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1 - Interpretation
2 - The Affiliate
3 - GMX Media
4 - Financial matters
5 - Warranties
6 - Limitation of Liability and Indemnity
7 - Disclosure and Collection of Information and Confidentiality
8 - Term and Termination
9 - General
1.
Interpretation
1.1 In this Agreement, the following words and expressions
shall have the following meanings:
"Affiliate" means the company or other person entering
into this Agreement with GMX Media;
"Affiliate Forms" means the form or forms to be
completed by the Affiliate specified by GMX Media on the Service
Website from time to time;
"Affiliate Tracking System" means the service to
measure the number of connections made to a Merchant Website via
the Merchant Links;
"Affiliate Website" means the Affiliate's website including
the domain name registered in the Affiliate's name;
"Chargeback" means any sum due or paid to an Affiliate
in respect of a Referral which is repayable on the basis that either
the sale in question was never concluded or the lead in question
was never realised;
"Commencement Date" means the date set out in the
Order Form upon which this Agreement comes into full force and effect;
"Commission" means the rate of commission specified
on the Service Website in relation to any Referrals;
"Intellectual Property Rights" means all trade
marks (whether registered or unregistered), logos, trade names and
copyright and other similar rights (whether now known or in the
future created) both in the United Kingdom and all other countries
of the world.
"Merchant " means GMX Media who is the recipient
of the Referrals;
"Merchant Links" means the hyperlinks to the GMX Media Website in the form specified by or agreed with GMX Media
incorporating the Intellectual Property Rights of GMX Media;
"Merchant Website" means the Merchant's website;
"Prohibited Site" means a website whose content
falls within one of the prohibited classes specified on the Service
Website;
"Referrals" means leads and/or sales (as the case
may be) that are specified on the Service Website as being the basis
on which any Commission is paid;
"Service" means GMX Media's Affiliate Program Service
more particularly described in this Agreement and the Service Website;
"Service Website" means the website maintained
by GMX Media at http://www.gmxmedia.net
"Specified Email Address" means: (a) (in the case
of GMX Media) team@gmxmedia.net with the Affiliate's account number
with GMX Media being noted in the subject matter field; and (b)
(in the case of the Affiliate) the email address specified in the
Affiliate Form.
In this document "this Agreement" shall mean the
agreement made between GMX Media and the Affiliate which shall
consist of the provisions of this document and any terms and conditions
that are intended to be binding on the Affiliate which are set out
by GMX Media on the Service Website from time to time.
2.
The Affiliate
2.1 As a condition of GMX Media entering into this Agreement,
the Affiliate shall:
(a) complete and submit to GMX Media all applicable Affiliate
Forms; and
(b) be the registered owner of the domain name directly identifying
the Affiliate Website. The Affiliate shall not have access to a
URL which simply directs Internet users to the Merchant's Website.
2.2 The Affiliate shall, upon the Commencement Date, select
a password that (in conjunction with the Affiliate ID) permits the
Affiliate access to the Affiliate Section of the Service Website.
The Affiliate shall use its best endeavours to keep the password
secure and shall immediately notify GMX Media by email at team@gmxmedia.net
if the Affiliate believes that any unauthorised use has or may be
made of such password.
2.3 The Affiliate shall, at all times, provide to GMX Media,
free of charge, accurate, complete and non-misleading information
reasonably required by GMX Media for the purposes of providing
the Service and, for the avoidance of doubt, this condition shall
apply to all information provided by the Affiliate on the Affiliate
Forms.
2.4 The Affiliate shall not use a Prohibited Site for the
purpose of making any Referrals.
2.5 The Affiliate shall not use any information or data arising
from the provision of the Service by GMX Media for the sending
of unsolicited bulk email (sometimes known as spam) and, in the
event that the Affiliate breaches or procures a breach of this condition,
GMX Media may, in its absolute discretion, suspend the payment
of all or any part of the Commission.
2.6 The Affiliate acknowledges that GMX Media shall act
upon any information or instructions that GMX Media reasonably
believes comes from the Affiliate and GMX Media shall not be liable
to the Affiliate if it does so.
2.7 The Affiliate shall ensure that the Affiliate Website
does not infringe any applicable laws, regulations and does not
contain any material which is obscene, pornographic, offensive,
defamatory, threatening, menacing, blasphemous, or in breach of
any third party Intellectual Property Rights or liable to incite
racial hatred.
2.8 The Affiliate shall immediately notify GMX Media by email
at team@gmxmedia.net if the Affiliate becomes aware of any allegation
that content on the Affiliate Website which may be in breach of
condition
2.9 The Affiliate shall not, in any circumstances, edit,
amend, modify or otherwise alter any material provided by GMX Media
to the Affiliate under this Agreement including, for the avoidance
of doubt, the Merchant Links.
2.10 The Affiliate acknowledges that the Affiliate shall
not prejudice, breach or act in a manner which is inconsistent with
the Intellectual Property Rights and other rights of GMX Media
and the Merchants and, except only to the extent set out in this
Agreement, the Affiliate shall not have or obtain any rights in
relation to the Intellectual Property Rights or any other rights
of GMX Media or the Merchants.
2.11 The Affiliate shall indemnify GMX Media against all
damages, losses and expenses arising as a result of any claim or
action that materials on the Affiliate Website infringe any Intellectual
Property Rights belonging to a Merchant or breach condition 2.7
of this Agreement.
3. GMX Media
3.1 In consideration of the Commission and subject to the
full and timely performance by the Affiliate of its obligations
under this Agreement, GMX Media shall use its reasonable endeavours
to provide the Service.
3.2 GMX Media hereby grants to the Affiliate, a worldwide,
non-exclusive, royalty free, non-transferable licence to display
the Merchant Links on the Affiliate Website.
3.3 In the context of overseeing and administering the Service,
GMX Media may monitor the Affiliate Website and any links from
it.
3.4 GMX Media shall use its reasonable endeavours to check
that the Affiliate Tracking Service has not, for whatever reason,
been deleted or removed from the Merchant's Website or deactivated
or tampered with in any way.
4. Financial Matters
4.1 Payments will be made every thirty (30) days from the
release date of a particular product.
4.2 GMX Media may only recover any Chargeback from the
Affiliate if the Chargeback event both occurs and is notified to
GMX Media by the Merchant in writing within 21 (twenty-one) working
days of the end of the calendar month in which the applicable Referral
took place.
4.3 Where: (a) the amount
of fees payable to you do not exceed £50 we will
continue to hold these for you until the earlier
of: (i) the quarter date on which the amount of
fees we hold for you exceed £50 whereupon the
whole amount shall be paid to you; and (ii) the
date of termination of this Agreement; (b) any
Products which generated a fee for you are returned
by a customer and in relation to which we give
a credit or reimbursement to that customer we
will be entitled to deduct the same from moneys
(commission) we hold on your account or if there
are none we will send you an invoice for the same
which shall be payable within seven (7) days of
receipt (time being of the essence).
4.4 Commission can only be
earned on COMPLETED SALES, (Approved and Shipped
to the customer).
5. Warranties
5.1 GMX Media hereby warrants to the Affiliate that (a) it
will perform the Services with due care and skill and in a professional
manner; and (b) it has full power and authority to enter into and
perform this Agreement.
5.2 The Affiliate hereby warrants to GMX Media that (a) it
has full power and authority to enter into and perform this Agreement;
(b) all information provided by the Affiliate shall be complete,
accurate and non-misleading; (c) it will comply with all its duties
under any data protection laws and regulations applicable to the
Affiliate Website; (d) its performance of its obligations under
this Agreement will not infringe the Intellectual Property Rights
of any third party; (e) none of the information or materials supplied
by the Affiliate to GMX Media shall be libellous, obscene, or abusive
nor shall it breach any law or regulation or give rise to any legal
claims of any sort.
5.3 Subject to condition 5.1, all conditions, warranties,
representations or other terms concerning the supply of Service
which might otherwise be implied or incorporated into this Agreement
or any collateral contract, whether by statute, common law, custom
or otherwise are hereby expressly excluded to the fullest extent
permitted by law.
5.4 Subject to the remaining terms of this Agreement, GMX Media does not warrant that the provision of the Service or access
to the Service Website (or any part of it) will be uninterrupted
or error free .
5.5 GMX Media gives no warranty or representation in respect
of the commercial benefit or amount of Commission to be derived
from the use by the Affiliate of the Services or that the provision
of the Service and the Affiliate Tracking System will be uninterrupted
or error free.
6. Limitation of Liability and Indemnity
6.1
SUBJECT TO CONDITIONS 6.2 AND 6.3 BELOW GMX Media'S TOTAL LIABILITY
TO THE AFFILIATE INCLUDING IN CONTRACT AND TORT (INCLUDING THE TORT
OF NEGLIGENCE) SHALL NOT EXCEED £1,000.00 (ONE THOUSAND POUNDS).
6.2 None of the limitations and exclusions of liability set
out in this Agreement shall apply: (a) in respect of death or personal
injury caused by a party's negligence (for which no limit of liability
shall apply); or (b) in the case of fraud; or (c) in respect of
any breach of the terms implied by Section 12 Sales of Goods Act
1979 and Section 2 Supply of Goods and Services Act 1982; or (d)
any other liability which cannot be limited or excluded under applicable
law.
6.3 Notwithstanding anything else in this Agreement, GMX Media shall not be liable to the Affiliate for loss of profits,
contracts, loss of reputation, loss caused by any third party deleting,
removing, deactivating or tampering with the Affiliate Tracking
Service or other indirect or consequential loss whether arising
from negligence, breach of contract or howsoever.
6.4 The Affiliate shall immediately indemnify GMX Media against
all proceedings, fees, expenses, payments, liabilities, injury,
costs and damages arising out of:
(a) the breach by the Affiliate of any of its obligations
under this Agreement; and
(b) any express or implied warranties, representations, confirmations
or acknowledgements that are given by the Affiliate and prove to
be untrue
6.5 Neither party shall be liable to the other for any force
majeure event being any situation (other than a failure to pay moneys
due to the other party) in which it fails to comply with its obligations
under this Agreement due to anything beyond its reasonable control.
7. Disclosure and Collection of Information
and Confidentiality
7.1 The Affiliate confirms that the following information
may be posted on the Service Website:
(a) the Affiliate's identity as one of the entities that
has subscribed to the Service; and
(b) any information (other than confidential information)
that is submitted by the Affiliate to GMX Media.
7.2 The Affiliate confirms that in order to enable GMX Media
to improve and/or in order to promote or market the Service GMX Media may produce statistics or summaries relating to the use of
the Service; and GMX Media may contact the Affiliate by email, telephone
or post for feedback regarding the Service including any ways in
which it might be improved, in any additional services or facilities
introduced by GMX Media or in relation to the affiliate programme
matters at any time. None of the information referred to in this
condition 6.2 shall identify the Affiliate.
7.3 Each party agrees and undertakes that both before and
following termination of this Agreement for whatever reason it shall
keep confidential and shall not use for its own purposes, or without
the prior written consent of the other party, disclose to any third
party, any information disclosed to it in connection with this Agreement
(whether orally or in writing), and which is expressly stated or
marked as being confidential or which ought reasonably to be treated
as such, unless such confidential information is public knowledge
other than as a result of a breach of this condition, has been independently
acquired from a third party without restriction on disclosure, is
required by law or any regulatory body or is required to be disclosed
for the purposes of litigation by or against either party.
8.
Term and Termination
8.1 This Agreement shall commence on the Commencement Date
and it shall continue for an initial period of one year ("the
Initial Term") and shall continue thereafter for further periods
of one year unless and until terminated by either party at any time
with immediate effect.
8.2 The termination of this Agreement shall not limit the
enforceability of any of the rights or obligations of the parties
that accrued before the termination date.
8.3 Upon the termination of the Agreement, the Affiliate
shall immediately remove all the Merchant Links from the Affiliate
Website and, for the avoidance of doubt, the Affiliate shall not
be entitled to receive any Commission on any Referrals made after
the termination date.
8.4 The Affiliate shall acquire no rights following the termination
of this Agreement to use Intellectual Property Rights of GMX Media
or the Merchant including domain names or any text, or images, banners
or any other works created by or for GMX Media or the Merchant.
8.5 Conditions 5, 6 and 7 shall survive the termination of
this Agreement.
9. General
9.1 The terms and conditions of this Agreement shall apply
as between the parties in respect of the subject matter to the exclusion
of all other terms and conditions (including any terms and conditions
that the Affiliate purports to apply).
9.2 This Agreement may not be assigned by the Affiliate without
GMX Media's prior written consent.
9.3 GMX Media shall be entitled to appoint any sub-contractor
for the provision of the Services.
9.4 No forbearance, delay or indulgence by either party in
enforcing the provisions of this Agreement shall prejudice or restrict
the rights of that party nor shall any waiver of its rights operate
as a waiver of any subsequent breach and no right, power or remedy
herein conferred upon or reserved for either party is exclusive
of any other right, power or remedy available to that party and
each such right, power or remedy shall be cumulative.
9.5 This Agreement shall be binding upon and enure for the
benefit of the successors in title of the parties hereto.
9.6 If any provision in this Agreement shall in whole or
in part be held to any extent to be illegal or unenforceable under
any enactment or rule of law then that provision or part shall to
that extent be deemed not to form part of this Agreement and the
enforceability of the remainder of this Agreement shall not be affected.
9.7 GMX Media and the Affiliate are each independent contractors
with respect to each other and nothing in the Agreement shall create
any association, partnership, joint venture or agency relationship
between them.
9.8 This Agreement contains the entire understanding of the
parties with respect of the subject matter hereof, supersedes all
prior agreements and may not be modified or amended except in writing
signed by the parties.
9.9 GMX Media shall not be liable to the Affiliate for loss
arising from or in connection with any representations (except fraudulent),
agreements, statements or undertakings made prior to the date of
execution of this Agreement other than those representations, agreements,
statements or undertakings confirmed by a duly authorised representative
of GMX Media in writing or expressly incorporated or referred to
in this Agreement.
9.10 For the purposes of the Contracts (Rights of Third Parties)
Act 1999, and notwithstanding any other provision of this Agreement,
this Agreement is not intended to, and does not, give any person
who is not a party to it any right to enforce any of its provisions
except for any subsidiary, holding company or other group company
of GMX Media.
9.11 All notices proceedings or other formal documents to
be served by either party on the other shall be delivered by hand
or by recorded delivery to the other's address as set out at the
head of this Agreement (or to an alternative address subsequently
notified in writing) or to the Specified Email Address of each of
the parties and notices shall be deemed to be received upon delivery.
9.12 This Agreement is subject to the laws of England and
shall be subject to the non-exclusive jurisdiction of the English
courts.
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