These are the terms and conditions of sale of Marblemand
Limited whose registered office is at 80 Hartington
Road, Stockton-On-Tees TS18 1HE. These terms will
apply to any agreement between the Affinity Planet
and the Value Added Partner in respect of the Value
Added Partner Services (as defined below).
| 1 |
Interpretation |
| 1.1 |
In these Conditions the following terms shall
have the following meanings: |
| “Affinity
Planet” |
Marblemand
Limited a company incorporated in England
& Wales under registered number 1354689 |
| “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 |
| “Conditions” |
the terms set
out in this document and any applicable
supplemental terms of Affinity Planet |
| “Contract” |
the contract
between Affinity Planet and the Value Added
Partner in respect of the supply of the
Value Added Partner Services to Affinity
Planet |
| “Customer” |
any person who
signs up to the supply of the Services by
Affinity Planet via the Value Added Partner
Services |
| “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 Affinity Planet
may choose for the Customer from Affinity
Planet'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 PROVIDED THAT the
relevant Customer has signed up to the Services
via the Value Added Partner Website(s |
| “Mall” |
those companies'
websites and/or weblinks which the Customer
chooses (from a list of third party websites
supplied by Affinity Planet) ("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 3 of these Conditions, the system
by which Affinity Planet makes sums available
to the Value Added Partner in accordance
with the provisions of clause 3; references
in clause 3 to "Paid", "Payment"
and "Payable" shall be construed
accordingly |
| “Value
Added Partner” |
the person or
business who agrees to be bound by these
terms and supply the Value Added Partner
Services |
| “Value
Added Partner Services” |
the advertisement
of the Affinity Planet Website(s) in accordance
with these Conditions and as agreed with
Affinity Planet in writing from time to
time |
| “Value
Added Partner Website(s)” |
those websites
(if any) which Affinity Planet and the Value
Added Partner agree in writing |
| “Services”
|
the services
under which a Customer may utilise a customised
Mall of Third Party Websites on the Customer
Webpage on Affinity Planet's Website(s)
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 |
| “Tickets” |
an electronic
ticketed communication, contained within
Affinity Shopper, that enables tracked communication
between the Customer and Affinity Planet |
| “Traffic” |
the collective
term for Leads and Transactions (as defined)
resulting from Customers who have signed
up to the Services via the Value Added Partner
Services |
| “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 PROVIDED THAT the relevant
Customer has signed up to the Services via
the Value Added Partner Services |
| “Visitor” |
any person who
clicks on a link to a Third Party Website
and is connected to a Third Party Website |
| “Affinity
Planet Website(s)” |
www.affinityshopper.com.
|
|
| |
|
| 2 |
Basis of the Contract |
| 2.1 |
In consideration of the Value Added Partner
supplying the Value Added Partner Services, Affinity
Planet shall pay the Value Added Partner the sums
set out in clause 3 in accordance with these Conditions.
The Services supplied by Affinity Planet are only
supplied to those Customers with a valid United
Kingdom bank account. |
| 2.2 |
Affinity Planet hereby grants the Value Added
Partner a royalty-free licence to use such information
about the Affinity Planet Services as Affinity
Planet may agree in writing in order to perform
the Value Added Partner Services during the term
of this Contract. |
| 2.3 |
These Conditions are the only terms and conditions
on which Affinity Planet is prepared to deal with
the Value Added Partner and shall apply to the
exclusion of any other express conditions. No
variation or addition to these Conditions shall
be binding upon Affinity Planet unless agreed
in writing between Affinity Planet and the Value
Added Partner. |
| 2.4 |
Subject to any variation in accordance with
clause 2.3, these Conditions embody the entire
understanding of the parties and override any
prior promises, undertakings or representations. |
| 2.5 |
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 Affinity Planet may
be corrected by Affinity Planet without liability. |
| 2.6 |
Affinity Planet shall be entitled to deal with
Customers and enforce any rights granted to it
in accordance with the Standard Consumer Terms
And Conditions Of Supply (Mall Partners) (a copy
of which is available to view on our websites
or available on request) at any time without reference
to the Value Added Partner. |
| 2.7 |
Any Affinity Planet IPRs which Affinity Planet
expressly authorises the Value Added Partner to
use under the Contract shall be used solely for
the purposes of supplying the Value Added Services
and the Value Added Partner shall have no rights
to use such IPRs other than those rights specifically
stated in these Conditions. |
| |
|
| 3 |
Payments to the Value Added
Partner |
| 3.1 |
Affinity Planet shall Pay the Value Added Partner
fees in respect of all Traffic made by a Visitor
on a Third Party Website via a Customer Webpage
(the "Fees"). The Fees Payable will
be as communicated to the Value Added Partner
by the Supplier. |
| 3.2 |
The Fees Payable under clause 3.1 shall be payable
in accordance with the following: - |
| 3.2.1 |
the Value Added Partner may, subject to clause
3.2.2, draw down accumulated Fees [within 60 days
from] when the relevant Customers have generated
valid Traffic and Affinity Planet has received
payment from the representative of each company
whose website is comprised in the Customer's Mall; |
| 3.2.2 |
Sums can only be drawn down once the Value Added
Partner 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
Value Added Partner may, subject to the amounts
accrued, draw down any of that sum as it wishes.
Any monies left in do not accrue interest. |
| 3.3 |
Affinity Planet will create the invoice for
the Fees on behalf of the Value Added Partner.
VAT (if applicable) is added to the Fees. |
| 3.4 |
Payment of the Fees to the Value Added Partner
will be made direct to the bank account which
the Value Added Partner nominates when applying
to enter into the Contract. |
| |
|
| 4 |
Warranties |
| 4.1 |
Affinity Planet warrants to the Value Added
Partner that it will perform the Services with
reasonable care and skill. |
| 4.2 |
In the event of any breach of the warranty referred
to at clause 6.1 Affinity Planet shall re-perform
the Services. |
| 4.3 |
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. |
| 4.4 |
The Value Added Partner warrants that it has
the authority to enter into this contract, that
(if applicable) it is the owner of the Value Added
Partner Website(s) and that it will perform the
Value Added Partner Services with reasonable skill
and care. |
| |
|
| 5 |
Termination |
| 5.1 |
Either party may terminate the Contract by giving
to the other not less than one month’s notice
in writing to the other. |
| 5.2 |
Affinity Planet may terminate the Contract a
forthwith by notice in writing to the Value Added
Partner if the Value Added Partner: - |
| 5.2.1 |
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 |
| 5.2.2 |
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
Affinity Planet), 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 |
| 5.2.3 |
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; |
| 5.2.4 |
if relevant, has any content on the Value Added
Partner Website(s) which Affinity Planet considers,
in its sole discretion, to be inappropriate; |
| 5.2.5 |
does anything which, in the reasonable opinion
of Affinity Planet, is inappropriate; |
| 5.2.6 |
generates or tries to generate Artificial Traffic; |
| 5.2.7 |
has breached or is alleged to have breached
the IPRs of any company which is the proprietor
of a Third Party Website. |
| 5.3 |
Upon termination for whatever reason, the Value
Added Partner shall remove all links to the Affinity
Planet Website(s). |
| 5.4 |
For the purposes of clause 5.2.1, the provisions
of clauses 5.2.3 to 5.2.7 shall be considered
not capable of remedy. |
| 5.5 |
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. |
| |
|
| 6 |
Limitation of Liability |
| 6.1 |
Affinity Planet shall accept liability to the
Value Added Partner 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 Affinity Planet, its employees,
agents or sub-contractors. |
| 6.2 |
Except for the type of liability referred to
at clause 6.1 and except for any other matters
for which Affinity Planet’s liability may
not by law be restricted or excluded, Affinity
Planet’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 Affinity
Planet to the Value Added Partner in accordance
with clause 3 in the preceding 3 months. |
| 6.3 |
Notwithstanding anything else contained in these
Conditions (and without limiting Affinity Planet’s
liability in respect of injury to or death of
any person caused by any negligent act or omission
or wilful misconduct of Affinity Planet, its employees
or sub-contractors), Affinity Planet shall not
be liable to the Value Added Partner for: - |
| 6.3.1 |
any losses which are not foreseeable by both
parties when the Contact is formed arising in
connection with the Contract; |
| 6.3.2 |
any losses which are not caused by any breach
by Affinity Planet; |
| 6.3.3 |
business or trade losses (including, without
limitation, loss of profits and consequential
losses such as loss of business and loss of goodwill). |
| 6.4 |
Affinity Planet shall not be liable to the Value
Added Partner for any loss arising out of any
failure by the Value Added Partner to comply with
its obligations under the Contract or resulting
from the Value Added Partner’s failure to
keep restorable back-up and/or security copies
of data. |
| 6.5 |
Further, Affinity Planet 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. |
| 6.6 |
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 Affinity
Planet's maximum liability pursuant to clause
6.2. |
| 6.7 |
The Value Added Partner shall afford Affinity
Planet not less than 30 days (following notification
by the Customer) in which (if remediable) to remedy
any Default. |
| 6.8 |
Nothing in this clause 6 shall confer any right
or remedy upon the Value Added Partner to which
it would not otherwise be legally entitled. |
| |
|
| 7 |
Delay or failure to perform |
| |
Affinity Planet shall not be liable to the Value
Added Partner if it is prevented or delayed in
the performing of any of its obligations to the
Value Added Partner if this is due to any cause
beyond Affinity Planet'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 Value Added Partner
to give Affinity Planet correct information; failure
of telecommunications systems, including the Internet
and phone lines; failure of Third Party Websites. |
| |
|
| 8 |
Notices |
| |
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. |
| |
|
| 9 |
The Value Added Partner's
Statutory Rights |
| |
If the Value Added Partner is a Consumer, there
are certain terms implied into the Customer's
Contract which Affinity Planet cannot exclude
or limit. For example, under the Sale of Goods
and Supply of Services Act 1983 (as amended) Affinity
Planet must ensure that the Services are of satisfactory
quality. Nothing in this Contract affects these
statutory rights. |
| |
|
| 10 |
Affinity Planet's Privacy
Policy and Conditions of Use |
| |
By entering into the Contract, the Value Added
Partner agrees to be bound by Affinity Planet's
Privacy Policy and Conditions of Use and Code
of Conduct. |
| |
|
| 11 |
General |
| 11.1 |
Affinity Planet 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 Value Added Partner is not affected.
The Value Added Partner may not however do so
without Affinity Planet's written agreement. |
| 11.2 |
No waiver by Affinity Planet of any breach of
these Conditions by the Value Added Partner 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. |
| 11.3 |
Nothing in this Contract shall create or be
deemed to create, a partnership, or relationship
of joint venturers or employer and employee between
the Value Added Partner and Affinity Planet. |
| 11.4 |
The Value Added Partner is responsible for the
payment of all tax and national insurance payable
on any Fees paid to him by Affinity Planet. |
| 11.5 |
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. |
| 11.6 |
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. |
| 11.7 |
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. |
