The Supplier may change these terms from time to
time. Please check them before making another purchase.
| 1 |
Interpretation |
| 1.1 |
In these Conditions the following terms shall
have the following meanings: - |
| “Artificial
Traffic” |
invalid Clicks,
Leads and Transactions, which are not preceded
by an active act of a Visitor who wants
to reach a website in the Mall |
| “Click” |
a click by a
Visitor on a link on the Mall which directs
the Visitor to a Mall website |
| “Code
of Conduct” |
The Supplier's
code of conduct for the Customer in respect
of the Customer's use and content of the
Customer Webpage |
| “Conditions” |
the terms of
supply set out in this document and any
applicable supplemental terms of the Supplier |
| “Contract” |
the contract
for the supply of the Services by the Supplier
to the Customer |
| “Consumer” |
any person who
is purchasing outside the course of his
or her business or trade |
| “Cookies” |
small data text
files that are sent from a server computer
during a browsing session |
| “Customer” |
any person who
signs up to the supply of the Services by
the Supplier |
| “Customer
Webpage” |
the customer's
webpage licensed to it in accordance with
this Contract (and denoted as under the
url www.affinityshopper.com) on the Website
which contains a Mall together with any
other webpage or url that the Supplier may
choose for the Customer from the Supplier's
Website or any other website |
| “IPRs” |
Intellectual
property rights, including, without limitation,
copyright, trade marks (whether registered
or unregistered) and other similar rights |
| “Lead” |
a Visitor who
is connected to a Third Party Website directly
from the Customer Website and who has completed
an act at the Mall website, for example,
registration as a user |
| “Mall” |
those companies'
websites and/or weblinks which the Customer
chooses (from a list of third party websites
supplied by the Supplier) ("Third Party
Websites") to include on the Customer
Webpage as part of the Services in accordance
with clause 2.10 |
| “Pay” |
in respect of
clause 4 of these Conditions, the system
by which the Supplier makes sums available
to the Customer in accordance with the provisions
of clause 4; references in clause 4 to "Paid",
"Payment" and "Payable"
shall be construed accordingly |
| “Pro-Service” |
the paid for
enhanced version of 'Affinity Shopper Free'
with added functionality |
| “Services” |
the services
under which a Customer may utilise a customised
Mall of Third Party Websites on the Customer
Webpage on the Supplier's Website in order
that the Customer may generate income when
Visitors Click on any Third Party Website
from that Mall and undertakes Transactions
on any Third Party Website from the Mall |
| “Supplier” |
Marblemand
Limited a company incorporated in England
& Wales under registered number 1354689 |
| “Third
Party Software” |
any third party
software utilised by the Customer in accordance
with this Contract |
| “Tickets” |
an electronic
ticketed communication, contained within
Affinity Shopper, that enables tracked communication
between the Customer and the Supplier |
| “Traffic” |
the collective
term for Leads and Transactions |
| “Transactions” |
an agreement
concluded by a Visitor to buy a product
or service supplied on any Third Party Website
where the Visitor is connected directly
to the Third Party Website directly from
the Customer Webpage |
| “Visitor” |
any person who
clicks on a link to a Third Party Website
and is connected to a Third Party Website |
| “Website” |
www.affinityshopper.com |
|
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| 2 |
Basis of Supply and variations
to the Mall |
| 2.1 |
The Supplier shall supply the Services to the
Customer in accordance with these Conditions.
The Services are only supplied to those Customers
who have a valid United Kingdom bank account.
The Customer warrants that it has such a United
Kingdom bank account. |
| 2.2 |
The Supplier hereby grants the Customer a royalty-free
licence to use the Customer Webpage on the Website
in accordance with the Code of Conduct and these
Conditions. |
| 2.3 |
If the Customer is a natural person he or she
must be at least 18 years of age or, if the Customer
is under the age of 18, the Customer's parent
or legal guardian must have consented to the entering
of the Contract. |
| 2.4 |
These Conditions are the only terms and conditions
on which the Supplier is prepared to deal with
the Customer and shall apply to the exclusion
of any other express conditions. No variation
or addition to these Conditions shall be binding
upon the Supplier unless agreed in writing between
the Supplier and the Customer. |
| 2.5 |
Subject to any variation in accordance with
clause 2.4, these Conditions embody the entire
understanding of the parties and override any
prior promises, undertakings or representations. |
| 2.6 |
Any price list in whatever form given to the
Customer is subject to these Conditions and does
not constitute an offer to supply. |
| 2.7 |
The Supplier shall only be bound to supply the
Services when email confirmation of the order
has been given to the Customer by the Supplier. |
| 2.8 |
Any omission or error in any sales literature,
web page or site, order form, quotation, price
list, order acknowledgement, despatch note, invoice
or other document issued by the Supplier may be
corrected by the Supplier without liability. |
| 2.9 |
Once the Contract has been formed with the Customer,
the Supplier will file it in electronic or paper
copy for the Supplier's records. |
| 2.10 |
If the Customer has subscribed to the Pro-Service,
the Customer may choose which of the Third Party
Websites it wishes to include on the Customer
Webpage. All other Customers may remove categories
of Third Party Websites only (e.g. gaming, electrical,
adult). |
| 2.11 |
The Mall and the Third Party Websites within
it may be amended and the Customer must keep itself
informed of those changes and amendments by checking
on the Supplier's Website from time to time. For
the avoidance of doubt, the Customer will not
receive remuneration in respect of those Third
Party Websites which have terminated their participation
and the Customer and such Third Party Websites
will be removed by the Supplier. |
| 2.12 |
For the avoidance of doubt, save in respect of
those obligations of the Supplier under these
Conditions, the Supplier shall not be liable in
respect of promotional costs or other costs or
activities by a Customer in relation to the content
of a Customer Webpage. |
| |
|
| 3 |
Customer obligations |
| 3.1 |
The Customer warrants that the information it
gives about itself are accurate. The Customer
shall notify the Supplier immediately of any changes
in the information by updating such information
on the Supplier's Website. |
| 3.2 |
The Customer warrants either that, save for
the Third Party Websites, the rights to all information
and content on the Customer Webpage belong to
the Customer or that the owner of the rights to
the information and content on the Customer Webpage
has given his explicit permission to their publication
there. The Customer also warrants that the information
and content on the Customer Webpage (save for
the Third Party Websites) do not infringe any
rights of third parties, including IPRs, and that
such information and content is not offensive
or libellous. |
| 3.3 |
The Customer shall not in any way generate or
contribute to generating Artificial Traffic to
Third Party Websites. |
| 3.4 |
The Customer shall notify the Supplier immediately
of any known or suspected improper or wrongful
use of the Third Party Websites. |
| 3.5 |
For the avoidance of doubt, the Supplier shall
not be responsible for any communication by the
Customer from its Customer Webpage or otherwise
and the Customer shall indemnify the Supplier
in respect of any liability arising out of the
same. |
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|
| 4 |
Payments to the Customer |
| 4.1 |
The Supplier shall Pay the Customer fees in
respect of all Traffic made by a Visitor on a
Third Party Website (the "Fees"). The
Fees Payable will be as communicated to the Customer
by the Supplier. |
| 4.2 |
The Fees Payable under clause 4.1 shall be payable
in accordance with the following: - |
| 4.2.1 |
the Customer may, subject to clause 4.2.2, draw
down accumulated Fees from within 60 days from
when the Customer has generated valid Traffic
and the Supplier has received payment from the
representative of each company whose website is
comprised in the Customer's Mall; |
| 4.2.2 |
Sums can only be drawn down once the Customer
has accrued sums of more £25 or more. Once
£25 or more is available and cleared in
accordance with clause 4.2.1 then the Customer
may, subject to the amounts accrued, draw down
any of that sum as he or she wishes. Any monies
left in do not accrue interest. |
| 4.3 |
The Supplier will create the invoice for the
Fees on behalf of the Customer. VAT (if applicable)
is added to the Fees. |
| 4.4 |
Payment of the Fees to the Customer will be
made direct to the bank account which the Customer
nominates when applying to enter into the Contract.
|
| 4.5 |
The Supplier uses Cookies in order to track
transactions initiated from the Mall. If the Customer
does not activate or deactivates cookies on his
or her browser, then such tracking cannot take
place and the Supplier will be unable to supply
those parts of the Services. The Supplier shall
not be liable for such inability to access those
parts of the Services. |
| 4.6 |
The Supplier may be informed by the Third Party
Websites that some transactions for which the
Customer had initially generated Traffic did not
complete. When this happens, the Third party Websites
will inform the Supplier that the monies paid
in respect of these transactions may be clawed
back. To the extent that this happens, the Supplier
will notify the Customer and will take the relevant
amounts from the next Fees available for draw
down in accordance with clause 4.2. |
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| 5 |
Payment for the Pro-Service
and Third Party Software |
| 5.1 |
Unless otherwise agreed in writing by the Supplier,
the price for the Pro-Service is a one-off payment
of £49.99. |
| 5.2 |
Unless otherwise specified in these Conditions
or agreed in writing the Customer must pay for
the Pro-Service prior to its supply to the Customer
by such means as the Supplier may notify to the
Customer; |
| 5.3 |
Third Party Software (if any) shall be licensed
to the Customer by virtue of the user downloading
such software onto a computer system or any other
act or thing specified by the producer of such
software (“Act”). The Customer warrants
that it will abide by the terms of any such licence
as if it had undertaken the Act itself and shall
fully indemnify the Supplier from any and all
costs, expenses or other liabilities which the
Supplier may incur or suffer as a result of the
Customer’s non-compliance with this clause
5.3. |
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| 6 |
Warranties |
| 6.1 |
The Supplier warrants to the Customer that it
will perform the Services with reasonable care
and skill. |
| 6.2 |
In the event of any breach of the warranty referred
to at clause 6.1 the Supplier shall re-perform
the Services. |
| 6.3 |
If you are not a Consumer, save for the warranty
given above, all warranties, whether implied or
otherwise are expressly excluded to the fullest
extent permissible by law. |
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| 7 |
Termination |
| 7.1 |
Either party may terminate the Contract by giving
to the other not less than one month’s notice
in writing to the other. |
| 7.2 |
The Supplier may terminate the Contract a forthwith
by notice in writing to the Customer if the Customer:
- |
| 7.2.1 |
commits a breach of the Contract provided that
if the breach is capable of remedy (being actual
remedy as opposed to remedy by payment of damages
or compensation) the notice shall only be given
if the Customer shall not have remedied the same
within 30 days of having been given notice in
writing specifying the breach and requiring it
to be remedied; or |
| 7.2.2 |
being a business, has a winding up petition
presented against it and does not make an application
to set aside the same within 7 days or goes into
liquidation whether compulsorily or voluntarily
(unless as part of a bona fide scheme for amalgamation
or reconstruction first approved in writing by
the Supplier), becomes subject to an administration
order or has an administrator appointed, has a
receiver or administrative receiver appointed
over or encumbrancer take possession of the whole
or any part of its assets, compounds with its
creditors or any class of the same, ceases to
carry on its business or threatens to cease the
same or becomes unable to pay its debts within
the meaning of s.123 of the Insolvency Act 1986;
or |
| 7.2.3 |
being an individual, has a bankruptcy order
made against him or, being a partnership, has
a bankruptcy order made against any of the partners
or a notice served by a partner for the dissolution
of the partnership; |
| 7.2.4 |
has any content on the Customer Webpage which
the Supplier considers, in its sole discretion,
to be inappropriate |
| 7.2.5 |
generates or tries to generate Artificial Traffic; |
| 7.2.6 |
breaches the code of conduct in relation to
content on the Customer Webpage; |
| 7.2.7 |
has not generated any Traffic for a period of
three (3) months; |
| 7.2.8 |
has breached or is alleged to have breached
the IPRs of any company which is the proprietor
of a Third Party Website. |
| 7.3 |
Upon termination for whatever reason, the Customer
shall remove all links to the Customer Webpage
and shall immediately cease to use the Services. |
| 7.4 |
For the purposes of clause 7.2.1, the provisions
of clauses 7.2.2 to 7.2.8 shall be considered
not capable of remedy. |
| 7.5 |
Without prejudice to its other rights and remedies,
the Supplier may, at its sole option, suspend
access to any Customer Webpage without notice
to the Customer where the Customer is in breach
of any of the provisions of clause 7.2. |
| 7.6 |
Termination of the Contract for any reason shall
not affect any accrued rights or liabilities of
either party nor shall it affect the coming into
or continuance in force of any provision of the
Contract which is expressly or by implication
intended to come into or continue in force on
or after such termination. |
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| 8 |
Limitation of Liability |
| 8.1 |
The Supplier shall accept liability to the Customer
for any loss of or damage to any property or injury
to or death of person caused by any negligent
act or omission or wilful misconduct of the Supplier,
its employees, agents or sub-contractors. |
| 8.2 |
Except for the type of liability referred to
at clause 8.1 and except for any other matters
for which the Supplier’s liability may not
by law be restricted or excluded, the Supplier’s
total liability in respect of any contractual
breach or representation, statement or tortious
act or omission arising under or in connection
with the Contract (a “Default”) shall
not exceed the total sums paid by the Supplier
to the Customer in accordance with clause 4. |
| 8.3 |
Notwithstanding anything else contained in these
Conditions (and without limiting the Supplier’s
liability in respect of injury to or death of
any person caused by any negligent act or omission
or wilful misconduct of the Supplier, its employees
or sub-contractors), the Supplier shall not be
liable to the Customer for: - |
| 8.3.1 |
any losses which are not foreseeable by both
parties when the Contact is formed arising in
connection with the supply of the Services or
their use by the Customer; |
| 8.3.2 |
any losses which are not caused by any breach
by the Supplier; |
| 8.3.3 |
business or trade losses (including, without
limitation, loss of profits and consequential
losses such as loss of business and loss of goodwill). |
| 8.4 |
The Supplier shall not be liable to the Customer
for any loss arising out of any failure by the
Customer to comply with its obligations under
the Contract or resulting from the Customer’s
failure to keep restorable back-up and/or security
copies of data. |
| 8.5 |
Further, the Supplier shall not be liable for
any loss occasioned by the breach by any companies
whose Third Party Websites and/or links form part
of the Mall, of any of their obligations in respect
of their inclusion in the Mall. |
| 8.6 |
If a number of Defaults give rise to substantially
the same loss then they shall be regarded as the
same Default for the purpose of calculating the
Supplier's maximum liability pursuant to clause
8.2. |
| 8.7 |
The Customer shall afford the Supplier not less
than 30 days (following notification by the Customer)
in which (if remediable) to remedy any Default. |
| 8.8 |
Nothing in this clause 8 shall confer any right
or remedy upon the Customer to which it would
not otherwise be legally entitled. |
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| 9 |
Delay or failure to perform |
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The Supplier shall not be liable to the Customer
if it is prevented or delayed in the performing
of any of its obligations to the Customer if this
is due to any cause beyond the Supplier's reasonable
control including (without limitation): an act
of God, explosion, flood, fire or accident; war
or civil disturbance; strike, industrial action
or stoppages of work; any form of government intervention;
a third party act or omission; failure by the
Customer to give the Supplier correct information;
failure of telecommunications systems, including
the Internet and phone lines; failure of Third
Party Websites. |
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| 10 |
Notices |
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Notices or other documents to be given under
these Conditions shall be in writing (including,
without limitation, by way of email format or
'Tickets', as 'Tickets' are defined in clause
1.1) and (save in respect of emails and Tickets)
delivered by hand or sent by registered post or
facsimile to the party concerned . Any such notice
or other document shall be deemed to have been
received by the addressee if delivered, upon delivery
(including delivery to the relevant server in
the case of emails); if posted, on the second
working day following the date of posting; and
if sent by facsimile, when the communication is
transmitted to the recipient’s fax number
provided that a copy of the communication is sent
by registered post or delivered by hand as soon
as practicable thereafter. |
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| 11 |
The Customer's Statutory Rights |
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If the Customer is a Consumer, there are certain
terms implied into the Customer's Contract which
the Supplier cannot exclude or limit. For example,
under the Sale of Goods and Supply of Services
Act 1983 (as amended) the Supplier must ensure
that the Services are of satisfactory quality.
Nothing in this Contract affects these statutory
rights. |
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| 12 |
The Supplier's Privacy Policy
and Conditions of Use |
| |
By entering into the Contract, the Customer
agrees to be bound by the Supplier's Privacy Policy
and Conditions of Use and Code of Conduct. |
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| 13 |
General |
| 13.1 |
The Supplier may freely assign, sub-contract
or otherwise transfer in whole or in part the
Contract PROVIDED THAT the quality of the Services
supplied to the Customer is not affected. The
Customer may not however do so without the Supplier's
written agreement. |
| 13.2 |
No waiver by the Supplier of any breach of these
Conditions by the Customer shall be considered
as a waiver of any subsequent breach of the same
or any other provision. Any waiver must be in
writing to be effective. |
| 13.3 |
Nothing in this Contract shall create or be
deemed to create, a partnership, or relationship
of joint venturers or employer and employee between
the Customer and the Supplier. |
| 13.4 |
The Customer is responsible for the payment
of all tax and national insurance payable on any
Fees paid to him by the Supplier. |
| 13.5 |
If any provision of these Conditions is held
by any competent authority to be invalid or unenforceable
in whole or in part the validity of the other
provisions of these Conditions and the remainder
of the provision in question shall not be affected
thereby. |
| 13.6 |
The provisions of the Contracts (Rights of Third
Parties) Act 1999 are expressly excluded from
the Contract so that no third party may claim
any rights under this contract. |
| 13.7 |
The Contract is governed by the laws of England
and the English courts shall have exclusive jurisdiction
to resolve any disputes arising as a result of
or in connection with it. |
