Agency Agreement
1. Introduction
This Agreement (herein the “Agreement”) is entered by and between YouKey.lk (the “Sales Platform”), managed and owned by Attrex Institute (Pvt) Ltd. (The Principal) a Company incorporated under Sri Lanka Companies Act No 7 of 2007, with its Registered office at No.33, Sri Soratha Mawatha, Gangodawila, Nugegoda, Sri Lanka (hereinafter the “Company”) and the person who has completed the Online Application Form to become an Agency of the Company (hereinafter the “Agency”), through the Company’s Sales Platform.
Both the Agency and the Company may hereinafter collectively be referred to as the “Parties” and each of them as a “Party”, where the context requires so.
WHEREAS:
1.1. The company operates the sales platform located at www.youkey.lk (the “Sales Platform”), in which end consumers may purchase goods, services, software or other digital goods (“Products”) from Youkey. The Sales Platform also permits third-party advertisers (“Promoters”) to promote a third party vendor’s products. Vendors who offer products and services to end-users are referenced herein as “Vendor.” The program whereby Promoters promote the Products is referenced herein the “Promoter Program.”;
1.2. The Agency is an independent contractor who is engaged in the business of soliciting Clients in respect of services and transactions carried out by the Company and is willing to act as a mediator and is remunerated as a mediator in the process of identification of suitable opportunities for the Company to provide the services authorized to provide and specifically to generate leads, create consumer interest towards the products and services offered by the Company and in general carrying out any actions deemed necessary aiming to the successful conclusion of a contractual relationship between the Company and introduce Prospective Clients to the Company.
1.3. The Parties wish to set out the terms and conditions of their relationship where the Agency would provide intermediary services and carry out any preparatory tasks deemed necessary towards the Company for canvassing Prospective Clients with the scope to enter into an Operating Agreement with the Company. The Agency will act as a mediator between the Company and the Prospective Clients for introducing Prospective Clients of its network and / or explaining the services the Company offers to all of its Clients and will act as an intermediary doing all that is required and necessary for the conclusion of contractual relationship between the Company and the Prospective Clients the service of introducing Prospective Clients to the Company.
1.4. The Agency, if required under applicable laws and regulations, is solely responsible to ensure that he is registered as an Agency, or in some other capacity which authorizes the Agency to undertake and provide to the Company the services contemplated under this Agreement.
2. General Terms and Conditions
2.1. The Agreement is entered between the Company and the Agency in respect of the provision of services in their individual capacity. The Agreement is valid for an indefinite period of time, unless terminated under the provisions of clause 11.
2.2. This Agreement and all Appendices constitute the entire Agreement between the Parties and will supersede and replace all prior arrangements, in written form, between the Parties.
2.3. Each Party acknowledges that, in entering into this Agreement, they do not rely on any representation, warranty or other term not forming part of this Agreement.
2.4. The Agency will not describe himself as an Partner of the Company and will not hold himself out or act, or authorize or permit any person to hold it out or act, as an authorised or permitted person to bind the Company to a third party in any way, unless otherwise been agreed between Parties, in written form.
2.5 It is agreed and understood by both parties that that the Company has the absolute right, after giving to the Agency prior notice, to change the terms of this Agreement. It is noted that any changes to this Agreement are subject to prior approval from the Agency.
3. Definition of Terms
3.1. In this Agreement:
“Account”
Shall mean any account opened with the Company on YouKey.lk Sales Platform.
“Agency”
Shall mean any legal entity or a natural person obtaining remuneration from the Company for acting as mediator between Prospective Clients and the Company and carrying out activities deemed necessary for the conclusion of an agreement between the Company and its Client, as per the provisions of the present Agreement, for the purpose of introducing clients to the Company.
“Balance”
Shall mean the total financial result of all Completed Transactions and depositing/withdrawal operations on the account .
“Campaign”
Shall mean an Agency links which is different than the one received by the Agency at the time of Agency Account Opening and which shall have the same or different commission structure than the one mentioned in Appendix 1 of this Agreement. A Campaign can only be created by the Agency if the Company provides its prior approval.
“Effective Date”
Shall be the date upon which the Agency agrees to the Terms and Conditions of the present Agreement and submits the Online Application Form on the Company(s) Sales Platform(s).
“Existing Client”
shall mean:
a) a Client who already had a account with the Company at the moment when the Agency mediated and solicited the Client for the first time to the same, or
b) a Client who, further to the mediation and canvassing of the, has been introduced by the Agency and has opened a account with the Company.
“Intellectual Property Rights”
Shall mean patents, rights to inventions, copyright and related rights, moral rights, trademarks, trade names and domain names, website content, rights in get-up, rights in goodwill or to sue for passing off, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which may now or in the future subsist in any part of the world.
“Introduced Client”
Means the Prospective Client which has been introduced to the Company by the Agency and for which the Agency mediated for the facilitation assistance towards the creation of awareness and to the successful conclusion of a contractual relationship between the Company and the Prospective Client in respect to the services provides and has not been accepted by the Company as its Client yet.
“Operative Agreements”
Shall mean the agreements entered into by the Client and the Company that govern all activity of the Client. Operative Agreements consist of the Account Opening Agreement, the Terms of Business, including in each case any addendums thereto and the disclosure notice, accessible through the Website as the same may be amended from time to time. In addition, it also includes the Conflicts of Interest Policy, Complaints Handling Process, Privacy Policy and Client Categorization Policy.
“Place of Domicile”
Shall mean the legal residence which is the place where the Agency considers it to be his/her permanent residence.
“Principal”
Shall mean an individual who is:
a) a sole proprietor of a sole proprietorship;
b) a general partner of a partnership;
c) a director, president, chief executive officer, chief operating officer or chief financial officer of a corporation, limited liability company or limited partnership;
d) a manager, managing member or a member vested with the management authority for a limited liability company or limited liability partnership.
“Promotional Material”
Shall mean any communication that relates to the Company or its services made to or directed at, or that relates in any way to the solicitation of a Prospective Client or a transaction in an Existing Client’s account. Promotional Material includes, but is not limited to, published written texts, training materials, advertisements, market analysis, and research reports, correspondence to Existing Clients or Prospective Clients, newsletters and generally anything written that assists in the solicitation process. Such promotional material will be provided by the Company to the Agency. Authorisation to us such Promotional Material shall not be considered as relieving the Agency from any of its obligations to act as a mediator. It is herein understood that the Agency will be remunerated as mediator.
“Proprietary Information”
shall mean information, including, but not limited to, trade secrets, formulae, methods techniques, confidential information, computations, knowledge, data or other information of either Party relating to software products, trading platform, trade routing systems, counterparties, processes, know-how, marketing, merchandising, selling ideas, selling concepts or other confidential information, forecasts, marketing plans, strategies, pricing strategies, computer programs, copyrightable materials, finances or other subject matter pertaining to any of the Parties’ business, or any of its clients, Clients, consultants or suppliers, which either Party may produce, use, view or otherwise acquire during the relationship created by this Agreement.
“Proprietary Property”
Shall mean any property, including, but not limited to, Intellectual Property Rights, records, forms, trade literature, newsletters, market reports, articles, computer software and any reproduced copies or negatives thereof, and any Proprietary Information or such other information reflected or contained therein, provided and furnished by the Company or otherwise obtained by the Agency during the relationship created by this Agreement.
“Prospective Client”
Shall mean an individual or an entity which is identified by the Agency as a business opportunity for the conclusion of a financial contract by the Company, and which does not have an account with the Company and who has been introduced by the Agency for the purpose of concluding an agreement with the Company.
“Sub-Agency”
Shall mean any legal entity or a natural person obtaining remuneration from the Company for acting as mediator between Prospective Clients and the Company for the conclusion of an agreement between the Company and its Client, as per the provisions of the Agency Agreement, for the purpose of introducing clients to the Company, and is assigned under to another Agency.
“Transaction”
Shall mean any contract or transaction entered into or executed by the Client or on behalf of the Client arising under the Operative Agreements.
“Unlinked Client”
Means any Client which has been introduced to the Company by the Agency and wished to be unlinked from the Agency.
“Website”
Shall mean the Company’s website athttps://www.youkey.lk/ or such other websites as the Company may maintain from time to time for access by Clients.
“Written Notice”
Shall have the meaning set out in clause 12.
3.2. All references to a statutory provision include references to:
3.2.1. any statutory modification, consolidation or re-enactment of it, whether before or after the Effective Date of this Agreement, for the time being in force;
3.2.2. all statutory instruments or orders made pursuant to it; and
3.2.3. any statutory provision of which that statutory provision is a re-enactment or modification.
3.3. Words denoting the singular include the plural and vice versa; words denoting any gender include all genders; and words denoting persons include corporations, partnerships, other unincorporated bodies and all other legal entities and vice versa.
3.4. Unless otherwise stated, reference to a clause, party, appendix or a schedule shall mean a clause or a party, appendix or schedule of this Agreement.
3.5. The clause headings are inserted for ease of reference only and do not affect the construction of this Agreement.
4. Electronic Signatures and Agency Acceptance of Agreement(s)
4.1. The Agency hereby acknowledges that the following actions show his approval of this Agreement and agrees to all the terms and conditions set out in this Agreement:
a. By completing and/or submitting and/or accepting the Agency’s Online Application Form on the Company’s Main Website(s);
b. By continuing to access or use the Company’s Main Website(s);
c. By identifying suitable opportunities for the Company soliciting clients and mediating for the generation of leads, consumer interest towards the products and services the Company ultimately referring Prospective Clients to the Company directly or through the Company’s Main Website(s) in line with the requirements and/or terms and conditions of this Agreement; and/or
d. By accepting any commissions and/or payments from the Company or any of its Clients for the action of mediation carried out..
4.2. Under the provisions of the Law on the Legal Framework for Electronic Signatures and other Related Matters, the Law on Certain Aspects of the Services of the Information Society and especially of Electronic Commerce and other Related Matters and the Distance Marketing of Consumer Services Law a distance contract is legally binding upon the contractors without the requirement of a signature. The Agency hereby acknowledges that this Agreement and all of the terms and conditions thereof are legally binding upon him and breach of any of the terms and conditions of this Agreement shall give rise to possible legal actions, should out-of-court settlement does not prove of a sufficient settlement method of any matter arising out of or in connection with any term or condition of this Agreement.
4.3. The Agency further acknowledges and consents to the availability and/or provision of information through the Company’s website.
5. Representation and Warranties
5.1. The Agency, acting as a mediator, acknowledges that the Agency is aware of the contents and understands the Company’s Compliance, Policies, Terms and Conditions as modified from time to time, and agrees to conduct the Agency’s business in accordance with the policies and procedures contained therein.
5.2. The Agency represents and warrants that all actions to be performed by him under this Agreement will comply with applicable laws and/or regulations, currently in effect in the Socialistic Republic of Sri Lanka as amended from time to time and/or any other laws and regulations which shall come into force after the Effective Date of this Agreement. The Agency hereby acknowledges that he is solely responsible for being updated on any matters related to the Law and/or any other applicable laws and regulations of the Socialistic Republic of Sri Lanka
5.3. The Agency, acting as a mediator, must provide true and complete information to the Company at all times; including but not limited to his identity, contact information, payment instructions, nationality, residency, participation in any Agency programs for other websites, the location and nature of the Agency’s intermediation activities carried out for the purposes of actively mediating for introducing Prospective Clients to the Company and for providing assistance for the successful conclusion of an Operative Agreement, and any other information that the Company may request form time to time. In addition, the Agency must provide to the Company the means to be used for introducing Prospective Clients to the Company. These means include, inter alia, the list of websites operated by Agencys.
5.4. The Agency will carry on his operations and business as an independent contractor and not as a Partner and/or employee and/or representative of the Company.
5.5. The Agency is not allowed and/or is restricted from providing competing services to any of the Prospective Clients introduced by him to the Company.
5.6. The Company shall be responsible for the provision of information to the Clients with regards to any commissions and/or charges and/or fees and/or inducements received by the Agency under this Agreement. The Agency’s obligations under this Agreement shall be limited to the provision of intermediary services for the identification of suitable opportunities for the Company to provide the services including the generation of leads, creation of consumer interest and ultimately to the introduction of Prospective Clients to the Company. For the Prospective Clients the Agency will endeavor and carry out all actions deemed necessary so as for the Company to enter into a contractual relationship with Prospective Clients, including providing clarifications to the Prospective Clients in respect to the services offered by the Company and the Company’s business and policies.
5.7. The Agency represents and warrants that, in respect of the services contemplated under this Agreement, he shall comply with all applicable laws, statutes, regulations, and codes relating to anti-bribery and anti-corruption, by, amongst other things:
5.7.1. Maintaining adequate policies and procedures to ensure compliance with the applicable relevant requirements;
5.7.2. By signing this Agreement, the Agency certifies that he currently complies with the applicable relevant requirements. The Agency shall provide such supporting evidence of compliance as the Company may reasonably request;
5.7.3. Ensuring that any officer, employee, Partner, representative or such other person connected to the Agency complies with the applicable relevant requirements.
5.8. Whenever requested, the Agency will provide details and evidence of his status and business and of the licensing and/or authorisation requirements applicable to the Agency's activities at the Company’s request.
5.9. In the case of the Agency maintaining a website for promoting his business then without limitation to the obligation of the Agency to act as a mediator the following functionalities and information should be included:
a) A link should be available directing Prospective Clients to the Company’s Main Website;
b) The Company’s information and/or logo and/or banners and/or brand names are provided to Prospective Clients with the prior written approval of the Company. In such a case the logo should indicate that it is the property of the Company and indicate that the website is a tool for registration of Prospective Clients with the Company. It is noted that the Company’s information, banners and any material to be included in the Agency’s website must be provided by the Company as described in clause 5.10.
c) The Agency is under the obligation to disclose the capacity in which it is acting, when contacting or before dealing with any Prospective Client. In addition the Agency is required to place in an obvious location at its offices, including any branches it may possess, a clearly readable announcement, at which its capacity as Agency of the Company will be presented, alongside with the name of the Company and the Services to be provided.
5.10. The Company shall provide the Agency with all the necessary information and/or promotional material and/or any functionalities relating to the Company, that the Company wishes for the Agency to upload on his website. The Company shall also provide the Agency with any updates in relation to the information and/or promotional material and/or functionalities of the Company. The Company shall be entitled to conduct checks on the Agency’s website to ensure that the Agency does not upload any information and/or promotional material and/or functionalities of the Company which was not provided by the Company. The Agency is prohibited from making any alterations to the promotional material and/or functionalities provided by the Company, without Company’s prior written consent. 5.11. For the avoidance of doubt, the obligations of the Agency to solicit Prospective Clients under this Agreement are not lifted in cases where the Clients reach the Company through the website of the Agency.
5.12. The Agency undertakes that he will not use the name and/or brand and/or any Proprietary Property or Proprietary Information or the trading platform of the Company in his dealings with any Prospective Client except for the purpose of introducing the Prospective Client to the Company.
5.13. The Agency is not allowed and/or is restricted from holding and/or operating an account for any Client and/or carry on any trades for any Client and/or providing any other service to the Client other than the services agreed under the terms and conditions of this Agreement. In addition, the Agency is not allowed and/or is restricted from accepting and keeping any Prospective Clients’ funds to be used in relation to the service offered. The Agency’s provision of services to the Company is limited only to the introduction of Prospective Clients to the Company, unless otherwise been agreed between Parties, in written form.
5.14. The Agency agrees that he will not in any way represent and/or imply to any Prospective Client that the Company provides guarantees against potential losses and/or limits potential losses of any Prospective Client.
5.15. The Agency is not allowed and/or is restricted from attempting to collect fees established by the Company and/or any other related matter to the collection of fees for the Company. The Agency will not act as a Partner and/or representative and/or employee of the Company. The obligations of the Agency in relation to the Company is limited to the provision of intermediary services for the identification of suitable opportunities for the Company to provide the services including the generation of leads, creation of consumer interest to the products and services offered by the Company aiming to the successful introduction of Prospective Clients to the Company. For the Prospective Clients the Agency will endeavor and carry out all necessary actions so as for the Company to enter into an agreement with the Prospective Client, including providing clarifications to the Prospective Clients in respect to the services offered by the Company and the Company’s business and policies.
5.16. The Agency will promptly inform the Company of any regulatory and/or legal investigation or illegal interference into its commercial affairs, and will disclose to the Company details of any past sanctions imposed on the Agency during the last five (5) years, prior to the Effective Date of this Agreement.
5.17. The Agency acknowledges and agrees that he is responsible for the payment of all relevant fees, duties and/or changes and/or taxes arising from the course if his business.
5.18. The Company shall be responsible for providing Clients with any disclosures required under applicable law and regulations, including without limitation, those disclosures required by the rules or regulations of self-regulatory organisations or exchanges of which the Company is a member. If the Agency is required under applicable laws and regulations to provide certain disclosures, the Agency will be responsible for providing such disclosures
5.19. The Agency should regularly check the Company’s website for any updated Terms and Conditions of trading as well as any other disclosures or promotions issued by the Company and are available at the Company’s website.
5.20. The Agency is prohibited from communicating with a Potential Client who becomes a Client, unless otherwise been agreed between Parties, in written form.
5.21. In the event where the Agency is a legal entity, the Agency confirms and ensures that its employees shall execute and perform their duties and responsibilities in accordance with the provisions of the Agreement as well as the law and regulations for protection of data and any other legislation related to the provisions of their services.
5.22. The Agency must comply with any business related instructions or directions given by the Company in relation to the Company’s services.
5.23. The Agency assures that it will show best skill, interest, and high level of professionalism so as to satisfactorily fulfil his obligations arising under the Agreement. It is understood that the Agency shall undertake all necessary steps so as the Confidentiality obligations arising under this Agreement, to be extended to all employees, Partners and/or representatives of the Agency.
5.24. It is understood that the Agency is not allowed to provide any other services which are not outlined in this Agreement, including without being limited to investment advisory, consulting and advertising services, unless otherwise been agreed between Parties, in written form.
6. Agency Relationship and Activities
6.1. The Agency will provide intermediary services for the purposes of identifying suitable opportunities for the Company to provide the services and act as a mediator carrying out all tasks necessary with the aim to introduce to the Company such Prospective Clients willing to accept services offered by the Company, including the provision of intermediary services for improving the quality of the services offered by the Company. For the Prospective Clients the agencies will act a facilitator and it will endeavor and carry out all necessary actions, including negotiations with the Company and the Prospective Clients, so as for the Company to enter into a contractual relationship with the referred Prospective Client.
6.2. The Agency must provide the Prospective Client with his identification number, which will be provided to him during the opening of an Agency account with the Company.
6.3. The Agency, acting as an intermediary between Prospective Clients and the Company shall support, where and if applicable, with providing assistance in completion of account registration forms for opening an account with the Company, collection client document, assist the Prospective Clients with potential face to face meetings, following and assisting the Company with the implementation of its KYC and AML procedures that may include the safekeeping of documents and other asses provided by the Company or the Introduced Client.
6.4. For the scope to recognizing and detecting Prospective Clients that are suitable to the services the Company provides, the Agency shall proceed with the following intermediary services:
• Introduce and create consumer interest towards the YouKey Sales Platform, Vendor and Promoter Program the Company is prepared to provide to its Clients;
• Provide information and explanations to Prospective Clients with respect to the Company and the YouKey Sales Platform, Vendor and Promoter Program the Company is prepared to provide; If required by the Company, to distribute to Prospective Clients information with respect to the Company and the YouKey Sales Platform, Vendor and Promoter Program the Company is prepared to provide, through its website and or through the organization of presentations and/or analysis of these financial products and services, educational seminars, campaigns and other events;
• Facilitate and explain to Prospective Clients the Company’s business and policies
• Assist with the collection and process of commercial and other information which may be required by the Company for the purposes of the evaluation exercise of the Prospective Clients carried out by the Company before the conclusion of a contractual relationship between the Company and the Prospective Clients.
6.5. The Agency shall inform any Prospective Client through the Agency’s website, that he is considered the Company’s Client, and is subject to all of the Company’s rules, policies and operating procedures as any other Client of the Company who has opened an account with the Company and has completed the verification process.
6.6. Non-profit and credit funded accounts, cannot be assigned to the Agency.
6.7. Nothing in this Agreement shall create an employment relationship between the Company and the Agency or any other form of relationship such as joint venture, partnership or any other legal relationship between the Agency and the Company. The Agency shall receive remuneration of the provision of service of introducing Prospective Clients to the Company in accordance with Clause 7 of this Agreement and the terms and conditions hereof.
6.8. Where a Client has communicated to the Company that he wishes to be unlinked from the Agency, the Company shall, from the date of such communication, cease paying the Agency remuneration in respect of the Unlinked Client. Any existing (but unpaid) remuneration in respect of the Unlinked Client shall be transferred to the Agency, and the Agency shall have no further rights in respect of the Unlinked Client.
6.9. A Prospective Client shall not be considered as introduced by the Agency for the purposes of this Agreement, and no remuneration shall be provided by the Company to the Agency in relation to any Prospective Client, unless he provides the Agency’s identification number during the initial account application process, or sends a Written Notice within 5 (five) business days from the opening of his account to the Company prior any transaction occurring in the Prospective Client’s account.
6.10. A Prospective Client shall not be considered as introduced by the Agency to the Company and no remuneration shall be provided to the Agency for the specific Prospective Client, if:
6.10.1. the Prospective Client opens an account with the Company more than 5 (five) business days before the Prospective Client is introduced by the Agency; or
6.10.2. the Prospective Client already has an account with the Company more than 5 (five) business days before the Prospective Client is introduced by the Agency.
6.11. The Company has the right to reject any Prospective Client who does not meet the Company’s criteria as set out in the Account Opening Agreement. The Agency hereby acknowledges and agrees that a Prospective Client will not be considered as the Company’s Client and therefore as introduced by the Agency, if the Prospective Client is not approved by the Company in accordance with the Company’s policies and/or any applicable laws and regulations. In such a case Prospective Client will not be considered as introduced by the Agency for the purposes of this Agreement and no remuneration will be provided from the Company to the Agency in connection with the specific Prospective Client.
6.12. In the event that an introduced Client's archived account is subsequently restored, i.e. dormant/inactive accounts, the Agency's Reference ID will not be automatically applied to the restored account. Assignment of the account back to the agency’s Reference ID can be requested via email at agency@youkey.lk
6.13. The Agency will be solely responsible for any marketing and/or promotions costs or charges necessary for the provision of the intermediary services to the Company.
6.14. Subject to the terms and conditions of this Agreement and in accordance with the terms and conditions hereof, the Agency may actively mediate and as a result of the mediation actions refer Prospective Clients to the Company’s Main Websites(s) in order to facilitate explanations with regards to the financial products offered by the Company and agrees that all mediation activities carried out for the purpose of identifying, targeting and referring Prospective Clients to the Company must be professional, proper and lawful under applicable rules and laws.
7. Commission Program
7.1. Commission Program can be found on the Company’s website https://agency.youkey.lk/ Commissions are subject to forfeiture should the Agency and/or the introduced Client breach any of the obligations under this Agreement and/or any other agreement between the Company and the introduced Client, the Complementary Agreement.
7.2. The Agency is entitled to the Agency’s Commission structure as agreed and set out in the Appendix 1 of this Agreement which forms an integral part of this Agreement, and may not be subject to any changes unless agreed by both Parties otherwise. The Agency’s commission, which is either a fixed fee for a particular task or a percentage based commission on the net earnings from the fees received by the Company for the introduce Client, is provided as a consideration for the intermediary services provided and for actively acting as a mediator for the conclusion of a contractual relationship between the Company and the introduced Client.
7.3. An Agency who wishes to create different Campaigns may choose to receive different commission structure for all or some of his Introduced Clients. An Agency who wishes to create a Campaign should notify the Company via email at agency@youkey.lk
7.4. In case the Agency chooses to create a Campaign that will have a different commission structure than the one mentioned in Appendix 1 of this Agreement and the Company has consented, a Complementary Agreement needs to be signed by the Agency which will be provided to him by the Company.
7.5. Each Campaign created by the Agency following Company’s approval, will have its unique Agency Campaign ID (“ACID”).
7.6. A Client is deemed to be under a Campaign created by the Agency, if he opens an account with the Company by using the link(s) available in the agency’s’ information resources or if he expressly requests from the Company to manually attach his agency account to a specific Campaign created by the Agency.
7.7. The Agency shall be able to identify the Agency commission generated by each Campaign he has created via his Agency Portal area.
7.8. In case a Campaign is terminated by the Agency, it will be archived with immediate effect and cannot be re-activated. Once a Campaign has been archived, the following shall apply:
7.8.1. Any commission generated by a Client’s account that used to be under the archived Campaign, will adhere to the commission structure of Appendix 1 of this Agreement, if different;
7.8.2. Any new Client’s Agency Portal account opened under the archived Campaign, will adhere to the commission structure of Appendix 1 of this Agreement, if different.
7.9. The Agency’s commission on the account assigned under any Competition/Promotions is specified in the relevant Competition/Promotions Terms and Conditions.
7.10. The Company has the right to decrease the Agency commission structure at any time and shall provide prior notice to the Agency of such a decision.
7.11. The Agency hereby acknowledges and confirms that milestone bonuses are discretionary and the Company reserves the right to terminate this offer at any time with prior notice to the Agency.
8. Payments
8.1. The Agency shall receive payment as per the Commission Structure as per Appendix 1 which forms an integral part of this Agreement.
8.2. All payments will be due and payable in Sri Lankan Rupees, upon the mutual agreement of the Parties.
8.3. Unless otherwise agreed between the Parties in writing, payments will be done twice a month. In the event that the specified payday falls on Bank Holiday, the payout procedure will be completed on the next business day. Payout of Agency commission may take up to 2 (two) business days.
8.4. The Agency commission payment is processed to Agency’s Agency Portal. Commission paid to Agency Portal account may be withdrawn by the Agency by submitting the withdrawal request via one of the methods available on the Company’s website.
8.5. Agency commission payout is completed only once the commission amount exceeds Rs 1,000 (One thousand Sri Lankan Rupees) on the date of payout.
8.6. The Company reserves the right to void any unpaid and/or pending Agency commission generated from a particular transaction, in case the commission amount of that transaction has remained unpaid and/or pending for a period exceeding 365 (three hundred sixty-five) days following the completion date of that transaction.
8.7. All paid transactions and their corresponding entries that are older than 3 (three) months are automatically archived by the system and can be provided only upon the request.
8.8. Agency commission is only paid once the Agency actively mediated between the Company and the Client and the intermediary services provided resulted to the referral of at least 1 (one) Client to the Company.
8.9. In the case that a credit card chargeback is submitted by a Client referred by Agency, all Agency commissions generated by the specific account will be cancelled. If the chargeback occurs after the commission payment date, commissions will be removed retrospectively.
8.10. Notwithstanding the above, if the Company suspects or has reason to believe that a Client abused or acted in bad faith or identify any abuse on the transaction of the Clients, such as make transactions for the purpose of generating commission, the Company reserves the right to suspend the payment of fees due to the in relation to such Client or close the Agency’s account. This clause also applies in case the Agency is found to be in breach of any term of this Agreement.
9. Term
9.1. This Agreement will come into force from the Effective Date and will remain in force until it is terminated in accordance with clause 10.2 below.
10. Amendment and Termination
10.1. This Agreement may be amended from time to time. No modifications, supplement and/or amendment to this Agreement shall be binding except when made in writing by the Company and notified to the Agency. Any changes to the Agreement will not apply to any transaction performed prior to the date on which the changes become effective unless specifically agreed otherwise. The Agency shall receive a notification in advance of the proposed changes. The Agency shall confirm his acceptance of the proposed changes in order to continue his business relationship with the Company. Should the Agency disagree with the changes he may terminate the Agreement under paragraphs below
10.2. Either Party can terminate the Agreement by giving 5 (five) business days Written Notice to the other Party.
10.3. The Company reserves the right to terminate without notice, this Agreement or any rights of the Agency that may fall under the provisions of this Agreement, due to any malpractice, breach, failure or other significant event, including liquidation or insolvency, on the part of Agency. Such termination will be at the sole discretion of the Company.
10.4. The Company has the right to terminate this Agreement with immediate effect and upon prior notice to the Agency if the terms of this Agreement have been declared invalid or void by virtue of the legislative requirements and/or any recommendations issued by any regulatory authority. The Company undertakes to settle any of its obligations to the Agency until the date which the terms of the Agreement have been declared invalid or void.
10.5. The Company has the right to terminate this Agreement in case the Agency refers less than 3 (three) Clients within a 30 (thirty) days period form the Effective Date of this Agreement.
10.6. The Company has the right to terminate this Agreement is case an Agency has no active clients for 30 (thirty) consecutive days. An Agency’s own account cannot be considered and defined within the meaning of active account.
10.7. The Company has right to terminate this Agreement in case the Agency’s unpaid commission has not exceeded LKR 1000 within the past 6 months from the last payout date or from the activation of account. In such case, the Company has the right to void the unpaid commission unless agreed otherwise.
10.8. If the Company suspects or has reasons to believe that an Agency and/or an introduced Client is involved in any form of fraudulent activities and/or the Agency or the Client has involved the Company directly or indirectly in any type of fraud, the Company reserves the right to:
(i) Fully investigate using best judgment to determine the existence of fraud;
(ii) Terminate this Agreement with immediate notice to the Agency;
(iii) Terminate any agreement thereof concluded with any introduced Client;
(iv) Take any legal action against the Agency and/or the Client and/or claim any damages deemed fit by the Courts of the Republic of Cyprus.
10.9. Upon termination of the Agreement, the Agency is obligated to return to the Company any Company’s material used to provide the intermediary services to the Company and for the purposes of expanding his business (e.g. newsletters, banners, text, etc.). In the case where the Agency maintains a website and is using any Company materials, he is obligated to immediately withdraw such materials upon termination of the Agreement. In addition, any access to the Company’s database of promotional material is removed.
10.10. Upon termination of this Agreement the Company warrants to pay the Agency any fees due to the latter as set out in this Agreement provided that any such amount has been generated as a result of the proper fulfilment of the terms of this Agreement.
10.11. Furthermore, the Company may terminate this Agreement forthwith for cause, upon written notice to the Agency if: a. It becomes unlawful for the Company and/or the Agency to perform or comply with any one or more of the Agency’s obligations under this Agreement; or
b. The Agency ceases, in the Company’s reasonable opinion, to be fit and proper to provide intermediary services aiming to the conclusion of a contractual relationship between Prospective Clients to the Company, if the Agency no longer holds the necessary authorisation license or consent to perform the obligation under this Agreement or if he is prevented for any reason for carrying out the activities and/or obligations hereunder;
c. The Agency has been accused for any regulatory and/or legal investigation or illegal interference into its commercial affairs, or any past sanctions imposed on the Agency; and
d. In the event of any change in the applicable law or governmental regulations.
10.12. Each Party shall pay its own tax and duties.
10.13. Records, Reports:
10.13.1. It is the Agency’s sole responsibility to associate the Agency ID with Clients making use of the Services by using Tags provided by the Company or otherwise informing the Company in writing as to its client ID.
10.13.2. It is in Company’s sole responsibility and obligation to track the activity of the Clients and all traffic associated with the Agency’s ID for the duration needed for the Company to fulfil its obligations under this Agreement in full.
10.13.3. Throughout the Term the Company shall provide the Agency with an online report which includes information regarding the amount of commission paid.
10.14. Power, Authorization and Validity: Each Party represents that it has the right, power, legal capacity and authority to enter into and perform its obligations under this Agreement, and all agreements to which the Party is or will be a party that are required to be executed pursuant to this Agreement. The execution, delivery and performance of this Agreement have been duly and validly approved and authorized by the Party’s authorized organ (e.g. board of directors).
10.15. Litigation: Each party confirms that there is no claim, action, suit or proceeding pending or, to the Party’s knowledge, threatened, against the Party at law, in equity, by way of arbitration or before any governmental department, commission, board or agency that might have a material adverse effect on the other Party, nor is the Party aware of any reasonable basis thereof.
11. Termination for Non-Payment. Company may terminate this Agreement with immediate effect by giving written notice to the Agency if the Agency fails to pay License Fee, License Renewal Fees, Monthly Subscription Fess or any amount due under this Agreement on the due date for payment and remain in default not less than [thirty (30)] business days after being notified in writing to make such payment.
12. Written Notice
12.1. Any Written Notice under this Agreement may be made or given by any of the following means:
12.1.1. email;
12.1.2. facsimile transmission;
12.1.3. post; or
12.1.4. published on Company’s Websites.
12.2. All contact details provided by the Agency, e.g. address, email address or fax number as last notified will be used as applicable.
12.3. Any such Written Notice will be deemed to have been served:
12.3.1. if sent by email, within one hour after emailing it, unless a “not sent” or “not received” notice is received from email server;
12.3.2. if sent by fax, at the completion of transmission during business hours at its destination or, if not within business hours, at the opening of the next period of business hours, but subject to:
12.3.3. proof by the sender that the sender holds a printed transmission report confirming dispatch of the transmitted notice; and
12.3.4. the sender not receiving any telephone calls from the recipient within 1 (one) hour from the above time, that the fax has not been received in a legible form.
12.3.5. if sent by post, seven calendar days after posting it;
12.3.6. if posted on the Company News Webpage, within one hour after it has been posted.
13. Personal data and recording of telephone calls
13.1. The Company may use, store or otherwise process personal information provided by the Agency.
13.2. By entering into this Agreement, the Agency will be consenting to the transmittal of the Agency’s personal data (and/or have obtained consent from individuals working on the Agency’s behalf).
13.3. The Agency agrees that the Company may pass information about the Agency which the Agency has provided to the Company to help the Company process and/or analyse it as a part of fulfilling Company’s obligations under this Agreement. If the Agency does not wish the Agency’s personal data to be used for such purposes, the Agency shall give the Company Written Notice.
13.4. Such personal data may also be used for marketing purposes, or to conduct market research for the Company that may use the personal data to bring to the attention of the Agency products and services that may be of interest to the Agency. If the Agency does not wish the Agency’s personal data to be held for such purposes, the Agency shall give the Company Written Notice.
13.5. Telephone conversations between the Agency and Company may be recorded. All instructions received by telephone will be binding as if received in writing. Any recordings shall be and remain the sole property of the Company and will be accepted by the Agency as conclusive evidence of the instructions or conversations so recorded. The Agency agrees that the Company may deliver copies of transcripts of such recordings to any court, regulatory or government authority.
14. Confidentiality
14.1. The information which the Parties hold about Prospective Clients or Existing Clients is confidential and will not be used for any purpose other than as described in this Agreement. Information of a confidential nature will be treated as such provided that such information is not already in the public domain. Information of a confidential nature will only be disclosed to any person other than an associated entity of Company, in the following circumstances:
14.1.1. where required by law or if requested by any regulatory authority or exchange having control or jurisdiction over the Company or the Agency (or any respective associate);
14.1.2. to investigate or prevent fraud or other illegal activity;
14.1.3. if it is in the public interest to disclose such information;
14.1.4. at the customer’s request or with the customer’s consent; or
14.1.5. as provided in the Operative Agreements of the Company.
14.2. Except as otherwise provided in this Agreement, or as the Company may otherwise consent to in writing, the Agency will keep confidential and not disclose, or make any use of, except for the benefit of the Company, at any time, either during or subsequent to the termination of this Agreement, any Proprietary Information. The Company acknowledges and agrees that any Proprietary Information is given to the Agency in confidence, solely to permit the Agency to fulfil its obligations to the Company under this Agreement, and that such information derives actual or potential economic value by virtue of its confidentiality and nondisclosure to the public or other persons who could obtain economic value from their disclosure or use. The Agency shall not, under any circumstances, deliver, reproduce or allow any Proprietary Information, or any documentation relating thereto, to be delivered to, or used by, any person or entity whatsoever without prior written consent of a duly authorised representative of the Company.
15. Proprietary Property
15.1. Subject to terms and conditions of this Agreement, the Company hereby grants to the Agency, for the duration of this Agreement, a non-exclusive and revocable license to use Proprietary Property.
15.2. Proprietary Property, regardless of the author, shall remain the sole property of the Company and shall be accounted for and returned by the Agency to the Company on demand. It is expressly understood that the Agency’s license to the use or possession of Proprietary Property is to fulfil its obligations to the Company under this Agreement and that the Agency has no other right or proprietary interest in the Proprietary other than the license provided in this clause.
15.3. In the event of the termination of this Agreement for any reason, the Agency will promptly surrender, and deliver to the Company, Proprietary Property, including but not limited to, all materials, equipment, documents and data pertaining to his relationship with, or to any Proprietary Information of, the Company, including all copies thereof.
15.4. The Agency agrees to indemnify the Company and keep it indemnified at all times against all or any costs, claims, damages or expenses incurred, or for which they may become liable, with respect to any Proprietary Property infringement claim or other claim relating to the provision of services supplied by the Agency to the Company during the course of this Agreement
16. Force Majeure
16.1. Neither Party shall be liable for any breach of its obligations resulting from causes beyond its reasonable control i.e. force majeure events. A force majeure event includes but is not limited to the following:
16.1.1. Government actions, the outbreak of war or hostilities, the threat of war, acts of terrorism, national emergency, riot, civil disturbance, sabotage, requisition, or any other international calamity, economic or political crisis.
16.1.2. Act of God, earthquake, tsunami, hurricane, typhoon, accident, storm, flood, fire, epidemic or other natural disaster.
16.1.3. Labour disputes and lock-out.
16.1.4. A services moratorium having been declared by appropriate regulatory authorities or any other acts or regulations of any regulatory, governmental, supervisory, regulatory or supranational body or authority.
16.1.5. Breakdown, failure or malfunction of any electronic, network and communication lines (not due to the bad faith or willful default of any Party).
16.1.6. Any event, act or circumstances not reasonably within the Parties’ control and the effect of that event(s) is such that the Party is not in a position to take any reasonable action to cure the default.
16.2. If the Company determines in its reasonable opinion that a Force Majeure Event exists (without prejudice to any other rights under this Agreement) the Company may without prior Written Notice and at any time take or omit to take all such actions as the Company deems to be reasonably appropriate in these circumstances.
16.3. Neither Party shall have any liability to the other in respect of the termination of this Agreement as a result of force majeure.
17. Exclusion of Liability
17.1. The Company shall not be liable for:
(i) any loss, expense, cost or liability of any kind or nature suffered or incurred by the Agency unless such loss, expense, cost or liability of any kind or nature is suffered or incurred as a result of the Company’s gross negligence and/or fraud on behalf of the Company and/or the intended failure of the Company’s obligations under this Agreement; and/or
(ii) any loss, expense, cost or liability of any kind or nature suffered or incurred by the introduced Client where such loss, expense, cost or liability of any kind or nature is suffered or incurred as a result of the Agency’s gross negligence and/or fraud on behalf of the Agency and/or the intended failure of the Agency’s obligations under this Agreement;
(iii) for any obligation of the Company arising under any term, express or implied, under statute or common law.
18. Indemnity
The Agency agrees to hold and keep the Company indemnified against all actions, suits, claim, demand, settlement, recovery, costs and expenses which the Company may incur and which may have arisen directly or indirectly from the Agency’s act, omission, misrepresentation or negligence, failure to cooperate with the Company’s request or out of the breach of this Agreement.
19. Governing Language
19.1. This Agreement as well as any additional agreement hereto (both present and future) are made in English language. Any other language translation is provided as a convenience only. In the case of any inconsistency or discrepancy between original English texts and their translation into any other language, as the case may be, original versions of English shall prevail.
20. Governing Law and Jurisdiction
20.1. This Agreement shall be governed by and construed in accordance with the laws of the Socialistic Republic of Sri Lanka without regard to conflict of laws. Exclusive jurisdiction in any action or proceeding arising out of or relating to this Agreement and Appendices will be placed in the relevant courts residing in the Socialistic Republic of Sri Lanka ("Jurisdiction Courts"). Each of the Parties hereby irrevocably and unconditionally waive, to the fullest extent they may legally and effectively do so, any objection which they may now or hereafter have to the laying of venue of any such action or proceeding in any such Jurisdiction Courts, and waive, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such Jurisdiction Courts.
21. Dispute Resolution
21.1. In case there is any dispute arising out of or in connection with fulfilling the Agreement, the Parties shall do their best to settle such situations by means of negotiations.
21.2. In any case, before an action can be instituted in the court, the Parties shall undertake to observe claim. The claim shall be delivered by the injured Party within 5 (five) days from the time this Party knew or should have known of the fact that its rights were violated.
21.3. Claims in respect of lost profit shall not be considered.
21.4. All claims shall be sent by e-mail to the address: agency@youkey.lk
21.5. The Agency’s claim shall be considered within 10 (ten) business days.
21.6. The Company reserves the right to update the above terms at any given time, without prior notice.
22. Assignment
The Agency will not assign any rights or obligations guaranteed under this Agreement to a third party without the prior consent of the Company.
23. Appendix
Appendix 1 – Standard Agency and Agency Managers (Seller Managers and Promoter Managers) Commission Structure
1. A Client is deemed to have been introduced by an Agency mediated and provided intermediary services aiming to the conclusion of a contractual relationship between the Company and the Client and the Client he opens an account with the Company using the link(s) available in the agency’s information resources or via Agency Portal area by adding agency’s ID at the time of Account Opening.
2. The Agency Program also permits third-party individuals (“Managers”) for acting as mediator between Prospective Clients and the Company and carrying out activities deemed necessary for the conclusion of an agreement between the Company and its Client, as per the provisions of the present Agreement, for the purpose of introducing clients to the Company. Earned commissions shall be divided among the agency and the Managers who perform the tasks according to the paragraph 3 and 4. The Parties agree and acknowledge that such compensations, commissions, incentive and allowances vary as may time to time be determined by the management of the company with or without notice to you.
3. Service fees, Commissions and Revenue Shares for Onboarding and Managing Sellers on YouKey sales platform
3a. Registration of a new prospect client and list his first item on you key platform will generate a service fee of Rs 50 for the Seller Manager under an Agency. Agency Principal will always receive a 50% of what the managers earned hence the total earned income for the Agency will be Rs. 75
3b. Whereas the referred seller lists his other items on the sales platform, the seller manager earns Rs 20 per new listing as a compensation. Agency Principal will earn 50% of the said hence the total earning for the Agency is Rs 30 for an additional listing. This is limited up to maximum 10 more listings therefore the Agency is entitled to receive only for the first 10 additional listings of a newly referred seller to the sales platform.
3c. Agency managers are allowed to provide necessary support, guidance and mentoring services for the referred sellers hence the seller manager is entitled for Rs 200 compensation when a referred seller make his first successful sale on the YouKey sales platform. Agency Principal will earn 50% of the said hence the total earning for the Agency is Rs 300 for the first successful sale of a referred seller on Youkey sales platform.
3e.There are subscription plans for the sellers on the sales platform and once a referred seller subscribes and as he pays his commitment monthly the seller manager will earn commissions as follows. Rs 150 per month from a successfully paid startup package subscriber, Rs 500 per month from a successfully paid business package subscriber and Rs 1000 per month from a successfully paid premium package subscriber. With the agency principal 50%, the total agency earning for seller subscription payments will be, Rs 225 per month for startup subscriber, Rs 750 per month for business subscriber, Rs 1500 per premium subscriber.
4. Service fees, Commissions and Revenue Shares for Onboarding and Managing Promoters on YouKey sales platform
4a. Agency managers are allowed to provide necessary support, guidance and mentoring services for the referred promoters hence the promoter manager is entitled for Rs 300 compensation when a referred promoter make his first successful sale on the YouKey sales platform. Agency Principal will earn 50% of the said hence the total earning for the Agency is Rs 450 for the first successful sale of a referred promoter on Youkey sales platform.
4b.There are subscription plans for the promoters on the sales platform and once a referred promoter subscribes and as he pays his commitment monthly the promoter manager of an agency will earn commissions as follows. Rs 150 per month from a successfully paid starter package subscriber, Rs 400 per month from a successfully paid professional package subscriber and Rs 800 per month from a successfully paid unlimited package subscriber. With the agency principal 50%, the total agency earning for seller subscription payments will be, Rs 225 per month for starter subscriber, Rs 600 per month for professional subscriber, Rs 1200 per unlimited subscriber.
4c. Promoter manager is entitled to 2% revenue share from the income generated by a referred promoter on the YouKey sales platform. As an example, You are the Agency and you work alone. You will on board and register a Promoter on the Youkey sales platform. Assume that your referred promoter will generate monthly revenue of RS 50,000 for himself. In this case you are also entitled to 2% revenue share compensation of Rs 1,000. In addition to that Agency principal is also earning 50% of what the agency managers earns hence there will be additional Rs 500 for the agency. Total earning is 3% for the agency and entitle as long as the contact is active and unless or otherwise terminated under the terms of this agreement.
5. In the event that commissions are overpaid or are paid in error due to a system failure or human intervention, the Company reserves the right to deduct the amount in question from the Agency’s account with immediate effect and without prior notice. In the event that the balance of the Agency’s account is insufficient to cover the amount that has been overpaid/ paid in error, the Company will set the amount owed against future payments from the Client’s account until such time that the amount has been paid in full.
6. No Agency or Agency Manager commission will be generated unless the following are fulfilled:
a. Agency account opening is duly completed, and Agency is being approved;
b. Paid Agency license fees and monthly subscription fees in full
c. Agency accepts terms of this Agreement;
d. Terms of this Agreement are dully covered;
e. Complementary Agreement, if any, is being agreed and provided to Company duly signed.
7. In case the Company has any reasonable beliefs that the Agency is not complying with the Company’s the terms of this Agreement, the Company may delay the payment.
8. The Company correlates the agencies Commission amount earned by the agencies with the negative financial performance of the Company subject to financial penalties and/or clawback arrangements. The Company might deduct up to 100% of the total agency’s Commission if an Agency:
a. participated in or was responsible for conduct which resulted in significant losses to the Company; or
b. failed to meet appropriate standards of fitness and propriety.
c. Company received number of complaints from clients introduced by the Agency.
For each transaction or task that is executed by a Client who has been or is identified as introduced and/or referred by the Agency to the Company, the Agency will receive the commission as per the table available through the Agency Portal area.
All notices pursuant to this Agreement to Agencies shall be sent to the address or email address submitted by the parties to YouKey. All notices pursuant to this Agreement to YouKey, shall be sent via certified mail to: YouKey, No 31, Sri Soratha Mawatha, gangodawila, Nugegoda, Sri Lanka. Agency shall immediately inform YouKey of any changes in address, business name, or other contact information.