acceptance box at registration constitutes an express representation that the representative has the authority to bind the Distributor to the terms of this Contract.
E. Severability: Should any portion of this Contract be judicially determined to be illegal or unenforceable, the remainder of the Contract shall continue in full force and effect, and either party may renegotiate the terms affected by the severance.
F. Third Party Beneficiary Rights: A person who is not a party to this Contract shall not have any rights under or in connection with it.
G. For European Distributors: In the case of the sale of Airtime of any mobile operator inside the EU, it is expressly stated that you and Ding are both acting on behalf of such mobile operators in respect of the sales of such Airtime. For these operators, the receipt referred to at clause 6(h) above must include the following text: Provided through <<distributor name>> for and on behalf of <<operator name>>
H. Assignment: The Distributor shall not, without the prior written consent of Ding, assign, transfer, charge or deal in any other manner with this contract or its rights under it or part of it, or purport to do any of the same, nor sub-contract any or all of its obligations under this Contract.
I. Waiver: The failure of a party to exercise or enforce any right under this Contract shall not be deemed to be a waiver of that right, nor operate to bar the exercise or enforcement of it at any time or times thereafter.
J. Notices: Any notice required to be given pursuant to this Contract shall be in writing and shall be given by sending the same by email to [email protected] (where notice is being furnished to Ding) and to the email address provided by Distributor at registration (where notice is being furnished to the Distributor). Any notice given according to the above procedure shall be deemed to have been given, at the time of transmission.
DingConnect Partner Agreement
DingConnect Partner Agreement - Click Through Ts & Cs
The provision of top-up and reporting services to You through the DingConnect website at dingconnect.com ("Website") is subject to your acceptance of the terms and conditions below ("Contract"). This Contract, the Website Terms and Conditions, the Privacy Notice, and Cookies Policy apply to your use of the Website. By checking the acceptance box at registration, You expressly agree to be bound by the terms and conditions of this Contract.
1. Parties
Ezetop Unlimited Company t/a Ding, a company incorporated in Ireland and having its registered office at 3 Shelbourne Buildings, Crampton Avenue, Shelbourne Road, Ballsbridge, Dublin 4, DO4C2Y6, Ireland, with company number 422514 and VAT number 9576713i ("Ding"); and
You, the DingConnect Distributor ("You" or "Distributor").
2. Purpose
The purpose of this Contract is to establish the terms and conditions upon which the Distributor may purchase international prepaid airtime products of certain mobile operators and other prepaid products issued by other providers ("Airtime") from Ding for resale through its sales channels using the Website or other Ding platform.
3. Appointment
Ding appoints the Distributor as its non-exclusive distributor to distribute Airtime subject to the terms of this Contract. The Distributor shall not represent itself as an agent of Ding for any purpose, or pledge Ding's credit or give any condition or warranty or make any representation on Ding's behalf or commit Ding to any legal obligations or contracts.
4. Term
This Contract is effective from the date You check the acceptance box ("Effective Date") and shall continue indefinitely until terminated by either party in accordance with the provisions of clause 11 below.
5. Responsibilities of Ding
a) To appoint an account manager to serve as the single point of contact and primary representative for Ding in all dealings with the Distributor. The account manager will provide the Distributor with a commercial proposal, including the discount (if applicable), in advance of the Effective Date.
b) To provide the Distributor with a web login to the Website and/or API credentials to enable the sale of Airtime.
c) To provide the Distributor with appropriate training to use the Website and/or API.
d) To issue an invoice to the Distributor (for Distributor record purposes only) by no later than the fifth working day after the calendar month-end, for all Airtime sold during the prior calendar month sales period (being from 00.00 on day one of the calendar month to 23.59 on the last day of the calendar month, Distributor time zone). The invoice will clearly display the discount due to the Distributor (if applicable).
e) To provide the Distributor with agreed quantities of point of sales materials. To carry on advertising programs mutually agreed to between the Distributor and Ding from time to time.
f) To apply the agreed discount (if applicable) on a per transaction basis so that the net transaction amount (i.e. the transaction amount less the agreed discount percentage) will be deducted from the Distributor balance.
g) All changes in Airtime available for purchase, discounts (if applicable) and other payment arrangements will be notified to the Distributor by email. Ding will give reasonable commercial notice to the Distributor for changes in Airtime available, discounts and payment arrangements where such changes are made at Ding’s discretion. The parties acknowledge that an operator may mandate that changes apply immediately and in such circumstances the Distributor acknowledges that Ding has no option but to apply the changes immediately. All changes to this Contract that Ding is required to make as a result of any legislative or regulatory requirements will be notified to the Distributor at least fourteen (14) days in advance.
6. Responsibilities of the Distributor
a) To appoint an account manager to serve as the single point of contact and primary representative for the Distributor in all dealings with Ding.
b) To keep the login details to the Website safe and secure and to be solely responsible for any and all activities that occur on the Distributor's system (including any fraudulent activities and the resultant effects which occur on the Distributor’s system including any losses to the Distributor balance).
c) To make an up-front payment in a currency agreed with Ding ("Agreed Currency") to secure an initial Distributor balance, in advance of the Effective Date.
d) To pay for the Airtime by Visa, Mastercard, Diners, Discover, Paypal or any other such payment methods available in the future, or if agreed to by Ding, by bank transfer. When paying for Airtime by Visa, Mastercard, Diners, Discover, Paypal or any other such payment methods available in the future, Ding will bear any related standard and reasonable charges imposed by such payment providers. When paying for the Airtime by bank transfer, the Distributor shall ensure that the applicable funds are clearly identified when deposited into Ding’s nominated bank account and notify Ding by email to [email protected] on the same day as the funds are deposited along with relevant confirmation and serial numbers. The Distributor will bear any banking charges imposed by its own bank and by any intermediary banks.
e) To make payments to Ding for the Airtime in the Agreed Currency in advance of the Distributor balance reaching zero.
f) To ensure that the Distributor balance is always large enough to ensure no interruption of sales. The Distributor balance reflects the maximum amount of Airtime that the Distributor can sell. Ding will not process transactions if the Distributor balance reaches zero.
g) To examine any Airtime transaction information in a Ding invoice carefully and to report any errors within thirty (30) days of the date of Ding's invoice. In the event that no error is reported, Ding shall be entitled to rely on the conclusiveness of the relevant invoice and settlement report. In the event that an invoice furnished by Ding is disputed by the Distributor, the Distributor must furnish a notice of dispute within thirty (30) days from the date of the invoice. Each party will furnish the other party with all supporting documentation and the parties will endeavour to resolve the dispute amicably within thirty (30) days of the date of notice of dispute. In cases where the dispute cannot be resolved amicably, Ding’s invoice shall take precedence and the contents therein shall be final and binding.
h) To provide customers with a receipt which complies with local laws that includes the name of the mobile operator for which the Airtime was sold, the unique reference number provided by Ding during the transaction, "powered by Ding " or similar as agreed, the value of the Airtime sold in the currency of sale, the value of Airtime received in the currency of the operator, any applicable taxes, the MSISDN (telephone number) including international dialling code to which the Airtime has been credited and the relevant customer care number or email address for that operator.
i) To ensure that no fees, surcharges or any additional amounts will be paid by the customer to the Distributor or those that are part of the Distributor's network for the Airtime unless expressly agreed to in advance in writing by Ding.
j) The Distributor shall advertise and promote the top-up service and Airtime, provided that any advertising and promotional materials shall be subject to Ding's prior written consent and shall observe any specific instruction given by Ding in relation to the promotion and advertisement of the top-up service and Airtime.
k) The Distributor shall be responsible for the collection, remittance and payment of any or all taxes (including local), charges, levies, fees imposed by governmental or other authority in respect of the purchase, sale or distribution of the Airtime products.
l) To purchase the Airtime provided by Ding only from Ding.
m) To maintain the equipment and devices necessary to access the Website solely at the Distributor’s own risk and expense.
n) If requested, provide Ding with a copy of the Distributor’s Certificate of Incorporation or a current extract from the local companies’ registration office to show that the Distributor has been duly incorporated and is validly existing as a corporation in good standing under the laws of the country or state of its incorporation.
o) Inform Ding immediately of any changes in ownership or control of the Distributor and of any change in its organisation or method of doing business which might affect the performance of the Distributor's duties under this Contract.
p) In the case of online distributors, the Distributor shall not distribute, offer for sale or sell the Airtime through any website or other digital channel unless Ding has been previously notified and shall not bid on Ding brand terms or brand terms of any Ding entity for online marketing.
7. Confidential information
a) "Confidential Information" means any and all information or data of the disclosing party, whether in oral, audio, visual, written, or other form, which is communicated to the other party and which is either identified as confidential or which by its nature is generally considered proprietary and confidential. Without limitation to the foregoing, "Confidential Information" specifically includes information concerning a party's trade secrets, financial information (including pricing) and technical information (including in relation to its systems). Additionally, this Contract shall govern Confidential Information disclosed prior to its Effective Date.
b) Each party agrees that it shall keep confidential and shall not use for its own purposes, nor without the prior written consent of the disclosing party, disclose to any third party, any Confidential Information unless the information is public knowledge or already known to that party at the time of disclosure or subsequently becomes public knowledge other than by breach of this Contract or subsequently comes lawfully into the possession of that party from a third party.
8. Warranties
The Distributor warrants and represents that:
a. if it is a corporation, it is duly incorporated or registered, and is validly existing under the laws of the country in which it is organised, and it has all requisite corporate power and authority to execute, deliver and perform its obligations under this Contract;
b. it shall comply with all applicable laws and regulations and shall be responsible for obtaining any necessary licences or permits for the distribution (online or retail, as applicable) of the Airtime in its territory;
c. it is not, nor is any shareholder or director of the Distributor (if applicable): (i) listed on the U.S. Department of Treasury, Office of Foreign Assets Control, Specially Designated Nationals List; or (ii) listed on the U.S. Department of State's Terrorist Exclusion List; or (iii) listed on the European Union's Consolidated List of Persons, Groups and Entities subject to EU Financial Sanctions.
The Distributor will use all reasonable commercial endeavours to notify Ding: of all laws and regulations affecting the sale and advertising of the Airtime which are in force in the Distributor’s territory or any part of it at the date of this Contract; and any changes to those laws and regulations which might or are likely to affect the parties’ obligations under this Contract.
9. Liability
With the exception of death or personal injury caused by Ding's negligence and with the exception of Ding's fraud or fraudulent misrepresentation:
i) Ding shall not be liable for any loss of profits, loss of business, depletion of goodwill or similar losses or pure economic loss or for any special, indirect or consequential losses, costs, damages, charges or expenses however arising.
ii) Ding's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising out of or in connection with this Contract shall be limited to the then-current Distributor balance.
All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Contract.
10. Suspension
Ding shall be entitled to suspend your access to the Website and your right to sell the Airtime for legal, technical or commercial reasons. This suspension may occur without notice to You. Notwithstanding the foregoing, Ding shall use best endeavours to provide You with advance notice of any planned maintenance with may impact on Airtime transactions.
11. Termination
Either party may terminate this Contract without cause, by giving the other party 30 days' written notice.
Either party may give notice in writing to the other terminating this Contract with immediate effect if:
(a) the other party commits any material breach of any of the terms of this Contract and has not remedied that breach (if remediable) within thirty (30) days of being notified; or
(b) an order is made or a resolution is passed for the winding up of the other party, or an order or an appointment or notice of intention to appoint an administrator or receiver is made or is given by the other party or its directors or by a qualifying charge holder, or circumstances arise which entitle the Court or a creditor to make such an appointment or order, or the other party takes or suffers any similar or analogous action.
Termination of this Contract, however caused, shall be without prejudice to any rights or liabilities accrued at the date of termination.
On termination the Distributor shall promptly return to Ding any documents or papers whatsoever sent to the Distributor and relating to Ding's business (other than correspondence).
The termination of this Contract shall not of itself give rise to any liability on the part of Ding to pay any compensation to the Distributor.
12. Data Protection
(a) For the purposes of this clause 12 the following definitions apply:
(i) Controller, Data Breach Notification, Data Protection Impact Assessment, Data Subject, Personal Data; Processing, Processor; Supervisory Authority have the meaning given to them under applicable Data Protection Law.
(ii) Data Protection Law means to the extent applicable (i) the Data Protection Acts 1988 and 2003 in Ireland (as amended or replaced), (ii) the EU Data Protection Directive 95/46/EC and the EU Privacy & Electronic Communications Directive 2002/58/EC, (iii) any amendments and replacement to the foregoing legislation including the EU General Data Protection Regulation (EU) 2016/679 and (iv) European Commission decisions, binding EU and national guidance and all national implementing legislation.
(iii) Personnel of a party: means (i) the officers, employees, agents and contractors (including subcontractors) of that party and/or its affiliates; and (ii) the officers, employees, contractors and agents of the contractors (including subcontractors) of that party and/or its affiliates.
(b) Each party agrees that, in the performance of its obligations under this Contract, it will comply with the provisions of any applicable data protection legislation.
(c) The provisions contained in clauses 12(d) to (f) below shall apply only to the extent that Data Protection Law applies to the Processing of Personal Data carried out by the Distributor and/or Ding.
(d) Each party acknowledges and agrees that it may be a separate and distinct Controller in respect of the Personal Data set out in Annex 1 as may be Processed pursuant to this Contract. Each party warrants and undertakes to the other that to the extent applicable it shall comply with its obligations as a Controller arising under Data Protection Law in relation to such Processing.
(e) Each party acknowledges and agrees that it may also be necessary for it to act as a Processor or sub-Processor of the Personal Data set out in in Annex 1 for and on behalf of the other party acting as a Processor or Controller.
(f) To the extent that either party acts as a Processor or sub-Processor (as applicable the Processing Party) for and on behalf of the other party acting as a Controller or Processor (the Instructing Party) in accordance with clause 12(e) above, the Processing Party:
(i) shall comply with its obligations as a Processor under Data Protection Law. Without prejudice to the Processing Party’s other obligations pursuant to this clause 12(f), if the Processing Party becomes aware of any reason that would prevent its compliance with Data Protection Law or any incident of non-compliance with Data Protection Law in connection with the Processing of Personal Data under this Contract it shall notify the Instructing Party in the most expedient time possible;
(ii) agrees that it shall acquire no rights or interest in the Personal Data Processed by it, and shall only, and shall procure that its Personnel shall only, Process the Personal Data in accordance with this Contract and any other written instructions of the Instructing Party unless required to do so by European Union, or a European Union Member State, law to which the Processing Party is subject and in such a case, the Processing Party shall inform the Instructing Party of that legal requirement before Processing, unless that law prohibits such disclosure of information;
(iii) subject to the remainder of this sub-clause (iii), will not transfer any Personal Data provided to it by the Instructing Party to any country outside the European Economic Area (EEA) except with the prior written consent of the Instructing Party and in accordance with any terms the Instructing Party may impose on such transfer. The Distributor acknowledges that the Processing of Personal Data by certain of the third parties listed in Annex 2 to this Contract currently requires and will continue to require the transfer of Personal Data by Ding outside the EEA to the jurisdictions listed in Annex 2 and the Distributor hereby consents to such transfers subject to Ding in each case as soon as practicable putting appropriate safeguards in place as required by the Data Protection Laws;
(iv) agrees to assist the Instructing Party, including taking appropriate technical and organisational measures which takes into account the nature of the Processing, to respond to requests by Data Subjects, exercising their rights under Data Protection Law, within such reasonable timescale as may be specified by the Instructing Party;
(v) where it receives any such request from Data Subjects directly, will immediately inform the Instructing Party that it has received the request and immediately forward the request to the Instructing Party. The Processing Party will not respond in any way to such a request, except on the instructions of the Instructing Party;
(vi) shall assist the Instructing Party within such timescale as may be specified by the Instructing Party with compliance with the Instructing Party or any other Controller of the Personal Data in Annex 1 (e.g. an operator) obligations pursuant to:
(i) Article 32 of the GDPR (Security);
(ii) Articles 33 and 34 of the GDPR (Data Breach Notification);
(iii) Article 35 of the GDPR (the conduct of Data Protection Impact Assessments); and
(iv) Article 36 of the GDPR (Prior Consultation requests to Regulators in relation to Personal Data Processing under this Contract);
(vii) shall notify the Instructing Party without undue delay and in any event within twenty-four (24) hours of the Processing Party becoming aware of any unauthorised access to, unauthorised disclosure of or other use of the Personal Data or other circumstances in which the Personal Data is at risk and shall include, in such notification, at least the applicable information referred to in Article 33 (3) of the GDPR and the Processing Party shall not communicate with any Data Subject in respect of a Personal Data Breach without the prior written consent of the Instructing Party;
(viii) will ensure that its Personnel who Process Personal Data under this Contract are subject to obligations of confidentiality in relation to such Personal Data;
(ix) shall implement appropriate technical and organisational measures to assure a level of security appropriate to the risk to the security of the Personal Data, in particular, from accidental or unlawful destruction, loss, alteration, unauthorised, disclosure of or access to the Personal Data including as appropriate and as notified in advance to the Instructing Party:
(i) the pseudonymisation and encryption of Personal Data;
(ii) the ability to ensure the ongoing confidentiality, integrity and availability and resilience of the systems used for such Processing of the Personal Data;
(iii) the ability to restore the availability and access to the Personal Data in the event of a physical or technical incident; and
(iv) a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing.
(x) agrees that it shall not engage any third party to Process the Personal Data without the prior written consent of the Instructing Party (provided that Ding may engage the third parties listed in Annex 2 without the consent of the Distributor);
(xi) shall inform the Instructing Party of any intended changes concerning the addition or replacement of other processors and shall not make any such changes without the prior written consent of the Instructing Party;
(xii) if it engages any third party to Process any of the Personal Data, shall impose on such third party, by means of a written contract, data processing obligations no less onerous than those set out in this clause 12(f) and shall ensure that if any third party engaged by the Processing Party in turn engages another person to Process any Personal Data, the third party is required to comply with data processing obligations no less onerous than those set out in this clause 12(f). The Processing Party shall remain fully liable to the Instructing Party for Processing by any third party as if the Processing was being conducted by the Processing Party;
(xiii) shall make available to the Instructing Party all information necessary to demonstrate compliance with the obligations set out in Article 28 of the GDPR and allow for and contribute to audits, including inspections, conducted by the Instructing Party or another auditor mandated by the Instructing Party including any Supervisory Authority which has jurisdiction over the activities of the Instructing Party;
(xiv) will immediately inform the Instructing Party if, in its opinion, an instruction given or request made pursuant to this Contract infringes Data Protection Laws;
(xv) on termination or expiry of this Contract (or at any other time on request by the Instructing Party), shall return or permanently erase, at the election of the Instructing Party, all copies of the Personal Data received and/or processed by it under this Contract unless European Union or European Union Member State law requires retention of the Personal Data.
(g) The Distributor shall indemnify Ding, without limit or exclusion, against any damages incurred by Ding arising from or in connection with any breach by the Distributor of its obligations under clause 12 or of Data Protection Laws.
13.Force Majeure
The obligations of each party under this Contract shall be suspended during the period and to the extent that such party is prevented or hindered from complying with them by any cause beyond its reasonable control including strikes, act of God, war, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, fire, flood, storm and/or any other cause beyond the reasonable control of the party whose performance is affected.
In order to rely on this clause 13 the party concerned shall give written notice of suspension as soon as reasonably possible to the other party stating the date and extent of the suspension, its cause and expected duration. Performance must resume once the cause is removed. In the event that the cause continues for more than three (3) months either party may terminate this Contract on thirty (30) days written notice.
14. Intellectual Property
Ding grants to the Distributor the non-exclusive right in the Distributor’s territory to use Ding’s registered and/or unregistered trade marks in the promotion, advertisement and sale of Airtime in accordance with the terms of and for the duration of this Contract. Ding makes no representation or warranty as to the validity or enforceability of such trademarks nor as to whether the same infringe on any intellectual property rights of third parties in the relevant territory.
With respect to trade mark infringement, the Distributor shall promptly give notice in writing to Ding in the event that it becomes aware of any infringement or suspected infringement within its territory of the trade marks or any other intellectual property rights in or relating to the Airtime and any claim that the sale of the Airtime within the relevant territory, whether or not under the trade marks, infringes the rights of any third party.
In the case of such claim Ding shall, in its absolute discretion, determine what action if any shall be taken in respect of the matter and shall have sole control over and shall conduct any action as it deems necessary. If requested, the Distributor shall provide all reasonable assistance to Ding or any operator in connection with any action to be taken by Ding and/or the operator.
Neither party shall be entitled to claim any right of ownership or exclusivity in relation to any marketing programs or techniques devised or created by the other party.
All software, documentation or any other intellectual property which is owned by Ding or its licensors (including any operator), shall be and shall remain the exclusive property of Ding or such third parties, and the Distributor shall have no proprietary rights or interests in such material or rights.
15. General Provisions
A. Amendments: Subject to clause 5(g), either party may request changes to this Contract. Any changes, modifications, revisions or amendments to this Contract shall be incorporated by written instrument, and effective when executed and signed by all parties to this Contract.
B. Applicable Law: The construction, interpretation and enforcement of this Contract shall be governed by the laws of Ireland and disputes subject to the exclusive jurisdiction of the courts of Ireland.
C. Entirety of Agreement: This Contract and the Website Terms and Conditions represents the entire and integrated agreement between the Parties and supersedes all prior negotiations, representations and agreements, whether written or oral.
D. Authority: The checking of the acceptance box at registration constitutes an express representation that the representative has the authority to bind the Distributor to the terms of this Contract.
E. Severability: Should any portion of this Contract be judicially determined to be illegal or unenforceable, the remainder of the Contract shall continue in full force and effect, and either party may renegotiate the terms affected by the severance.
F. Third Party Beneficiary Rights: A person who is not a party to this Contract shall not have any rights under or in connection with it.
G. For European Distributors: In the case of the sale of Airtime of any mobile operator inside the EU, it is expressly stated that you and Ding are both acting on behalf of such mobile operators in respect of the sales of such Airtime. For these operators, the receipt referred to at clause 6(h) above must include the following text: Provided through <<distributor name>> for and on behalf of <<operator name>>
H. Assignment: The Distributor shall not, without the prior written consent of Ding, assign, transfer, charge or deal in any other manner with this contract or its rights under it or part of it, or purport to do any of the same, nor sub-contract any or all of its obligations under this Contract.
I. Waiver: The failure of a party to exercise or enforce any right under this Contract shall not be deemed to be a waiver of that right, nor operate to bar the exercise or enforcement of it at any time or times thereafter.
J. Notices: Any notice required to be given pursuant to this Contract shall be in writing and shall be given by sending the same by email to [email protected] (where notice is being furnished to Ding) and to the email address provided by Distributor at registration (where notice is being furnished to the Distributor). Any notice given according to the above procedure shall be deemed to have been given, at the time of transmission.