Lazada Affiliates Program - General Terms & Conditions

 

Version: 24 April 2023

 

Please click hereto access the previous version of the Lazada Affiliates Program – General Terms and Conditions (valid till 23 April 2023, such date included).

 

A. General 

 

1.   The Lazada Affiliate Marketing Program (“Affiliate Program” or “Program”) is organised by Recess Company Limited (having its Enterprise Code of 0308808576) (also referred to as “Lazada”), the operator of Lazada Platform in accordance with these General Terms and Conditions, as amended and updated from time to time (the “Affiliate Terms”). 

 

2.   When participating in the Affiliate Program, you (“you” or the “Affiliate”) may be entitled to Commissions whenever a product or service listed for sale on the Lazada Platform (“Product”) is purchased as a result of you introducing and promoting on the Approved Networks subject to the provisions under the Affiliate Terms. As used in these Affiliate Terms, “you” or “Affiliate” means the individual or entity using the Services (and/or any individual, agent, employee, representative, network, parent, subsidiary, affiliate, successor, related entities, assigns, or all other individuals or entities acting on your behalf, at your direction, under your control, or under the direction or control of the same individual or entity who controls you).

 

3.   By submitting the Sign-Up Form, taking part in the Affiliates Program and/or accessing the Portal, you agree to these Affiliate Terms, the Terms of Use, the Online Promotional Guidelines Lazada’s Branding Guidelines,  the terms of our Privacy Policyand any other applicable Affiliate Policies (all of which are incorporated into these Affiliate Terms by reference) as may be issued   and/or amended from time to time. If there is any conflict between such provisions, these Affiliate Terms shall take precedence over any other terms mentioned in this Clause 3, unless otherwise specified by Lazada at its sole discretion.

 

4. Unless you have express prior approval from Lazada or otherwise permitted by Lazada to participate in the Affiliate Program despite being any one of the following, you represent and warrant that you are:

(1)

not an employee, intern, freelancer or contractor of Lazada; or

(b)  of legal age and have the legal capacity to enter into and form contracts under any applicable laws. 

                                                                       

5. If we update or replace these Affiliate Terms, we will let you know via electronic means or any other means as we deem appropriate, which may include a notification made within the Portal or by email in accordance with Clause 76 below. If you use the Portal or continue to participate in the Affiliate Program after the effective date of such amendment to the Affiliate Terms, you are deemed to have accepted such amendment. If you don’t agree to the update or replacement, you can choose to terminate your participation in the Affiliate Program.

 

B. Access to the Services; Affiliate Account

 

6.   Your participation in the Affiliate Program is subject to your creation and our approval of an Affiliate’s account (an “Account”). An application shall be made through the Sign-up Form on the Portal. Lazada reserves the right to approve or reject any application for an Account at its sole discretion.

 

7.   You undertake to ensure that all Affiliate Data remains accurate and updated at all times during the term and your use and/or access of the Account, and/or the Portal. You further undertake that you will notify Lazada immediately via the Portal of any change in such Affiliate Data required to be disclosed under these Affiliate Terms or which had been provided in connection with your Account.

 

8.   You are only authorized to access or use the Portal through the Account and only as permitted by these Affiliate Terms and any applicable laws. You shall not access or use (or attempt to access or use) any part or the whole of the Portal without an Account or by means which have not been authorised by Lazada. Each Affiliate shall only have one Account.

 

9.   You acknowledge and agree that (a) you are solely responsible for and will at all times maintain the security and prevent the misuse of your Account, and/or other credentials provided to you by Lazada in connection with the Portal; (b) you shall be fully responsible for, and be bound by, any and all activity, access and use of the Portal, and any information, Data or communication referable to your Account, whether or not authorised by you; and (c) the Lazada Group shall (to the fullest extent permitted by applicable laws) be entitled to act upon, rely on and hold you fully responsible and liable in respect thereof as if the same were carried out or transmitted by you. 

 

10. If your Account is inactive for more than 365 consecutive days, Lazada reserves the right to close the Account permanently with immediate effect and without further notice or liability to you and cease your access to the Affiliate Program. Any balance in your Account (including any unwithdrawn Commission or any amounts payable by Lazada to you in connection with your Account) shall be forfeited upon the closure of such Account.  An Account becomes “inactive” if (a) you have failed to generate an Eligible Transaction entitled to a Commission through an Affiliate Link associated with your Account for more than 365 consecutive days, and/or (b) you have not accessed or logged into your Account for more than 365 consecutive days, whichever occurs first.

 

C. Participation in the Affiliate Program

 

11. Once you have successfully registered for an Account, you shall be required to complete and submit via the Portal, the details of the advertising media, including but not limited to website, social media networks or other online assets owned or operated by you or your Sub-Affiliates for approval by Lazada (once approved, referred to as the “Approved Networks”).

 

12.  Lazada will make available to you via the Portal a list of participating Products and/or campaigns participating in the Affiliate Program, for your introduction and promotion on the Approved Networks in accordance with the requirements of the Affiliate Program.

 

13.  Lazada may also make available to you the creative materials to introduce and/or promote the participating Products and campaigns, including but not limited to banners, pop-ups, or any product information shown in equivalent forms (“Materials”), which you shall use in the promotion of the Product and/or the campaigns.  You shall NOT modify these Materials in any way, except as expressly permitted by Lazada. Lazada reserves the right to change such Materials at any time without notice. You will be solely responsible for placing the Materials on the Approved Networks in a manner that complies with the requirements of the Affiliate Program. You are free to decide whether and how long to place these Materials on the Approved Networks, unless otherwise instructed by Lazada. 

 

14.  You shall be solely responsible and liable for creation, advertisement and promotion of the Affiliate Content (including advertisement or promotion using your social media activities including but not limited to Facebook, Pinterest, Twitter, Instagram, Tiktok), and ensuring that such Affiliate Content complies with all policies and guidelines as notified by Lazada from time to time (including the Online Promotional Guidelines and Lazada’s Branding Guidelines). In the case of Facebook, advertisements and promotions should be run through a “Fan Page” only and not through a “Personal Page” in accordance with Facebook’s policy. Notwithstanding the foregoing, you agree that before you blog, post, submit, tweet, upload or otherwise transmit any Affiliate Content as part of the Affiliate Program, Lazada may require you to submit such Affiliate Content to Lazada for review. You agree that Lazada may request you to modify, delete or remove any Affiliate Content that Lazada deems necessary, and you shall promptly comply with all such requests.

 

15.  You will be provided with a link to the participating Products or campaign in the form of the exact URL that identifies you (“Affiliate Link”) which you shall use to promote the Products or campaigns. You agree to implement, operate, maintain and update the Affiliate Link in accordance with Lazada’s instruction. Failure to do so may negatively impact the tracking of Eligible Transactions and/or Commissions.  You are only eligible for Commission attributable to Eligible Transactions that are derived from the Affiliate Link that is made available to you. You agree to provide prompt and reasonable cooperation to Lazada in responding to any issues raised by Lazada regarding the distribution of Affiliate Links; and you shall promptly cease further distribution of such Affiliate Links on any Approved Networks and/or any third-party sites (including third party social media networks) if so required by Lazada. 

 

16. If you desire to discontinue the promotion of any particular Product, you may discontinue the activity by removing the relevant Affiliate Link and the relevant Materials from your Approved Networks at any time.

17.  You may be allowed to engage other entities or individuals (“Sub-Affiliates”) to carry out the services under this Program on your behalf, provided that you shall have declared the relevant Sub-Affiliates, provided information on the identification of the Sub-Affiliates segment, activity and insertion of tracking parameters of unique identifiers to allow tracking of performance and obtained Lazada’s express prior written consent on the same. You undertake to procure that your Sub-Affiliates be bound by and strictly comply with these Affiliate Terms which for the avoidance of doubt, include (without limitation) the Terms of Use, the Online Promotional Guidelines, Lazada’s Branding Guidelines, the terms of our Privacy Policy and any other applicable Affiliate Policies, and you shall nevertheless be primarily responsible for the actions of your Sub-Affiliates and all breaches (if any) by your Sub-Affiliates of any provision in these Affiliate Terms. Lazada is entitled to prohibit certain Sub-Affiliates from participating in the Affiliate Program for any reason whatsoever. In the event of any actual or alleged breach by an identified Sub-Affiliate, you shall cooperate in good faith and promptly provide Lazada with all details and information reasonably requested by Lazada regarding the Sub-Affiliate in connection with the investigations.

18. The Affiliate Program and the Portal are made available to you for the sole purpose of business transactions as permitted under these Affiliate Terms. You may only use the Portal and participate in the Affiliate Program for business purposes, and not as a consumer.

 

D. Lazada’s Services (“Services”)

 

19. Lazada shall make available to you via the Portal a list of Products and/or campaigns which are participating in the Affiliate Program, and the supporting Materials which you may use to promote such Products or campaigns.

 

20. Lazada will provide you with the tools, including the Affiliate Link, that will measure your performance under the Affiliate Program. To provide you with post back information on your performance under the Affiliate Program, Lazada may track and report your activities (and that of your Sub-Affiliates) in the Affiliate Program via the Lazada Reporting System, and will make accessible to you consolidated statistics and reports on your performance. When requested by the Affiliate and deemed necessary, a technical integration can be established between the Portal and the Affiliate’s system to allow the Affiliate to obtain its own statistics and reports. Lazada may, in its sole discretion, change the scope of the historical data stored in the Portal and/or provided to you.

 

21.  Lazada (or another member of the Lazada Group) will only be liable to pay to you the Commission on Eligible Transactions which are automatically tracked and reported by our Lazada Reporting System in the context of the Affiliate Program. If you believe that your payment advice contains an error, you must notify Lazada within fourteen (14) days after the issuance of each monthly payment advice (or within such period otherwise prescribed by Lazada as part of the Affiliate Program), or the payment advice will be deemed accepted by you and shall be final. Lazada reserves the right to review the detail as notified by you in good faith at its sole discretion and Lazada’s discretion shall be final.

 

22.  Lazada reserves the right, but is not obligated to:

(1)

monitor, screen or otherwise review any activity, content or material on the Approved Networks or associated with your Affiliate Link. Lazada may in our sole and absolute discretion, investigate any violation of these Affiliate Termsand/or any other applicable Affiliate Policies and may take any action as we deem appropriate (including but not limited to requesting the removal of any content that we, in our sole discretion, find to be in violation of these Affiliate Terms and/or any other applicable Affiliate Policies or otherwise objectionable);

(2)

prevent or restrict your (or your Sub-Affiliates’) access to any part or the whole of the Portal and/or the Affiliate Program, including without limitation, where Lazada deems in its sole discretion that any action is in contravention of these Affiliate Terms and/or applicable laws;

(3)

report any activity we suspect to be in violation of any applicable laws to the appropriate authorities, and to co-operate with such authorities; and/or

(4)

to request any information and data from you in connection with your use of the Services and/or access of the Portal at any time and to exercise our right under this Clause if you refuse to divulge such information and/or data or if you provide or if we have reasonable grounds to suspect that you have provided inaccurate, misleading or fraudulent information and/or data.

 

23.  The Affiliate Program, Lazada Platform, the Portal and the Services and tools offered thereon (including but not limited to any Material and the Affiliate Links), are provided on an “as is” and “as available” basis. You agree that your participation in the Affiliate Program, your use of the Lazada Platform, the Portal and the services and tools offered is at your sole risk. While Lazada endeavors to provide accurate information, there may be information on the Portal or otherwise provided by Lazada or on our behalf or by a third party in connection with the Services that contains technical or typographical errors, inaccuracies, or omissions. The Materials could be inaccurate or become inaccurate as a result of development occurring after their respective dates. Lazada is not obliged to verify or maintain the accuracy or completeness of such information or that such information remains updated at all times.

 

24.  To the fullest extent permitted by applicable laws, Lazada makes no representations or warranties of any kind, implied, express or statutory, in conjunction with the Affiliate Program, Platform, the Portal and the services and tools offered thereon including without limitation the warranties of accuracy, non-infringement of third-party rights, title, merchantability, satisfactory quality, fitness for a particular purpose or that your participation in the Affiliate Program, and use or access to the Lazada Platform, the Portal or the tools and services will be uninterrupted or error-free. Lazada’s acceptance or approval of any of your Material, Approved Network, information or otherwise submitted by you under or pursuant to these Affiliate Terms shall not constitute Lazada’s endorsement of the accuracy, completeness and compliance with applicable laws of the same.

 

E. Tracking and Attribution

 

25.  You agree that tracking and reporting of transactions under the Affiliate Program are being carried out by Lazada Reporting System and Lazada may track and monitor your activities (and that of your Sub-Affiliates and referred Customers) in connection with the administration of the Affiliate Program. For the Lazada Reporting System to track the transaction back to each specific Affiliate, a visitor which click-through from your Affiliate Link must have cookies enabled.    

 

26.  For a transaction to be eligible for Commission (“Eligible Transaction”), it must involve purchase of the Product by a Customer on the Lazada’s Platform within the first click-through session from the Affiliate Link and/or for the relevant Attribution Window thereafter which meets the following requirements:

(1)

is directed from the URL of the Affiliate Link as located or presented on the Affiliate’s Approved Networks;

(2)

the order has been delivered to the Customer and has been fully paid for by the Customer;

(3)

has not been returned by the Customer within the permitted return or refund period from the date of receipt of the Products;

(4)

is not arising out of or in relation any Invalid Transactions; and

(5)

any other requirements as may be set out in these Affiliate Terms, any governing terms or policies for the Affiliate Program or otherwise communicated by Lazada on the Portal from time to time.

 

27.  An “Invalid Transaction” includes but is not limited to the following:

(1)

fraudulent, abusive or abnormal traffic transactions, identified by Lazada;

(2)

improper or abusive transactions or activities performed through collusion by the Affiliate or Sub-Affiliate with the Seller using the Affiliate Link or through any other means which Lazada may reasonably deem as potentially fraudulent behavior;

(3)

any cancelled, incomplete, returned or refunded transactions and orders;

(4)

orders made with the intention of reselling the purchased Product;

(5)

use of non-permitted traffic and sources (including traffic directed from a network other than an Approved Network); and/or

(6)

any transaction which does not comply with the Affiliate Policies.

 

 

For the purposes of Clause 27(a), “fraudulent transactions” include, without limitation, any transaction or action that (A) intentionally attempts to create clicks, sales, leads, or click-throughs using robots, frames, iframes, scripts, or manually “refreshing” of pages or other similar methods, for the sole purpose of creating referrals; (B) involves traffic hijacking (for example, where the Affiliate hijacks an attribution); (C) involves other traffic abnormalities (such as suspicious traffic source, conversion, distribution, etc.) which are deemed as fraudulent or invalid by Lazada’s system analysis; (D) is created (or procured to be created) in bad faith by the Affiliate with the intention to artificially inflate any Commission payable by Lazada; (E) involves interface brushing, simulator etc. to generate false clicks or app launches; (F) involves order brushing, voucher abuse, buyer and seller collusion or any other fraudulent activities which are aimed at generating false orders; (G) infringes others’ legitimate rights or interest or is not compliant with applicable laws or regulations; or (H) such other actions as may be determined by Lazada.

 

28. You agree and acknowledge that any Invalid Transaction and any purchase made that is associated with such Invalid Transaction shall be deemed as unqualified, and Lazada shall not be charged for or be liable to pay Commission for such Invalid Transaction and/or any purchase associated thereof. To this end, Lazada shall have the right to chargeback for activities arising out of or in connection with Invalid Transactions (whether directly or indirectly related to Affiliate, Sub-Affiliate or otherwise) to you or to recover from you the costs, Commissions or any other amount already paid to you with respect to the Invalid Transactions.

 

29.  Lazada reserves the right to impose additional requirements (including but not limited to requiring the provision of further document, evidence or information from you) from time to time at Lazada’s sole discretion before a transaction shall be recognized as an Eligible Transaction in respect of which Commission is payable.

 

30.  If a Customer has interacted with more than one marketing channel in connection with an Eligible Transaction, Lazada attributes the Eligible Transaction to the marketing channel which was the last clicked referral by the Customer which satisfies the requirements stipulated by Lazada. 

 

F. Commission  

 

31.  You shall be eligible to receive Commission based on rates as published in the Portal for Eligible Transactions concluded via your Affiliate Link provided that Lazada is satisfied that you have complied with the Affiliate Terms and all other policies and guidelines as notified from Lazada from time to time. 

 

32.  You agree that Lazada may from time to time modify:

(a)      the Commission rates (“Commission Rates”);

(b)      the Commission structure (“Commission Structure”) including without limitation, by: (i) adding or reducing the Commission Rates to selected Affiliates who satisfy certain eligibility criteria and/or (ii) imposing any other requirements in order to incentivize best practices and reward outstanding results; and/or

(c)      the criteria for Eligible Transaction (“Eligible Transaction Criteria”) for which Commission is payable

by the publication of the revised Commission Rates, the Commission Structure and/or the Eligible Transaction Criteria on the Portal or by notification via any other electronic means. Amongst others, the Commission Rates and Commission Structure may vary depending on the Product category, time within which the Customer visits the Product page, and/or types of Customers.

 

33.  Unless indicated otherwise by Lazada:

(a)      any amendment to the Commission Rates for a listed Product or campaign shall take effect on the next calendar day;

(b)      any amendment to the Commission Structure shall automatically take effect seven (7) days after the publication of such change on the Portal or notification by email in accordance with Clause 76; and

(c)      any amendment to the Eligible Transaction Criteria shall automatically take effect on the effective date of such amendment as may be determined by Lazada and published on the Portal or notified in accordance with Clause 76.

You are required to keep yourself up to date on the applicable Commission Rates, the Commission Structure and/or Eligible Transaction Criteria at all times.

 

34.  The Commission may be paid by Lazada (in the case of a “Platform-funded SKU”) and/or the sponsoring Seller (in the case of a “Sponsored SKU” by a participating Seller in the Affiliates Program). We may from time to time impose an order cap, where Commission payable in each Eligible Transaction is capped at such amount notified to you. In respect of Platform-funded SKU, Commission is payable only in respect of the first order made within the Attribution Window. Additional criteria may apply from time to time for any of the Sponsored SKUs and/or Platform-funded SKUs. A referral which does not meet the requirements of a Sponsored SKU may still be eligible for Commission as a Platform-funded SKU as determined by Lazada at its sole discretion.

 

35.  You may log in to the Portal to view your accumulated Commissions (if any). You agree that in the event of any discrepancy of data between the Lazada’s Reporting System and the Affiliate’s system, Lazada’s data shall prevail, and Affiliate shall not dispute any such discrepancy. Affiliate understands and agrees further that under no circumstances will data from the Affiliate’s systems be used to measure payable amount to Affiliate. Lazada reserves the right to revise any statistics or report at any time, if in Lazada’s determination, such report or statistics contain an error or otherwise requires adjustment. Such revision may affect the amount of Commission you are entitled to relating to the tracked activities. Lazada will notify you of any reporting errors through the Portal and/or the contact information that you have provided in the event that any adjustments affects your Commission.

 

G. Payment 

 

36. In order to receive payment under the Affiliate Program, you must have, amongst others: (i) agreed to these Affiliate Terms (which for the avoidance of doubt, include (without limitation) the Terms of Use, the Online Promotional Guidelines, Lazada’s Branding Guidelines, the terms of our Privacy Policy and any other applicable Affiliate Policies); (ii) completed all steps necessary to create your Account in the Portal in accordance with our instructions; (iii) have a single, valid and up to date bank account details for payment transfer associated with the Account which details are updated and accurately inputted in the Portal; and (vi) where required, provide all requested information, ensuring all requested information are valid and up to date and/or completed including (among others) any and all required tax and other KYC documentations in order for Lazada to process any payments that may be payable to you. Amount payable to you shall be in local currency and you agree that to the extent permitted by the law, the currency exchange will be calculated based on the relevant bank’s prevailing rate on the payment date when payment is made by Lazada to your designated bank account.

 

37.  Lazada will issue a monthly payment advice for all Commission payable in respect of the previous calendar month provided that the unpaid Commission accumulated up to the last day of the month is equal to or greater than the specified minimum amount notified to you from time to time by Lazada (the “Minimum Sum”). If the Minimum Sum is not satisfied, Lazada reserves the right to withhold any amount due to you, which will continue to be retained as a balance within the Account. Lazada will only pay the Affiliate within the subsequent payment cycle when the accumulated Commission within the Account meets the Minimum Sum. 

 

38.  All pay-out quoted in the monthly payment advice are inclusive of Value Added Tax, Goods and Services Tax, Sales and Service Tax or other similar tax (“VAT”). You are solely responsible to ensure necessary tax registration and application of such taxes on the services supplied and liable for all taxes and penalties arising from misrepresentation and/or inaccuracy based on the prevailing tax laws. If required, (a) you must provide Lazada with a valid tax invoice detailing the services supplied within fourteen (14) days from the date of Lazada’s payment advice issued; and (b) if requested by Lazada, you must produce evidence or documentation of tax registration(s). If payment made to the Affiliate is subject to withholding taxes, Lazada shall deduct such taxes from the Commissions, and pay the Affiliate the net amount.  

 

39.  You shall pay and be responsible for your own corporate and income taxes assessed on the pay-out, Commissions and other profits, income and gains in respect of your participation in the Affiliate Program and any services related thereto. Should any pay-out be subject to withholding taxes or personal income taxes (for individuals), Lazada shall deduct the applicable withholding tax from any payments, and pay you the amount net of any such withholding taxes. Upon your request, Lazada shall provide you with a certificate (or any similar document) as proof of payment of the applicable withholding taxes. When requested, you will provide to Lazada upfront your tax code and any requisite declaration for Lazada to determine the applicability of withholding tax. You are liable for all taxes and penalties arising from misrepresentation and/or inaccuracy in the declaration provided by you as required by prevailing tax laws.

 

39A.      Subject to your compliance with these Affiliate Terms, and in particular, Clause 36, you will be paid within thirty (30) days from the provision of a payment advice to you (or, if required, from the date of an undisputed invoice), provided that the pay-out must be at least equal to the Minimum Sum. Pay-out shall be inclusive of any prevailing consumption tax, including but not limited to VAT.

 

 

40. All payment made from Lazada to the Affiliate will be in the form of direct bank transfer to the bank account provided by the Affiliate or through such other method as stipulated in our payment advice. Lazada is solely responsible for all incurred financial institution processing fees save for overseas bank transfer (if applicable) in which the said processing fees will be borne by the Affiliate. Lazada reserves the right to deduct from the pay-out to the Affiliate, additional processing fees incurred due to incorrect information supplied by the Affiliate and/or any unsuccessful payment transfers.

  

41.  You agree and acknowledge that Lazada reserves the right, exercisable at its sole discretion, and without prejudice to any other rights or remedies that Lazada may have, to: 

(1)

cancel, terminate, not to pay, or not to reward you for any transaction where Lazada deems or has grounds to believe that it is not an Eligible Transaction (for example, should any of the situations in Clause 27 apply), orit is associated with an Invalid Transactionor where you have committed any act that is fraudulent or illegal or in connection with any criminal activity, or any breach of any agreement or policy with Lazada when performing the services under the Affiliate Program. In such cases, you agree that you are not eligible for any Commission payable for the relevant transactions, and you will not be entitled to claim and hold Lazada responsible for any refusal, delay, suspension, confiscation or cancellation of any payment to you;

(2)

deem as chargeback: (i) any pending payment owed to the Affiliate; (ii) the total amount of the pay-out for the period since the breach was found; and/or (iii) any future pay-out earned by the Affiliate proven to have originated from the breach or violation or in connection with an Invalid Transaction; and

(3)

offset any amount payable to the Affiliate or Sub-Affiliate against any amount due and owing by the Affiliate to Lazada under these Affiliate Terms or any other agreements entered into between Lazada or Lazada’s affiliate (on the one hand) and the Affiliate or Sub-Affiliate (on the other hand) (including in the case of an Affiliate or Sub-Affiliate who is also a Seller on one more Lazada platforms, any amounts which may be owed by the Affiliate or Sub-Affiliate in such capacity).

 

41A.      If any excess payment has been made to you for any reason whatsoever, we reserve the right to adjust or offset the same against any subsequent Commission payable to you under these Affiliate Terms. 

 

42.  Notwithstanding anything to the contrary in these Affiliate Terms, if:

(1)

any of the requirements set forth in Clause 36 remain outstanding for more than 365 days following the issuance of the payment advice;

(2)

any payment that remains outstanding after a period of 365 days after the date of issuance of the payment advice relating to such amount for any reason whatsoever, including but not limited to the following instances:

a.

where the Affiliate failed to issue a valid tax invoice, if required;

b.

where the Affiliate failed to complete and furnish the applicable required valid declarations and/or valid documents as mentioned in Clause 36 and Clause 39;

iii.

Affiliate does not maintain valid Affiliate Data/ Affiliate bank account details are not updated/ Affiliate bank details are inconsistent with Affiliate’s sign-up details; and/or

iv.

the amount did not meet Minimum Amount;

(3)

it is or becomes unlawful for Lazada to make the payment and/or for the Affiliate to receive the payment,

then the Affiliate’s right to receive Commission arising from and in connection with this Affiliate Program shall be forfeited, and the Affiliate agrees that it shall not be eligible for any payments arising out of or in connection with this Affiliate Program. In such circumstances, the Affiliate will not be entitled to claim and hold Lazada responsible for any refusal, delay, suspension, confiscation or cancellation of any payment due to the Affiliate (or the Sub-Affiliate(s) as applicable).

 

42A.      For the avoidance of doubt, Affiliate remains liable to compensate Lazada for all losses suffered in the aggregate by Lazada due to the Affiliate’s (or the Sub-Affiliates’) breach of these Affiliate Terms  (including the Terms of Use, the Promotional Guidelines, Lazada’s Branding Guidelines, the terms of our Privacy Policy and any other applicable Affiliate Policies), and any quantum exceeding the amount recoverable by Lazada by way of chargeback or deduction from amounts payable to Affiliate, shall be recoverable at Lazada election by way of debt owed by Affiliate. 

 

H. Representation, warranty and undertakings of the Affiliate

 

43.  You represent, warrant and undertake (and you shall procure that your Sub-Affiliates represent, warrant and undertake on substantially similar terms) that:

(1)

you shall (i) comply with all applicable laws and regulations, including all anti-bribery, anti-corruption and tax laws relating to your activities; (ii) be responsible for and pay all taxes and other charges arising out of or associated with these Affiliate Terms or your participation in the Affiliate Program; and (iii) obtain all necessary rights, licenses, permits, or approvals required for the promotion of the Products on the Approved Networks;

(2)

you have no prior or existing obligations or commitments (and will not accept or assume any other obligations or commitments) that may conflict or interfere with the performance of your obligations under this Affiliate Program;

(3)

you will always comply with the Affiliate Terms, and all other policies and guidelines imposed by Lazada from time to time (including but not limited to the Online Promotional Guidelines and Lazada’s Branding Guidelines) in respect of your participation in the Affiliate Program;

(4)

you will use legally compliant measures and techniques of introduction to promote the Affiliate Link on your Approved Networks only, and solely bear all responsibilities for such introductions and promotions;

(5)

you will use your best efforts to detect and prevent unusual activity involving fraudulent, abusive or abnormal traffic transactions;

(6)

you have the right to use any material contained in your promotional messages delivered by you pursuant to the Affiliate Program, including, but not limited to trademarks, service marks, copyrighted information and any other intellectual property, and you will not infringe any third-party Intellectual Property Rights and neither will you use, copy, publish, re-distribute or modify any third party’s content (including other Affiliate’s content), whether in connection with the Affiliate Program or otherwise, without their prior authorization;

(7)

you will not conduct activities such as gambling, sweepstakes, raffles and lotteries, or any other illegal, immoral or antisocial activities in your promotion of the Products;

(8)

all work products delivered by you pursuant to the Affiliate Program in the promotion of the Affiliate Link will be provided in a professional manner, of good quality and suitable for the purposes as required by Lazada, free of malicious code and virus, and free of any Prohibited Content;

(9)

any Affiliate Content you blog, post, submit, tweet, upload or otherwise transmit as part of the Affiliate Program (i) does not make reference to a competitor of Lazada; and (ii) does not make reference to or involve any politically sensitive affair or culturally insensitive content (whether domestic or international).

(10)

you will not, whether directly or indirectly, intentionally or unintentionally, perform any act which is, from the perspective and in the sole opinion of Lazada, fraudulent and intended to profit at the expense of Lazada (beyond the scope of these Affiliate Terms) when participating in this Affiliate Program;

(11)

you undertake not to use secondary affiliate channels, any third party or any method other than the method specified in these Affiliate Terms to promote the Affiliate Link for Lazada without Lazada’s prior written consent;

(12)

in the course of your introduction or promotion, you will comply with all applicable data protection and privacy laws, contact only individuals who have given their active consent to be directly contacted and will not engage in any act of enticement, solicitation, coercion, or any illegal conduct when performing the duties as specified in these Affiliate Terms; and

(13)

you shall not do anything which is detrimental: (i) to Lazada and/or Lazada's affiliate’s rights or to Lazada and/or Lazada’s affiliates’ Intellectual Property Rights; or (ii) to the reputation, image, value or goodwill of Lazada and/or Lazada's affiliates.

 

44. Use of Electronic Direct Mails (“EDM”)

(1)

You must not use EDM to conduct promotional activities for Lazada except with Lazada’s prior written approval, and all emails must be approved by Lazada prior to sending.

(2)

You are responsible for knowing the source of all addresses contained in the email lists used by you, and you are further prohibited from sending emails to addresses acquired by means of an automated generator, script or any other automated means.

(3)

You shall only send emails to recipients who have given affirmative consent by expressly agreeing to receive such messagesand you shall immediately cease such activity if the recipients have withdrawn their consent.

(4)

You must clearly communicate that all EDMs and emails are sent from the Affiliate and not directly from Lazada, and neither you nor any of your Sub-Affiliates shall be permitted to use the “Lazada” brand name or the brand name of any Seller in email addresses, URLs, source code, and in the header of emails.

(5)

You shall be fully responsible for ensuring that any EDM or promotional activity carried out by you or your Sub-Affiliate(s) complies with the applicable laws (including without limitation any applicable data protection and privacy laws), and shall be solely liable in the event of any investigation, breach of applicable laws, and/or any request or complaint by a third party regarding such emails.

(6)

No emails transmitted by you hereunder may include falsified header, source, destination or routing information. Such information shall be considered falsified if it is altered or concealed in a way that would impair a person’s ability to identify, locate or respond to the person who initiated the message. You shall not use false email registrations, false IP addresses or any other false identifying information in connection with email transmissions or retransmissions of emails for the purpose of concealing the email’s origin.

(7)

Lazada will not be responsible for any EDM, or any request or complaint of any third party arising from you or your Sub-Affiliate’s sending of any EDM. You must indemnify Lazada from all costs, expenses or losses arising from the Affiliate’s breach of a third party’s requests or violation of the above-mentioned restrictions.

(8)

You must ensure that all email addresses have been created based on the double-confirmation-email, taking into account all necessary restrictions under applicable laws.

 

45.  You are responsible for the content and activities on the Affiliate’s Approved Networks, and you will not post on the Affiliate’s Approved Networks any Prohibited Content. You are strictly prohibited from presenting such Prohibited Content in connection with the Affiliate Links or Lazada Group in general, whether on or through your Approved Networks, any site linked from the Affiliate’s Approved Networks or otherwise. 

 

46.  When introducing or promoting the Affiliate Link on the Approved Networks, you shall not create and / or maintain websites / application programs that could lead to risks of confusion or a perception of association with Lazada’s brand image or trademark on websites / or mobile applications. You must avoid creating any impression or implication whether on a mass or individual level that the Affiliate’s Approved Networks are associated with Lazada under this Affiliate Program, or the operators of such Approved Networks are related to Lazada in any way under this Program.

 

47.  You are responsible to Lazada, for ensuring that the promotion of the Affiliate Link and of Lazada on the Affiliate’s Approved Networks does not violate, whether directly or indirectly, the right of any third parties, as well as the service terms or policies of the technical platform systems of the provider of such Approved Networks. 

 

48.  You must ensure that cookies will be set only when the Affiliate Link is being displayed on the Affiliate’s Approved Networks and that users will only click on Affiliate Link voluntarily and consciously. Using layers, add-ons, iFrames, pop-ups, pop-unders, site-unders, auto-redirecting ads which automatically redirects users to an advertiser’s websites without user triggers or actions (such as clicks, touches), cookie dropping, postview technology, misleading ads which cause the users to misunderstand and click to display a certain content, are not allowed and strictly prohibited. In particular, for campaigns, advertisements on application programs that lead to forced installations of advertiser applications are strictly prohibited. For the avoidance of doubt, forced installation includes actions that do not require the users to give their consents or approvals before starting such downloads / redirections. 

 

49.  You will not be allowed to purchase any Product through the Affiliate Link for resale or commercial use of any kind. Similarly, you may not ask or encourage any organization or individual to purchase any Product through the Affiliate Link for resale or commercial use of any kind. 

 

50.  You may only promote vouchers, cashback or any other incentives that Lazada has approved explicitly for Affiliates or communicated by means of Affiliate newsletters. The promotion of other vouchers, cashback or incentives including but not limited to end customer newsletters, print advertisements or customer service contacts, shall be strictly prohibited. 

 

50A.     You shall not abuse or use in fraudulent manner any incentives (including but not limited to any vouchers, cashbacks or other types of rewards or incentives) that you receive in connection with your participation in the Affiliate Program. Lazada reserves the right, at any time, to validate and check your use of such incentives and if you are not able to provide the appropriate evidence / information as requested by Lazada for validation purposes, you will lose your entitlement to such incentives (if any) and Lazada shall not be obligated to offer any replacement. Lazada reserves the right to prevent or not allow any Affiliate from collecting any incentives when Lazada has grounds to believe that the Affiliate has committed fraud, illegal acts or when the Affiliate violates any agreement with Lazada or any policies issued by Lazada from time to time. In such cases, the Affiliate will not be entitled to either claim or hold Lazada responsible for any rejection, delay, suspension, confiscation or cancellation of the incentives to the Affiliate.

 

51.  You are not permitted, whether directly or indirectly, to perform any advertising, promotion, marketing or action for any organization or individual on the Portal, Lazada Platform and/or any other IT resources and / or any intellectual property rights of Lazada. For illustration purpose, your setting up extensions on the website interface as well as your inclusion of the Affiliate Link in the comment, product description or any position on the Lazada’s Platform (including website interface and mobile application) is not permitted. 

 

I. Compliance with Laws

 

52.  In performing these Affiliate Terms, Affiliate shall, and shall ensure that its principals, owners, directors, officers, employees, consultants, affiliates, suppliers, agents, Sub-Affiliates and subcontractors shall, strictly comply with all applicable laws, treaties, ordinances, codes and regulations, and specifically with respect to any personal data protection, immigration, import and export, and health, safety and environmental, laws, ordinances, codes and regulations of any jurisdiction (whether international, country, region, state, province, city, or local) where these Affiliate Terms shall be performed. Upon Lazada’s reasonable written request, Affiliate shall provide any written certification of compliance required by any applicable state or local law, ordinance, code, or regulation.

 

53.  Affiliate (including its principals, owners, directors, officers, employees, consultants, affiliates, suppliers, agents, Sub-Affiliates and subcontractors) shall comply with all applicable anti-bribery and anti-corruption laws (“Anti-Bribery and Corruption Laws”), including but not limited to the United States Foreign Corrupt Practices Act of 1977 and the UK Bribery Act of 2010, in performing these Affiliate Terms. Accordingly, you hereby agree that:

 

(1)

You will review and comply with Lazada’s Code of Conduct (athttps://www.lazada.com/suppliers-code-of-conduct, as may be amended from time to time).

 

(2)

You warrant and represent that no director, officer, controlling shareholder, ultimate beneficial owner, employee, agent or sub-contractor who will perform the services under these Affiliate Terms (whether current or future) is a government official or employee, including employees of government-owned or government-controlled corporations, agencies or bodies, unless services retained are bona fide consulting work and you prove to Lazada’s satisfaction that the retained official has obtained necessary approvals by competent authorities/employer to be retained for said consulting services.

(3)

You have not and shall not, in all activities in connection with the performance of these Terms, directly or indirectly, make any payment, authorise, offer or promise to make any payment or transfer of anything of value to a government official or employee, or to any political party or any candidate for political office, for the purpose of influencing, inducing or rewarding any act or omission of an act to secure an improper advantage or to improperly acquire, preserve or obtain business.You shall not instruct, cause or permit any third party to violate the conditions in this Clause on your behalf or on behalf of any member of the Lazada Group.

(4)

You shall maintain true and accurate records necessary to demonstrate compliance with these Affiliate Terms and shall provide to Lazada a written certification of the measures that you have taken to ensure such compliance upon simple request.

(5)

Lazada shall have the right to audit, by itself and/or by its appointed auditors and representatives, such books and records (including contracts, invoices and other accompanying documentation) held by you for the purposes of assessing compliance with the provisions in this Clause, upon notice and subject to reasonableness as to place, date and time of said audit, all to the extent such books and records relate to your performance under these Affiliate Terms. You agree to fully cooperate in any such audit.

(6)

You shall comply and shall take appropriate steps to ensure the compliance of each of your principals, owners, ultimate beneficial owners, shareholders, officers, directors, employees agents, Sub-Affiliates and sub-contractors who will perform the obligations under these Affiliate Terms, with all applicable Anti-Bribery and Corruption Laws in any business dealings and activities undertaken in connection with these Affiliate Terms.

(7)

You will notify Lazada if you become aware of information that suggests that you or any of your Sub-Affiliates has failed, or is likely to fail, to comply with this Clause.

(8)

Lazada may terminate these Affiliate Terms, or suspend or withhold payment effective immediately, upon written notice to you if Lazada in good faith believes that you or your Sub-Affiliates have breached or caused a breach of this Clause. No members of the Lazada Group shall be liable for any claims, losses or damages suffered by an Affiliate arising from or in connection with the Affiliate’s failure to comply with this Clause, or the termination of these Terms pursuant to this Clause.

(9)

Regardless of any other provision in these Affiliate Terms, Lazada will not be obliged to do, or omit to do, any act which would, in its reasonable opinion, potentially put it in breach of the Anti-Bribery and Corruption Laws.

 

J. Intellectual Property Rights

 

54.  The Intellectual Property Rights in and to the Portal and the Materials are owned, licensed to or controlled by Lazada, our licensors (including the Sellers in respect of Materials provided by the Sellers), or our service providers. All title, ownership and intellectual property rights in the Portal, the Material and all content provided thereunder shall remain with Lazada members of the Lazada Group or licensors, as the case may be. All rights not otherwise claimed under these Affiliate Terms or by Lazada are hereby reserved. We reserve the right to enforce such Intellectual Property Rights to the fullest extent of the law.

 

55. All trademarks, service marks, trade names and logos used on the Portal are registered and unregistered marks of us or other third parties. For example, “LAZADA”, “LAZMALL”, “LAZ” and related icons and logos are registered trademarks or trademarks or service marks of Lazada in various jurisdictions. Those trademarks or service marks are protected under applicable copyright, trademark and other proprietary rights laws, and any unauthorized copying, modification, use or publication of these marks is strictly prohibited (save as embedded within the provided Materials for use in respect of the Permitted Purpose and in any event, modification of such trademarks or service marks is strictly prohibited). Nothing on the Portal and these Affiliate Terms shall be construed as granting, by implication, estoppel or otherwise, any license or right to use (including as a meta tag or as a “hot” link to any other website) any trademarks displayed on the Portal without Lazada’s written permission or that of the applicable trademark owner.

 

56.  Subject to these Affiliate Terms, Lazada grants you a personal, non-exclusive, non-transferable, non-sublicensable, revocable and limited license to do the following solely for the Permitted Purpose: (a) download, print, or use the Materials provided for the Permitted Purpose, provided that you do not modify the Materials; (b) access the Portal including reports made available to you by Lazada; and (c) use without modification any tools made available on the Portal (including Affiliate Links) provided by Lazada. Lazada or the relevant copyright owners retain all copyright and other proprietary notices contained in the Materials.

 

57. You retain all of your ownership rights to any original content generated or delivered by you in the promotion of the Affiliate Link in order to perform the services related to the Affiliate Program (“Affiliate Content”). However, by participating in the Affiliate Program, you grant to Lazada and other members of the Lazada Group a worldwide, non-exclusive, royalty-free, sub-licensable and transferable license to use, reproduce, display, modify, re-format, distribute, prepare derivative works of and/or perform any and all of the Affiliate Content in connection with Lazada Group’s business, including without limitation, for the purposes of the Affiliates Program and for other promotional or marketing purposes as may be determined by Lazada.

 

58.  Except as permitted under the Affiliate Program, no part or parts of the Portal, or any Materials may be reproduced, reverse engineered, decompiled, disassembled, separated, altered, distributed, republished, displayed, broadcast, hyperlinked, mirrored, framed, transferred, or transmitted in any manner or by any means or stored in an information retrieval system or installed on any servers, system or equipment without our prior written permission or that of the relevant right owners.

 

59.  Further, you must not copy or reproduce Lazada’s images, logos, brand identities, nor copy graphics, texts or other contents from the websites, mobile applications and / or any intellectual property as well as information technology (“Assets”) of Lazada on its Approved Networks except in accordance with these Affiliate Terms or otherwise with Lazada’s express prior consent.  Your use of Lazada’s Assets in any form and for any purpose is subject to these Affiliates Terms or otherwise Lazada’s prior written consent. 

 

60.  Any breach of obligations by you under these Affiliate Terms or any other Intellectual Property Rights of Lazada will entitle Lazada to immediately terminate your participation in this Affiliate Program. This is without prejudice to any additional claims that Lazada is entitled to request from you under these Affiliate Terms and in law. In particular, Lazada reserves the right to temporarily suspend or terminate all and any services related to Affiliates in accordance with Clause 78(b). 

 

61.  You shall immediately, and in any event within one (1) day upon written request from Lazada, delete all or part of any information and/or content from your Approved Networks if Lazada, in its sole discretion, reasonably believes that any such information and/or content (i) violates applicable laws or regulations, (ii) infringes the rights of any third party, including but not limited to Intellectual Property Rights, privacy and publicity rights, claim of defamation, false or deceptive advertising claims and consumer fraud, (iii) breaches these Affiliate Terms (which for the avoidance of doubt, include (without limitation) the Terms of Use, the Online Promotional Guidelines, Lazada’s Branding Guidelines, the terms of our Privacy Policy and any other applicable Affiliate Policies); or (iv) harms the interests of the Lazada Group.

 

K. Affiliate: Indemnity, compensation and liability limits 

 

62.  You will indemnify and hold the Lazada Group (and our respective officers, employees, directors, contractors, partners, agents, subcontractors and representatives) (the “Lazada Indemnified Parties”) harmless from, and at Lazada’s option defend Lazada against, all claims, damages, liabilities, losses, costs and expenses (including reasonable legal fees and other professional fees) (“Claims”) arising out of or related to:

(1)

your violation of any applicable laws or regulations;

(2)

your violation of these Affiliate Terms, any policies and guidelines as notified from Lazada from time to time (including the Online Promotional Guidelines) and/or in relation to your participation in this Affiliate Program;

(3)

any actual or alleged breach of your undertakings, representations, warranties or obligations set out in these Affiliate Terms(which for the avoidance of doubt, include (without limitation) the Terms of Use, the Promotional Guidelines, Lazada’s Branding Guidelines, the terms of ourPrivacy Policy and any other applicable Affiliate Policies);

(4)

any incorrect, misleading or erroneous information provided to Lazada or any third party in connection with your participation in the Affiliate Program;

(5)

any tax compliance costs or tax liability incurred by Lazada or any member of the Lazada Group in connection with your activities, arising out of your non-compliance with the applicable tax laws or us being deemed as your tax agent;

(6)

any Affiliate Content, or your posting of the Affiliate Link on an Approved Network or otherwise; or

(7)

any actual or alleged infringement of Lazada’s or a third party’s Intellectual Property Rights.

Lazada may also assume control of the investigation or defense of any matter subject to indemnification by you and you must work with us in making available any defenses and indemnify us for all reasonable legal fees and other professional fees we may incur.

 

63.  Without limiting the generality of Clause 62 above, if any Lazada Indemnified Parties is sued by a third party for violations of the Affiliate’s obligations under these Affiliate Terms or otherwise incurred due to the Affiliate’s negligence or misconduct, the Affiliate shall be obliged to compensate Lazada for all Claims made by third parties based on the above violations. If Lazada requires the Affiliate to provide information or explanation for the purpose of protecting Lazada’s rights under the laws, Affiliate is obliged to provide such information to Lazada as soon as possible, and will also provide any assistance reasonably required by Lazada in order to protect Lazada’s rights under the relevant laws. 

 

L. Lazada: Indemnity, compensation and liability limits 

 

64.  Lazada will not be held liable for any damages of any kind, including any direct, indirect, special, incidental, punitive, and consequential damages, arising out of or in connection with these Affiliate Terms, the Portal (including inability to use the Lazada Services or the tools), any Lazada Services, or from messages received or transactions entered into on the Portal, provided that, subject to Clause 65 below, Lazada will compensate you for any direct damages resulting exclusively, or primarily from Lazada's fraud, gross negligence or willful misconduct.

 

65.  If Lazada is found liable, to the fullest extent permitted by applicable laws, and not withstanding any other provision of these Affiliate Terms, the aggregate liability of the Lazada Indemnified Parties, and any of them, to you and anyone claiming by or through you, for all Claims resulting from or in any way related to the Affiliate Terms and/or the Affiliate Program shall not exceed the total of the Commissions paid to you under these Affiliate Terms in the six (6) months immediately preceding the occurrence of the event giving rise to the most recent claim of liability. It is intended that this limitation apply to any and all liability or cause of action however alleged or arising, unless otherwise prohibited by applicable laws.

 

65A. In the event you are in material breach of any provision of these Affiliate Terms, any applicable laws and/or any Platform policies and requirements (including the Online Promotional Guidelines and Lazada’s Branding Guidelines), in addition to Lazada’s termination rights under these Affiliate Terms, you agree to pay Lazada the sum of VND118,000,000,000as liquidated damages (and not as penalty). The parties agree that the quantum payable as liquidated damages (as stipulated in this Clause) is a genuine pre- estimate of the foreseeable damages incurred by Lazada due to the breach by the Affiliate of these Affiliate Terms, any applicable laws and/or any Platform policies and requirements (including the Online Promotional Guidelines and Lazada’s Branding Guidelines).

M. Lazada Data

 

66.  All data and information provided by Lazada or any member of the Lazada Group during the term of the Affiliate Program shall be used only for the Permitted Purpose and in the manner as previously confirmed by Lazada, and shall not be copied, stored, edited, published, rented, sold or otherwise disclosed or used without authorization.

 

67. Without limiting the generality of Clause 66:

 

(1)

Affiliate shall not use or disclose, and shall ensure that its Sub-Affiliates do not use or disclose, performance data and/or post back information gathered and/or obtained in the course of delivery of an Affiliate Link for any purpose other than performing the services under these Affiliate Terms;

(2)

no third parties may have access to the Commission Rates, Commission Structure, and Lazada’s reports and statistics provided under the Affiliate Program without the prior written consent of Lazada, and such access will be subject to the terms and conditions set forth by Lazada.; and

(3)

in no event will any third parties be permitted access to the Lazada Reporting System and/or the reports or statistics distributed via the Portal for the purpose of developing reporting across unaffiliated networks.

 

N. Personal Data

 

68.  For more information on how Lazada uses and protects your personal data that you may provide in the use of the Services, the Account and/or the Portal, please read the Lazada Privacy Policy. Your access to and/or use of the Portal and the Account, as well as your participation in the Affiliate Program are subject to the Lazada Privacy Policy (as amended from time to time), which is incorporated into these Affiliate Terms by reference.

 

69.  Without limiting the generality of Clause 68 above, by providing your contact information and/or personal data in connection with your access or use of the Affiliate Program, the Account and the Portal  (i.e. via your submission of the Sign-Up form available on the Portal, opening and registration of your Account or when you contact us), you consent to Lazada’s collection, use, disclosure or otherwise processing of your personal data to, amongst others to: (a) administer the Affiliate Program, including without limitation to assess, process and provide products, services and/or tools to you in connection with the Affiliate Program; (b) to administer and process any payments; (c) to respond to any communications, queries, requests for information or services from you, howsoever received; (d) to provide you with information and/or updates on the Affiliate Program and our other products, services, upcoming promotions offered by us and/or events organised by us and selected third parties which may be of interest to you from time to time; (e) for due diligence and auditing purposes; (f) for research, investigations and campaigns in connection with the Affiliate Program; (g) to understand the users engagement with Lazada and our campaigns; (h) to comply with our legal and regulatory obligations; and (i) to establish, exercise and defend legal claims. 

 

70.  You undertake, represent and warrant that you will only use and process personal data (including but not limited to personal data of any actual or potential Customer) in accordance with the requirements of the applicable personal data protection laws, and in a manner which ensures that Lazada remains in compliance with the requirements under the applicable data protection laws. Where you provide Lazada with personal data (including but not limited to that of your employees or agents, Sub-Affiliates and/or their employees or agents, you represent and warrant that you have obtained the necessary consent and/or regulatory approvals for your disclosure of such data to Lazada for processing (which includes Lazada's disclosure of the said personal data to third parties).

 

O. Confidentiality 

 

71.  Neither Party shall reveal the other Party’s Confidential Information to any third parties

except to its affiliates, employees, representatives and/or agents who need to know it for the purposes of performing their obligations under these Affiliate Terms and who have agreed in writing to keep it confidential unless they have the second-mentioned Party’s approval to do so. This duty of non-disclosure shall survive the termination of your participation into the Affiliate Program. 

 

72.  Confidential information shall be any information and documents belonging to the respective other Party that has been marked as confidential or can be regarded as confidential based on the circumstances. It does not include information that the recipient already knew other than pursuant to the Affiliate Program, that becomes public through no fault of the recipient, that was independently developed by the recipient, or that was lawfully obtained and provided to the recipient by a third party.

 

73.  “Confidential Information” in the case of Lazada refers and is not limited to: 

 

(1)

Any marketing strategies, plans, financial information, or projections, operations, sales estimates and business plans relating to the past, present or future business activities of such party or any member of the Lazada Group;

(2)

Any past or present performance results, including orders and volumes (including any reports and statistics made available to the Affiliate via the Portal or otherwise);

(3)

Any plan and strategies for expansion;

(4)

Any products or services, customers or supplier lists and the commercial details of the Affiliate Program (including any Commission Rates and/or Commission Structure); and

(5)

Any concepts, reports, data, know-how, works-in-progress, designs, development tools, specifications, computer software, source code, object code, flow charts, databases, inventions, information and trade secrets.

 

74.  Notwithstanding the foregoing, the Confidential Information could be disclosed due to the following reasons:

(1)

to comply with the mandatory provisions of applicable law or the rules of any recognized jurisdiction;

(2)

the information is in the public domain, other than through a breach of this Clause or any similar confidentiality agreement between the Parties;

(3)

for the purposes of any arbitration or legal proceedings arising out of or in connection with these Affiliate Terms and/or the Affiliate Program; and

(4)

to any governmental authority at their request, provided that the disclosing Party has given the other Party reasonable notice and the opportunity to seek confidential treatment, a protective order or similar remedies or relief prior to disclosure (unless prohibited by law).

 

P. Amendments and Changes

 

75.  Lazada may from time to time, without giving any reason or prior notice, wholly or partially modify, upgrade, suspend, discontinue ("Modification") any of the Portal, Lazada Services and the tools, and while we endeavor to provide you reasonable notice of any material Modifications, Lazada shall not be liable if any such Modification affects your participation in the Affiliate Program or prevents you from accessing any part of the Portal. 

 

76.  Unless otherwise specified in these Affiliate Terms, Lazada reserves the rights to amend, modify or vary these Affiliate Terms with at least five (5) days’ prior written notice by inclusion or publication of such amendment on the Portal, the Lazada Platform and/or by notification to you via email at your registered email address for the Affiliate Program, such variation to take effect on the date specified by Lazada through the above means. You agree that all agreements, notices, disclosures and any other communications that we provide to you electronically shall satisfy any legal requirements that such communications be in writing. You agree that you are responsible for accessing, reviewing and approving all these amendments from time to time.  If you use the Portal or continue to participate in the Affiliate Program after any such amendments take effect, you are deemed to have accepted such amendment. In the event that you do not agree with any of those amendments, you have the right to terminate your participation in the Affiliate Program within five (5) days from the notification and / or publication of the amendments as above. Lazada's right to amend these Affiliate Terms shall be exercisable at its sole and absolute discretion.

 

Q. Suspension and Termination 

 

77.  These Affiliate Terms shall apply for the duration of your participation in the Affiliate Program. 

 

78.  The Affiliate Program and these Affiliate Terms may be terminated in the following situations: 

 

(1)

Termination for Convenience. Either Party may unilaterally terminate these Affiliate Terms without cause by providing at least seven (7) days’ prior written notice to the other Party.

 

(2)

Lazada’s Termination Rights. Lazada may unilaterally and immediately terminate these Affiliate Terms and/or suspend, restrict or terminate your participation in the Affiliate Program and/or your use of the Portal upon the occurrence of any of the following:

 

(1)

you or your Sub-Affiliates being in material breach of any provision of these Affiliate Terms or any other rights of Lazada and other members of the Lazada Group;

(2)

you or your Sub-Affiliate being in breach of any applicable laws or any Platform policies and requirements(including the Online Promotional Guidelines and Lazada’s Branding Guidelines);

(3)

you being involved in any situation or activity (including use or other association with illegal or illicit drugs, any politically sensitive affair or culturally insensitive affair (whether domestic or international) which tends in the reasonable opinion of Lazada likely to expose Lazada and/or Lazada affiliates to disrepute, contempt, scandal or ridicule, or would tend to shock, insult or offend the public in any territory in which Lazada and/or Lazada affiliates operate, or reflects unfavourably on Lazada's reputation or products. Lazada's decision on all matters arising under this Clause shall be conclusive;

(4)

if, in Lazada’s sole opinion, the continuation of your participation in the Affiliate Program and/or your use of the Portal may harm Lazada’s and/or Lazada’s affiliates’ reputation;

(5)

your account is deemed inactive in accordance with Clause 10 of these Affiliate Terms;

(6)

(in the case of an individual) you being adjudicated a bankrupt or have any similar action taken against you in any jurisdiction, or (in the case of a company) you passing a winding up resolution or a court of competent jurisdiction making an order for the same;

(7)

the issuance of a judicial management or administrative order in relation to you, or the appointment of a receiver over, or an encumbrance taking possession of, or the sale of, your assets;

(8)

you making an arrangement or composition with your creditors generally or applying to a court of competent jurisdiction for protection from its creditors; or

(9)

you ceasing or threatening to cease to carry on business.

 

(3)

Affiliate’s Termination Rights.  You may unilaterally and immediately terminate these Affiliate Terms on the occurrence of any of the following: (a) the making of a judicial management or administration order in relation to Lazada or the appointment of a receiver over Lazada’s assets; (b) the making of an arrangement or composition by Lazada with its creditors generally or applying to a court of competent jurisdiction for protection from its creditors; or (c) Lazada ceasing or threatening to cease to carry on business.

 

79.  Without prejudice to the foregoing, Lazada reserves the right to suspend the Affiliate’s account on the Portal or the Affiliate’s services under these Affiliate Terms for the purposes of investigations at any given time, for any period as Lazada deems appropriate, in relation to any reasonable suspicion of misconduct or fraud (such as, but not limited to, a situation where the events under Clauses 27, and/or any breaches of 42 to 51 are suspected to have occurred).  

 

80.  Lazada reserves the right to withhold unpaid Commissions for a reasonable period of time following termination to ensure that the correct amount is paid to the Affiliate, such as whether chargebacks apply. Termination of your participation in the Affiliate Program is without prejudice to all accrued liabilities that you owe to Lazada prior to the date of your termination. 

 

81. Upon termination your participation into the Affiliate Program under these Affiliate Terms, all rights and obligations of the Parties will be extinguished, except for matters that expressly or by their nature are intended to survive. 

 

82.  Upon termination of your participation in the Affiliate Program, you shall, without being requested to do so, immediately delete and ensure that the Sub-Affiliates immediately delete the information (including personal data) and Material that you or your Sub-Affiliates have received from Lazada or any other parties in the course of your participation in the Affiliate Program, whether via the Portal or otherwise. Neither the Affiliate nor the Sub-Affiliate shall have any right of retention in this respect. You shall, at Lazada’s request, provide Lazada with written confirmation of the deletion by you and your Sub-Affiliates (as applicable). No Commission shall be payable for the period following the termination of these Affiliate Terms. 

 

R. The nature of the relationship between you and Lazada 

 

83.  You acknowledge and agree that you and Lazada are independent contractors, and you are not Lazada’s employee, intermediary or agent and you will not impersonalize, or do anything that would reasonably cause any person to have reasons to believe that you are an employee, intermediary or agent of Lazada when performing the services under this Program. The Affiliate shall have no authority to make or accept any offers or make any representations on behalf of Lazada. 

 

84.  You shall not assign or subcontract any rights or claims under this Affiliate Program without the written consent of Lazada (except in the case of consented Sub-Affiliates).  

 

S. Governing Law and Dispute Resolution 

 

85.  These Affiliate Terms shall be governed by and construed in accordance with the law of Vietnam. 

 

86.  Any dispute, controversy, difference or claim arising out of or relating to these Affiliate Terms, including the existence, validity, interpretation, performance, breach or termination thereof or any dispute regarding non-contractual obligations arising out of or relating to it that cannot be settled amicably by conciliation between the Parties within thirty (30) days of initiating such process of conciliation shall be referred to and finally resolved by arbitration administered by the Vietnam International Arbitration Centre (“VIAC”) under the Arbitration Rules of the VIAC for the time being in force which rules are deemed to be incorporated by reference in this Clause. The place of arbitration shall be in Ho Chi Minh City, Vietnam and the language of the arbitration shall be Vietnamese. The arbitration tribunal shall consist of one (1) arbitrator to be appointed by the chairman for the time being of the VIAC.

 

T. Definitions

 

“Account” refers to an Affiliate account created in accordance with Clause 6 which is used by the Affiliate to access the Portal and to participate in the Affiliate Program.

 

“Affiliate” is a registered participant under the Affiliate Program.

 

“Affiliate Content” has the meaning given to it in Clause 57.

 

 “AffiliateData” means any data (including personal data), record, information and any other material, regardless of the form or media on which it may be recorded and includes, without limitation, all databases, text, graphics, photographs, animations, audio, music, video, links or other content submitted by the Affiliate and/or made available by the Affiliate in connection with the use of the Portal and its participation in the Affiliate Program.

 

“Affiliate Link” has the meaning given to it in Clause 15.

 

“Affiliate Policies” means the policies, rules, guidelines, terms and conditions, etc. applicable to Affiliates under the Affiliates Program, as they may be communicated and amended from time to time by Lazada, including (without limitation) the Online Promotional Guidelines, Lazada’s Branding Guidelines and our Privacy Policy.

 

“Affiliate Program” or “Program” has the meaning given to it in Clause 1.

 

“Affiliate Terms” has the meaning given to it in Clause 1.

 

“Anti-Bribery and Corruption Laws“ has the meaning given to it in Clause 53.

 

“Approved Networks” means all advertising media, including but not limited to website, social media networks or other online assets of the Affiliate or its sub-affiliates, their owned and brokered media registered by the Affiliate to the Affiliate Program and approved by Lazada.

 

“Assets” has the meaning given to it in Clause 59.

 

“Attribution Window” is the period of time as stipulated by Lazada between when a Customer first clicked through the Affiliate Link and subsequently took an action resulting in an Eligible Transaction.

 

“Commission” means the commission received or receivable by an Affiliate for delivering an Eligible Transaction, and excludes any chargeback.

 

“Claims” has the meaning given to it in Clause 62.

 

“Commission Rate” has the meaning given in Clause 32(a).

 

“Commission Structure” has the meaning given in Clause 32(b).

 

“Customer” means a user of the Lazada Platform.

 

“Eligible Transaction” has the meaning given to it in Clause 26.

 

“Intellectual Property Rights” means all copyright, patents, trademarks, service marks, domain names, layout design rights, registered designs, design rights, database rights, trade or business names, rights protecting trade secrets and confidential information, rights protecting goodwill and reputation, and all other similar or corresponding proprietary rights and all applications for the same, whether presently existing or created in the future, anywhere in the world, whether registered or not, and all benefits, privileges, rights to sue, recover damages and obtain relief for any past, current or future infringement, misappropriation or violation of any of the foregoing rights.

 

“Invalid Transaction” means any transaction as specified in Clause 27.

  “Lazada” means Recess Company Limited (having its Enterprise Code of 0308808576), being the operator of the Lazada Platform in Vietnam, on which Lazada and other third parties (Sellers) are offering Products.

 

“Lazada Group” means Lazada and any other persons that directly or indirectly through one or more intermediaries, control are controlled by or under common control with Lazada.

 

“Lazada Indemnified Parties” has the meaning given to it in Clause 62.

 

“Lazada Platform” meansthe online marketplace platform operated by Lazada on website https://www.lazada.vn the mobile application “Lazada” (including on iOS and Android), made available by Lazada from time to time within Vietnam.

 

“Lazada Reporting System” shall mean the system operated by Lazada and/or another member of the Lazada Group for recording data relating to the Affiliate Program on its own server.

 

“Materials” has the meaning given to it in Clause 13.

 

“Modifications” has the meaning given to it in Clause 75.

 

“Permitted Purpose” means the participation as an Affiliate in the Affiliate Program on the terms and conditions as set out herein.

 

“Portal” means the online portal provided by Lazada, which enables the Affiliate to access the Affiliate Program, and which may be accessible via (i) the relevant Lazada website; and/or (ii) the mobile application version of the Lazada Platform.

 

“Product” has the meaning given to it in Clause 2.

 

“Prohibited Content” includes, but is not limited to, content which:

(1)

contains, or may contain, viruses, worms or other potentially harmful components which may threaten, infect, damage or otherwise interfere with the systems of Lazada or its Affiliates;

(2)

creates, or may create, a security risk or vulnerability;

(3)

infringes any Intellectual Property Rights or upon the rights (including proprietary rights) of any third party;

(4)

promotes violence;

(5)

is false, inaccurate, misleading, defamatory, libellous, harassing or threatening;

(6)

is obscene, pornographic, indecent, vulgar, violent, counterfeited, fraudulent, stolen, harmful or otherwise illegal under the applicable laws or contrary to social and ethical practices;

(7)

involves politically sensitive affairs or culturally insensitive content (whether domestic or international);

(8)

is, or may be construed (in Lazada's sole opinion), as abusive, discriminatory(e.g. regarding gender, race, politics, religion, nationality or disability), offensive or otherwise objectionable; and/or

(9)

any other content which is prohibited under Lazada’s rules and policies (including but not limited tothe Online Promotional Guidelines) issued by Lazada from time to time.

 

“Seller” means a seller of Products on the Lazada Platform.

 

“Services” has the meaning given to it in in Heading D.

 

“VIAC” has the meaning given to it in Clause 86.

 

“Sign-Up Form” is the registration form that is accessible via the Portal for the registration to the Affiliate Program.

 

“Sub-Affiliate” has the meaning given to it in Clause 17.

 

“VAT” has the meaning given to it in Clause 38.