Affiliate partnering agreement
This Agreement is made by and between:
- MOBILESHOP.COM Ltd a company incorporated in England whose registered office is at Millennium House, Fox Covert Lane, Misterton, Doncaster, South Yorkshire, DN10 4ER
- You or the Affiliate or (Affiliate)
WHEREAS
- MobileShop.com Ltd has developed and operates a service, which allows you to earn money by placing a Mobile Phone Shop on Your website
- In order to use the service you must accept the conditions of this Agreement and become authorised as an "Affiliate". Please read this Agreement carefully. By clicking on the "Register" button you accept the conditions of this Agreement. You are not allowed to use the service if you do not accept the provisions of this Agreement.
- MobileShop.com Ltd must accept you before you can become an affiliate. You will be informed through the smartengine website www.fonetasticmobile.net when you have been accepted as an Affiliate
IT IS AGREED AS FOLLOWED:
1. INTERPRETATION
1.1
In this Agreement, unless the context otherwise requires, the following expressions have the following meanings:
| EXPRESSION |
MEANING |
| MS.com |
Abbreviation for "MobileShop.com Ltd" |
| Affiliate |
Is an individual or company which has entered into an agreement to operate the MS.com Mobile Phone Shop on one or many partner website(s) which they operate. |
| Reseller |
Any affiliate can become a reseller by signing up other affiliates. The reseller will receive an over rider commission on each transaction made by “their” affiliates. |
| Partner Website |
The website owned or operated by the affiliate which is operating the MobileShop.com Mobile Phone Shop. |
| Commencement Date |
The date the “partner website” puts the system Live |
| Transaction/Sale |
The legally confirmed connection of a user to a post pay airtime contract. |
| Party |
A party to this Agreement and "parties" means both parties to this Agreement. |
1.2
Unless the context otherwise requires, the singular includes the plural and vice versa.
1.3
Reference in this Agreement to any statute or regulation shall include references to such statute or regulation as enacted, consolidated, amended or extended from time to time.
1.4
Headings are inserted for convenience only and shall not affect the construction of any provision of this Agreement.
2. AFFILIATE OBLIGATIONS
2.1
With effect from the Commencement Date, the Affiliate shall allow the MS.com Mobile Phone Shop to be integrated within certain web pages of the Partner Website subject to the terms and conditions of this Agreement. The integration of the MS.com Mobile Phone Shop within the Partner Website shall be in a manner agreed between the parties from time to time.
2.2
The Affiliate:
2.2.1
May not alter the size, content, structure or form of the MS.com Mobile Phone Shop or its position in the Partner Website without the prior written consent of MS.com;
2.2.2
Devote such of its time, attention and skill as may be necessary for the proper performance of its obligations under this Agreement; and
2.2.3
Use all reasonable endeavours to promote the interests and goods and/or services promoted by MS.com via the Partner Website.
3. MS.com'S OBLIGATIONS
3.1
MS.com shall within 30 days of the end of each month provide the Affiliate or Reseller with a report in electronic form on www.fonetasticmobile.net providing the following details:
3.1.1
The number of transactions of the MS.com Mobile Phone Shop;
3.1.2
The amount of commission due to the affiliate or Reseller
3.1.3
The date the affiliate or Reseller will receive payment by MS.com
3.2
MS.com shall within 30 days of producing the affiliate or Resellers month end report pay the affiliate or Reseller all commissions due for the month stated in the report.
MS.com will pay affiliates on all successful connections however MS.com will claw back commissions on any fraudulent or returned connections.
3.3
MS.com shall pay the affiliate or Reseller by cheque. If the transaction is below £100.00 GBP payment will be held until £100 or more has been reached and a cheque will be issued 30 days from the end of the following month.
3.4
VAT will only be paid where the affiliate or Reseller has registered a legitimate VAT number in it's registration with MS.com.
3.5MS.com shall:
3.5.1
Make available to the Affiliate or Reseller such of its systems, facilities, documentation, information and documents as may reasonably be necessary to enable the Affiliate to perform its obligations under this Agreement;
3.5.2
Be responsible for the costs of providing services via the MS.com Mobile Phone Shop;
3.6
The Affiliate may request the following action at any time during the continuance of this Agreement:
3.6.1
That MS.com amends the MS.com Mobile Phone Shop contract so that it is noted as "[partnerwebsite] in association with FoneTastic Warehouse" to assist in developing the brand identity of the Affiliate; and
3.6.2
That viral marketing features which appear as part of the MS.com Mobile Phone Shop (such as the feature "Big Win") or which are from time to time developed by MS.com as part of the MS.com Mobile Phone Shop are branded in accordance with the Affiliate's own brand identity. MS.com shall however not be obliged to comply with any such request.
4. RESELLER OBLIGATIONS
4.1
The reseller shall to its best ability recruit only good quality and reputable affiliates to use the MS.com Mobile Phone Shop
5. CONTROL OF WEBSITE CONTENT
5.1
MS.com may at any time remove the Mobile Phone Shop from the Partner Website:
5.1.1
If MS.com considers that the Partner Website :
5.1.1.1
Under the laws of any jurisdiction, infringe the intellectual property, moral or other rights of any third party or be obscene, defamatory or otherwise unlawful;
5.1.1.2
Be in breach of any applicable laws, regulations, standards or codes of practice; or
5.1.1.3
Harm its reputation, is inconsistent with its commercial policies or strategy or result in a breach of any contractual obligation owed by MS.com; or
5.1.2
In respect of which a breach or infringement of the type referred to at clauses 5.1.1 to 4.1.3 above is alleged. [In any of the circumstances mentioned in clauses 5.1.1 or 5.1.2, MS.com may also, without prejudice to its other rights or remedies immediately terminate this Agreement by notice in writing to the Affiliate.]
5.2
The Affiliate shall notify MS.com immediately upon becoming aware of any allegation as is referred to at clause 5.1.2 above.
6. INTELLECTUAL PROPERTY
6.1
All intellectual property rights in the MS.com Mobile Phone Shop (including without limitation copyright) shall belong to MS.com. The Affiliate may not use the MS.com Mobile Phone Shop nor reproduce it (in whole or in part or in any form whatsoever) save for the purpose of performing its obligations under this Agreement.
6.2
The Affiliate shall ensure that all copyright and other credits and notices required at any time by MS.com shall appear on the Partner Website.
7. DURATION
7.1
This Agreement shall commence on the Commencement Date and shall continue, subject to earlier termination in accordance with the provisions of this Agreement, shall continue for twelve months until terminated by either party on 90 days written notice
7.2
Either party may terminate this Agreement immediately upon written notice to the other:-
7.2.1
If the other party commits any material breach of this Agreement provided that if the breach is capable of remedy the notice shall only be given if the other party 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
The other party being a company shall pass a resolution (or suffer an order of the Court to be made) for its winding up, or if a Receiver or an Administrator shall be appointed, or if a petition for the appointment of an Administrator shall be presented in respect of it, or being an individual or partnership shall suspend payment or propose to enter into any composition with creditors or become unable to pay its debts (or have no reasonable prospect of so doing) or suffer a bankruptcy order.
7.3
Upon the termination of this Agreement for whatever reason:
7.3.1
All rights and obligations of the parties under this Agreement shall automatically terminate except for such rights of action or remedies which may have accrued prior to termination and any obligations which expressly or by implication are intended to come into or continue in force on or after such expiration or termination; and
7.3.2
The Affiliate shall return to MS.com all documents, information, software or other property belonging to MS.com and cease to use any content from the MS.com Mobile Phone Shop and shall not retain any copies in any format.
8. CONFIDENTIALITY
8.1
Each party shall keep strictly confidential all information concerning the business and affairs of the other obtained from the other either pursuant to this Agreement or prior to and in contemplation of it, shall use the same exclusively for the purposes of this Agreement, and shall disclose the same only to those of its directors and employees to whom and to the extent that such disclosure is reasonably necessary for the purposes of this Agreement.
8.2
The obligations of clause 8.1 above shall not apply to any information which:-
8.2.1
The recipient can demonstrate was already in its possession and at its free disposal prior to receipt under the circumstances mentioned at clause 8.1 above;
8.2.2
Is subsequently disclosed to the recipient without any obligation of confidence by a third party who has not derived it directly or indirectly from the disclosing party; or
8.2.3
Enters the public domain through no act or default of the recipient, its agents or employees.
8.3
The obligations of the parties under this Clause 8 shall continue to apply for a period of five years following the termination of this Agreement.
9. STANDARDS AND DATA PROTECTION
9.1
Each party warrants to the other that it shall perform its obligations under this Agreement with reasonable skill and care and in conformance with applicable law including without limitation the Data Protection Act 1998 (the "Act").
9.2
Without prejudicing the generality of clause 9.1, where either party processes personal data (as defined by the Act) on behalf of or at the request of the other party (the "Other Party"), it shall:
9.2.1
Do so in strict accordance with the instructions of the Other Party;
9.2.2
Notify the Other Party immediately of any notice served on or sent to it under the Act by the Information Commissioner (including in particular any de-registration, enforcement or transfer prohibition notice) or by a customer of the Other Party or subscriber to its network services.
9.2.3
Comply in all respects with any data protection policy relating to the processing of personal data as the Other Party may notify to it in writing from time to time.
9.2.4
Not assign nor sub-contract the whole or any part of the processing of personal data to a third party without the consent of the Other Party and then only on terms that such assignee or contractor executes a contract direct with the Other Party imposing on them obligations equivalent to those contained in this Agreement.
9.2.5
Allow the Other Party on reasonable notice to inspect any premises where the processing of personal data takes place and to inspect and copy any relevant documentation in order for the Other Party to satisfy itself that the provisions of clauses 9.1 and 9.2 are being complied with.
9.3
Save where the written consent of MS.com is first obtained, the Affiliate may not:
9.3.1
Cause nor facilitate the linking of the MS.com Mobile Phone Shop to any website or network not owned or operated by MS.com;
9.3.2
Make use of cookies, web bugs or other device or file which track and/or record information specific to browsers accessing the MS.com Mobile Phone Shop; nor
9.3.3
Do anything which impairs or is likely to impair the operation, availability or functionality of the MS.com Mobile Phone Shop (including without limitation the use of frames) or any other system of MS.com or any customer of MS.com.
9.4
The Affiliate warrants that the Partner Website shall be accessible and functional to web browsers at least 80 per cent of the time unless necessary maintenance work is required during any Quarter Period.
10. INDEMNITY
The Affiliate shall indemnify MS.com and keep MS.com fully and effectively indemnified against any and all losses, claims, damages, costs, charges, expenses, liabilities, demands, proceedings and actions which MS.com may sustain or incur or which may be brought or established against it by any person and which in any case arise out of the breach by the Affiliate of any provision of this Agreement.
11. FORCE MAJEURE
Neither party shall be liable for any delay in performing any of its obligations under this Agreement if such delay is caused by circumstances beyond the reasonable control of the party so delaying and such party shall be entitled (subject to giving the other party full particulars of the circumstances in question and to using its best endeavours to resume full performance without avoidable delay) to a reasonable extension of time for the performance of such obligations.
12. GENERAL
12.1
The Affiliate is an independent contractor and nothing in this Agreement shall render it an agent or partner of MS.com and the Affiliate shall not hold itself out as such. The Affiliate shall not have any right or power to bind MS.com to any obligation.
12.2
MS.com shall not be liable to the Affiliate for any indirect, special or consequential loss or damage, whether for loss of profit or otherwise (whether or not caused by the negligence of MS.com) which arises out of or in connection with this Agreement. Nothing in this clause shall however exclude or limit MS.com's liability for fraud or for personal injury or death resulting from its negligence.
12.3
This Agreement is freely assignable by MS.com. The Affiliate may not assign, transfer or sub-contract any of its rights and obligations under this Agreement save with MS.com's prior written consent.
12.4
All notices or other documents to be given under this Agreement shall be in writing and in the English language and shall be delivered by hand or sent by registered post or facsimile to the party concerned at the address MS.com out at the head of this Agreement or such other address as one party may from time to time designate by written notice to the other. Any such notice or other document shall be deemed to have been received by the addressee if delivered, upon delivery; 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 after transmission.
12.5
This Agreement constitutes the entire understanding between the parties concerning its subject matter and shall be governed by and construed in accordance with the laws of England. The parties agree to submit all matters in dispute under or in connection with this Agreement to the non-exclusive jurisdiction of the English courts.
12.6
No waiver or amendment of any provision of this Agreement shall be effective unless made by a written instrument signed by a Director of MS.com. No other person has any authority to alter or qualify the terms and conditions of this Agreement.
12.7
Each provision of this Agreement shall be construed separately and notwithstanding that the whole or any part of any such provision may prove to be illegal or unenforceable the other provisions of this Agreement and the remainder of the provision in question shall continue in full force and effect.
12.8
MobileShop.com Ltd will pay the affiliate monies owed based only on the month end report subject to 3.1. Any orders/sales that have been deemed fraudulent or unfair and/or where MS.com have incurred a cost or have not received payment will not be paid on and will be reflected within the month end report. This may mean discrepancies from time to time with online figures and the month end report.
MobileShop.com Ltd
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