BACKGROUND
A.
ILG
Digital operates and manages an independent Affiliate Network ("Premier
Affiliate Network") located at: www.premieraffiliates.com("the
URL") which features a comprehensive list of blue chip merchants and affiliates
who agree to work together to generate new business sales ("the Activity")
following registration, and acceptance of Premier Affiliate Network terms
& conditions as an online transaction tracked and approved by the Merchant
B.
Premier Affiliate Network is available to all approved Affiliates seeking to promote
a Merchant's Activity online via their affiliate program as advertised on the Premier
Affiliate Network in consideration for affiliate revenue payments on offer as
directed on the Merchants sign up page(s).
C. The Merchant
agrees to provide a number of integrated links and digital creative material
associated with the Activity to the Affiliate and the Affiliate has agreed to
promote the Activity using said promotional material on the terms set forth in
this Agreement.
1. DEFINITIONS
"Affiliate" - any company / individual that wishes
to promote a Merchant's brand by means of PPC, SEO, Display advertising or
other format of advertisement in exchange for payment of commission as indicated
on each Merchant's affiliate program details page.
"Merchant" - Any company / advertiser brand - who joins the Premier
Affiliate Network by agreeing and adhering to the Merchant terms and
conditions of the network.
"Affiliate Code of Conduct", the code of conduct provided in
electronic format to the Affiliate from time to time during the term of this
Agreement;
"Affiliate Director", shall be Lee-Ann Johnstone unless otherwise
notified by a member of Premier Affiliate Network management
by Written Notice;
"The Merchant Brand Features" means all trademarks, service
marks, logos and other distinctive brand features of the Merchant that are used
in connection with the Activity or URL;
"Reporting URL", shall be the following URL http://www.premieraffiliates.com
or such other URL as is notified to you from time to time by the Affiliate Director;
"Written Notice", shall include notice transmitted by electronic mail
(email) as well as postal letter, facsimile or other similar form of
notification;
"Affiliate Revenue" is the percentage of Revenue or other commission
mechanism (CPA, CPL, Cost Per Connection, cost per
order etc.) due and payable to you.
"Spam" means emails and messages that meet any of the following
definitions:
A. An unsolicited mailing, usually, to many people.
B. Contain false or misleading statements.
C. Do not truthfully identify the source or the originating IP Address and / or the originating email address.
D. Do not contain an online and real time Remove option.
"Fraud Traffic" means Sales / Activity or traffic generated at the Merchant
Site through illegal means or in bad faith to defraud the system, regardless of
whether or not it actually causes us harm. Fraud Traffic includes but is not
limited to Spam, false advertising and unauthorized use of any third party
copyrights or trademarks.
"Activity" - refers to all real money sales tracked and approved via
an Affiliate url for a particular
Merchant - which would earn Affiliate Revenue
2. DURATION & TERMINATION
2.1 Subject to clause 2.2. this agreement shall commence on
the date that you accept these terms and conditions upon applying for an
affiliate account via the Premier Affiliate Network ("the Commencement Date") and continue in
force until terminated by either party upon 30 days Written Notice;
2.2 Any breach of the following Affiliate terms and
conditions as well as the Affiliate Code of Conduct shall entitle Premier
Affiliate Network to terminate immediately upon Written Notice to the
Affiliate; and
2.3 Upon termination:
You must remove all of the Merchant's banners/icons from
your site and disable the link from your site to ours. All rights and licenses
given to you in this Agreement shall immediately terminate.
If you have failed to fulfill your obligations and
responsibilities, we will not pay you the Affiliate Revenue otherwise owing to
you on termination. We may withhold your final payment for a reasonable time to
ensure that the correct amount is paid.
3. YOUR RIGHTS:
3.1 Approved Layouts
Without our prior written approval, you will only use Premier
Affiliate Network approved banners, text links and other display ad
formats as available in the banner farm and
will not alter their appearance. The appearance and syntax of the hypertext
transfer links are designed and designated by us on behalf of the Merchants
belonging to the network and constitute
the only authorized and permitted representation of the Site(s). You may only
use banners from Premier Affiliate Network banner farm, located in the Affiliate
area.
3.2 Good Faith
You will not benefit from known or suspected traffic not
generated in good faith whether or not it actually causes us or the Site(s)
damage.
We reserve the right to retain all amounts due to you under
this Agreement if we have reasonable cause to believe that such traffic has
been caused with your knowledge.
Even if you have not knowingly generated such traffic, we
reserve the right to withhold Affiliate Commissions Revenue with respect to
such traffic.
3.3 Responsibility for Your Site
You will be solely responsible for ensuring that materials
posted on your site are not libelous or otherwise illegal and that you will
update the Merchant promotions accordingly when notified.
We disclaim all liability for these matters. Further, you
will indemnify and hold us and the Merchants harmless from all claims, damages,
and expenses
(Including, without limitation, attorneys' fees) relating to
the development, operation, maintenance, and contents of your site.
3.4 Merchant Relationship
Without our prior written approval, you will only provide
services to the Merchants belonging to this network and will not seek to
provide them directly to the Merchant at any time whatsoever
4. ONLINE REPORTING
4.1 Premier Affiliate Network shall
provide an integrated online reporting system accessible via secure username
and password to the Affiliate online - once the Merchant has approved the
Affiliate onto their program. This will be updated every 24hours during the
term of this agreement providing there are no system faults or you are notified
otherwise.
4.2 The reporting system provided to the Affiliate shall
enable the Affiliate to define the time period by date and activity in order to
generate an online report detailing the following information for the time
period requested:
4.2.1 the number of new impressions,
clicks, leads to the URL associated with the HTML tracking links provided to
the Affiliate by the Merchant;
4.2.2 the number of sales (the
Activity) ; and
4.2.3 the revenue generated for the
Affiliate to date
5. PROMOTIONAL ACTIVITES & TRACKING
5.1 During the term of this Agreement the Affiliate shall
use all reasonable endeavors to promote the Activity and the Merchant URL using
the available tracking links and creative material provided by the Network;
5.2 The Affiliate may request additional assistance from the
Premier Affiliate Network Account Manager for specific promotional activities
required on a Merchant Brand such additional assistance to be mutually agreed
from time to time
5.3 Cookie length will be determined by the Merchant and
will be bespoke to their affiliate program - please ensure that you have read
and understood each Merchant's affiliate
program page when you sign up to the network
5.4 PLEASE NOTE THE NEW VOUCHER CODE POLICY GUIDELINES IN FORCE: These are in line with the recent Affiliate Council IAB Best practice guidelines
All active Voucher Code affiliate sites must ensure that they operate promotions in accordance to the new best practice rules
as stated below:
· Using 'Click to Reveal' when there is no valid or current code present is not permitted of affiliate publishers including using
'Click to Reveal' to show any deals/offers/sales instead of vouchers.
· Voucher code affiliate publishers must clearly detail the voucher offer that will be revealed by the click.
· A valid code is defined as a code that has been legitimately issued by a merchant for use online. This code will have an activation date and where necessary a deactivation date.
· Voucher code directories must contain clear categorization and separation between deals/offers/sales and
discount codes.
6. PAYMENT
6.1 Subject to clause 6.5 during the term of this agreement
the Affiliate shall receive the commission payments as indicated per Merchant
on www.premieraffiliates.com for each unique sale tracked and approved by the
Merchant during each calendar month.
6.2 Unless otherwise stated all sums due under this
Agreement are exclusive of Value Added Tax ("VAT"), and any other applicable
sales taxes which may from time to time be introduced, which shall be charged
in accordance with the relevant regulations in force at the time of making the
taxable supply.
6.3 Payment frequency will be dictated on the Merchant sign
up information pages and will be enforced as such. Premier Affiliate Network
will facilitate such payment term as per the Merchant's instruction only. (This
could be weekly, monthly, or backdated as deemed necessary by the nature of the
Activity being promoted by the Affiliate and on an individual Merchant by
Merchant basis)
6.4 Premier Affiliate Network shall pay
or transfer the outstanding commission payments no later than 10 working days
after payment is received from the Merchant in accordance with the Merchants
Agreement to the Affiliate's nominated bank account by direct bank transfer or,
if requested of and agreed by the Merchant, by postal cheque
or other form of transfer or payment method.
The Affiliate shall provide all requisite banking, or other relevant
information upon the application to the program and onus will be on the
Affiliate to ensure that all payment details are correct to ensure prompt
payment. Minimum payment terms may be enforced by the Merchant to the Affiliate
if deemed necessary. Affiliates are to ensure that when they sign up to a
Merchant program they are in agreement with the Merchant's payment terms and
conditions.
6.5 For the avoidance of doubt all commission payments will
be calculated in GBP at the prevailing relevant exchange rate at the time Premier
Affiliate Network makes the payment or transfer in accord with clause
6.4.
7. OWNERSHIP: BRAND FEATURES & CONTENT
7.1 The software facilitating the Activity and any digital
creative materials provided to the Affiliate in connection with the Affiliate's
promotional activities will be maintained by the Premier Affiliate Network
on behalf of the Merchant.
7.2 Nothing in this Agreement shall confer in the Affiliate
any right of ownership in any such content provided in support of the
Affiliate's promotional activities. Premier Affiliate Network may
terminate this Agreement with immediate effect if the Affiliate shall now or in
the future contest the validity of the Merchant Brand Features.
7.3 No unauthorized PPC search campaigns on Merchant
Brands shall be entered into without prior approval from the Merchant.
8. CONFIDENTIALITY
8.1 All parties (Merchant , Network
and Affiliate) agree with each other to keep all information that they obtain
about the other concerning the business, finances, technology and affairs of
the other regardless of its nature ("Confidential Information"),
strictly confidential.
8.2 The provisions of this Clause 8 shall cease to apply to:
8.2.1 information that has come into the public domain other
than by breach of this Clause or any other duty of confidence; and/or
8.2.2 information that is obtained
from a third party without breach of this Clause or any other duty of
confidence; and/or
8.2.3 information disclosed to the professional advisers of
either party, provided that such advisers are under an obligation of
confidentiality no less onerous than that contained in this Clause 8; and/or
8.2.4 information that is known by either party, in
connection with the other party, and which has been disclosed to either party
by a third party; and/or
8.2.5 information that is required
to be disclosed by a government body or court of competent jurisdiction or by
operation of law or in order to comply with the rules of a recognized stock
exchange.
9. RIGHTS OF THIRD PARTIES
Notwithstanding any other provision in this Agreement a
person who is not a party to this Agreement has no right under the Contracts
(Rights of Third Parties) Act 1999 to rely upon or enforce any term of this
Agreement. Nothing in this Agreement shall affect any right or remedy of a
third party which exists or is available other than as a result of the
aforementioned Act.
10. ASSIGNMENT
Neither party shall be entitled to assign the benefit and/or
burden of this Agreement in whole or in part to any party unless the other
party has given its prior written consent.
11. FORCE MAJEURE
Neither of the three parties (Affiliate, Merchant, Network) shall be liable for failure to perform or
delay in performing any obligation under this Agreement if the failure or delay
is caused by any circumstances beyond its reasonable control, including but not
limited to acts of god, war, civil commotion or industrial dispute ("force
majeure"). If such delay or failure continues
for at least 30 days, the party not subject to the force majeure
shall be entitled to terminate this Agreement by notice in writing to the
other. The party subject to the event of force majeure
shall, as soon as practicable, give notice of the event to the other party,
such notice to include a reasonable forecast of the duration of the event.
12. ENTIRE AGREEMENT
12.1 This Agreement (as amended from time to time) together
with any document expressly referred to in any of its terms, contains the
entire agreement between all the parties relating to the subject matter covered
and supersedes any previous agreements, arrangements, undertakings or
proposals, written or oral, between the parties in relation to such matters. No
oral explanation or oral information given by any party shall alter the
interpretation of this Agreement. Each party confirms that, in agreeing to
enter into this Agreement, it has not relied on any representation save insofar
as the same has expressly been made a representation in this Agreement and
agrees that it shall have no remedy in respect of any misrepresentation which
has not become a term of this Agreement save that the agreement of the parties
contained in this Clause shall not apply in respect of any fraudulent
representation whether or not such has become a term of this Agreement.
12.2 No addition to, or modification of, any provision of
this Agreement shall be binding on the parties unless made by a written
instrument and signed by a duly authorised
representative of each of the parties.
13. LAW AND JURISDICTION
This Agreement shall be exclusively governed by and
construed in accordance with the laws of England and Wales whose
Courts will have exclusive jurisdiction in any dispute.
14. DISPUTE RESOLUTION
Any disputes, differences or questions arising out of this
Agreement or as to the rights or obligations of the parties under it or in
connection with its construction (together in this clause referred to as
"Dispute") will in the first instance be referred to the parties'
respective boards of directors for discussion and resolution within fourteen
(14) days of the date of such referral. Each party will use all reasonable endeavours to reach a negotiated resolution by discussion
in accordance with this subclause.
15. INDEMNIFICATION
You agree to indemnify and keep I-level Digital and the Premier
Affiliate Network, its officers, employees, agents and shareholders
harmless from all and any liability, loss, claim and expense, including
reasonable attorneys' fees), arising from your use of the network, the Content or breach of these Terms
of Use.
16. Limits on "PREMIER AFFILIATE NETWORKS"
Liability
YOU USE THE SITE AND THE CONTENT
AT YOUR OWN RISK. Premier Affiliate Network DOES NOT ASSUME ANY LIABILITY
WHATSOEVER FOR ANY CONSEQUENCES ARISING FROM YOUR USE OF THE MERCHANT SITE OR
RELATED CONTENT. THE NETWORK, ALL CONTENT AND FUNCTIONS AVAILABLE TO YOU ARE
PROVIDED "AS IS" AND "AS AVAILABLE".
Premier Affiliate Network DOES
NOT MAKE ANY EXPRESSED OR IMPLIED REPRESENTATIONS OR WARRANTIES OF ANY KIND
AND, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, DISCLAIMS ANY LIABILITY
WHATSOEVER (I) FOR THE ACCURACY, MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, OR NON-INFRINGEMENT, OF ANY CONTENT PUBLISHED ON OR MADE AVAILABLE
THROUGH THE SITE, AND (II) FOR ANY VIRUSES OR HARMFUL COMPONENTS OR SOFTWARE
CODE THAT MAY CAUSE DAMAGE TO YOUR HARDWARE, SOFTWARE OR DATA AS A CONSEQUENCE
OF YOUR USE - IN ANY WAY OR MANNER - OF THE SITE OR THE CONTENT. ALL
INFORMATION ON THE NETWORK IS PROVIDED WITH ALL FAULTS AND THE ENTIRE RISK AS
TO THE QUALITY AND ACCURACY OF THE INFORMATION IS WITH YOU AS THE MERCHANT /
AFFILIATE USER.
PREMIER
AFFILIATE NETWORK SHALL UNDER NO CIRCUMSTANCES WHATSOEVER, INCLUDING
BUT NOT LIMITED TO PREMIER AFFILIATE NETWORK NEGLIGENCE, BE LIABLE FOR LOSS OF
SALES, PROFITS OR REVENUE, LOSS OF GOODWILL, LOSS OF DATA OR ANY OTHER DIRECT,
INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES
CAUSED YOU OR ANY THIRD PARTY FROM THE USE OF (OR INABILITY TO USE) THE NETWORK
SITE OR CONTENT, EVEN IF PREMIER AFFILIATE NETWORK HAS BEEN
ADVISED OF THE RISK FOR SUCH DAMAGES.
PREMIER
AFFILIATE NETWORK TOTAL LIABILITY SHALL UNDER NO CIRCUMSTANCES WHATSOEVER
EXCEED THE SUM OF £1000.00
