Terms and Conditions
AFFLOW LIMITED (“AFFLOW”) IS WILLING TO GRANT ACCESS TO THE SERVICE TO THE AFFILIATE (BEING THE SOLE TRADER, COMPANY, PARTNERSHIP, BUSINESS OR OTHER ENTITY NAMED IN THE REGISTRATION FORM) ON THESE STANDARD TERMS AND CONDITIONS (“STANDARD TERMS”). THE AFFILIATE MUST READ THESE STANDARD TERMS CAREFULLY BEFORE USING THE SERVICE. ONCE ENTERED, THE REGISTRATION FORM, THESE STANDARD TERMS, THE AFFLOW CODE OF CONDUCT AND THE AFFLOW WEBSITE TERMS CONSTITUTE A LEGAL AND ENFORCEABLE CONTRACT BETWEEN THE AFFILIATE AND AFFLOW (THE “AGREEMENT”). BY ACCESSING THE SERVICE, CLICKING THE [“I AGREE”] OR [“YES”] BUTTON, OR OTHERWISE INDICATING AGREEMENT ELECTRONICALLY, THE AFFILIATE AGREES TO THE AGREEMENT. IF THE AFFILIATE DOES NOT AGREE TO THE AGREEMENT, THE AFFILIATE SHOULD CLICK THE [“I DO NOT AGREE”] OR [“NO”] BUTTON OR OTHERWISE INDICATE REFUSAL AND MAKE NO USE OF THE SERVICE.
1.1 The following definitions apply to this Agreement:
“Account”: the Affiliate user account on the Service issued to the Affiliate by Afflow on successful registration.
“Advertising Standards”: any applicable advertising law, regulations or standards, data laws relating to advertising (including the Children’s Online Privacy Protection Act), any generally accepted self-regulatory codes of practice, and any related guidance or best practice advice.
“Advertiser”: an online retailer or business participating in a Third Party Network for the purposes of engaging third party affiliate marketers to promote it or its products or services.
“Advertiser Offer”: any trade marks, advertising content, images, text, video, data or other material provided to Afflow by or on behalf of Advertisers or a Third Party Networks, including any offers of Products.
“Advertiser Website”: means, from time to time, any websites, apps or services of an Advertiser.
“Affiliate”: the person, company, partnership, business or other entity named in the Registration Form.
“Affiliate Website”: a website, application or service operated by the Affiliate (amongst other purposes) to display Advertiser Offer or otherwise promote Advertisers or their Products.
“Afflow Page”: means any webpages created and hosted by Afflow, in which Advertiser Offer may be displayed on behalf of the Affiliate.
“Business Day”: any day which is not a Saturday, Sunday or public holiday in the UK.
“Code of Conduct”: the Afflow code of conduct for affiliate marketers, as set out on the Service from time to time.
“Commission”: monies actually received by Afflow from the respective Advertiser in respect of Transactions.
“Data Protection Legislation”: means any data protection, privacy or similar laws that apply to data processed in connection with this Agreement, including any regulations implementing the Data Protection Directive 95/46/EC (the “Directive”) or Privacy and Electronic Communications Directive 2002/58.
“Fees”: the fees payable by the Affiliate to Afflow for access to the Service (including any additional features of the Service), as set out on the Service from time to time.
“Intellectual Property Rights”: all copyright and related rights, patents, rights to inventions, utility models, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection.
“Link”: a hyperlink from an Affiliate Website, Traffic Source or Afflow Page to an Advertiser Website.
“Product”: a product, service or equivalent offered for sale by an Advertiser on any Advertiser Website.
“Registration Form”: the online registration form for applications for affiliate marketer user accounts on the Service from time to time.
“Service”: the Afflow online service and advertising network, any algorithms used by Afflow to select Advertiser Offers for display on Afflow Pages, any Afflow Pages, and the Afflow website at app.afflow.rocks, which enables businesses to monetise their website traffic (amongst other things).
“Third Party Network”: the operator of a marketing network of online advertisers to facilitate, amongst other things, affiliate and performance marketing and which has agreed to permit Afflow to join its network and permit affiliate marketers to market advertisers or their products.
“Third Party Network Terms”: as applicable, the terms of business for affiliate marketers of any Third Party Networks, the terms or conditions of any Advertisers for the promotion of those Advertiser or any of their Products and the terms of any search engines.
“Traffic Sources”: means any sources of website traffic procured by the Affiliate.
“Transaction”: the clicking of a Link, implemented by or on behalf of the Publisher under this Agreement, by a Visitor and/or an agreement by a Visitor to the purchase of a Product and/or the generation of a sales lead for an Advertiser and/or the serving of Advertiser Offer on the Affiliate Website or Afflow Page to a Visitor, each subject to the relevant Third Party Network Terms.
“Visitor” means any person who follows a Link.
1.2 A “person” includes a natural person, corporate or unincorporated body.
1.3 Unless the context otherwise requires, words in the singular include the plural and in the plural include the singular.
1.4 The words “include” and “including” (or similar) shall be deemed to have the words “without limitation” after them.
1.5 A reference to “writing” or “written” includes email.
1.6 The terms, “personal data”, “process”, “data controller” and “processing” have the meanings given to them in the Data Protection Act 1998.
1.7.1 these Standard Terms;
1.7.2 the Registration Form;
1.7.3 the Code of Conduct;
2. AFFILIATE ACCOUNTS
2.1 The Affiliate will be issued an Account on successful registration, as determined by Afflow in its sole discretion. Afflow can refuse to grant an Account for any reason.
2.2 The Affiliate shall keep its password confidential. Afflow shall not be liable for any losses or damage suffered by the Affiliate due to the disclosure or loss of any passwords.
3.1 In consideration of the payment of the Fees, Afflow shall provide access to the Service.
3.2 Afflow hereby grants the Affiliate a licence to use the Service for the purposes of promoting Advertisers and their products or services.
3.3 The above licence is:
3.3.1 revocable, non-exclusive, non-transferable and non-sublicensable;
3.3.2 granted to the Affiliate only and not to any subsidiary, holding company or related entity of the Affiliate.
3.4 Afflow hereby grants the Affiliate a sub-licence to use Advertiser Offer solely to the extent Afflow is permitted to grant sub-licences under any Third Party Network Terms.
3.5 The Affiliate may select:
3.5.1 Advertiser Offer to be displayed on the Advertiser Websites;
3.5.2 the classes of Advertiser Offer to be selected by the Service for display on an Afflow Page, on behalf of the Affiliate.
3.6 The Affiliate shall remove any Advertiser Offer or Links as soon as practicable following request from Afflow.
3.7 The Affiliate shall use Advertiser Offer strictly in accordance with Afflow’s instructions.
3.8 Afflow may disable any Links at its discretion.
3.9 Afflow may change the Service on written notice to the Affiliate.
3.10 The Affiliate shall provide any assistance reasonably requested by Afflow in order to carry on its business from time to time.
3.11 The Affiliate shall not use the Service to create any product or service which competes with the Service.
3.12 The Affiliate shall not permit any other person to use the Service nor offer any aspect of the Service to any other person as a service.
4. ADDITIONAL FEATURES
4.1 In consideration of the payment of additional Fees by the Affiliate, Afflow may provide additional features of the Service to the Affiliate.
4.2 The Fees payable in respect of access to additional features will be set out on the Service from time to time.
5. CODE OF CONDUCT
5.1 The Affiliate must comply with the Code of Conduct in all respects.
5.2 Afflow may, at its sole discretion, amend the Code of Conduct from time to time.
6.1 The Afflow systems shall be sole basis for recording Transactions.
6.2 Transactions will be determined in accordance with applicable Third Party Network Terms, including any rights of reversion, deduplication or approval offered to Advertisers under such terms.
7. FEES, SELF BILLING AND PAYMENT
7.1 Afflow will pay Commissions to the Affiliate in accordance with this Agreement and any Third Party Network Terms.
7.2 In consideration of the provision of access to the Service, the Affiliate shall pay the Fees to Afflow in accordance with the payment options set out on the Service from to time to time. Payments of Fees will be made in arrears, as set out on the Service.
7.3 Fees may be paid subject to reasonable minimum thresholds.
7.4 Commissions are subject to change by Advertisers.
7.5 Afflow will pay Commissions to the Affiliate in the currency in which they are received by Afflow from the respective Advertiser.
7.6 The Affiliate shall return any Commissions paid in error, or in breach of this Agreement, on request by Afflow.
7.7 In addition to any other rights or remedies of Afflow, if the Affiliate fails to make any payments in accordance with this Agreement Afflow may:
7.7.1 immediately withhold or suspend access to Service until the outstanding payments are made; and/or
7.7.2 charge, from the due date for payment until payment is made (whether before or after any judgment), annual interest on the unpaid amount at 8% above the Bank of England base rate, accruing on a daily basis and being compounded quarterly.
7.8 All amounts in this Agreement exclude VAT.
8. PROPRIETARY RIGHTS
8.1 Afflow and/or its licensors own all Intellectual Property Rights in the Service. Afflow does not grant the Affiliate any Intellectual Property Rights in respect of the Service or any related content or materials unless expressly provided in this Agreement.
8.2 Advertisers or their licensors own all Intellectual Property Rights in Advertiser Offer.
8.3 The Affiliate may not:
8.3.1 copy, decompile, reverse engineer, modify or otherwise deal in any way with the Service or any Advertiser Offer;
8.3.2 remove any proprietary notices attached to the Service or any Advertiser Offer;
8.3.3 gain unauthorised access to any restricted part of the Service;
8.3.4 collect data from the Service by systematic or automated means;
8.3.5 use its access to the Service for the sending of marketing communications; or
8.3.6 use any computer virus or malicious code of any nature in connection with the Service.
9.1 In this clause, “Confidential Information” means any information or Intellectual Property Rights that are clearly labelled or identified as confidential or ought to reasonably be treated as being confidential.Confidential Information excludes any information which:
9.1.1 is or becomes publicly known other than through a breach of this Agreement or other obligation of confidentiality;
9.1.2 was in the receiving party’s lawful possession before the disclosure;
9.1.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
9.1.4 is independently developed by the receiving party and that independent development can be shown by written evidence; or
9.1.5 is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
9.2 Each party shall hold the other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third party, save that either party may disclose Confidential Information to any other members of its group of companies subject to an equivalent duty of confidentiality. Neither party shall use the other’s Confidential Information for any purpose other than the implementation of this Agreement.
9.3 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees, agents or independent contractors in breach of the terms of this Agreement.
9.4 This clause 9 shall survive termination of this Agreement for a period of 5 years.
10.1 Each party warrants to the other that:
10.1.1 it has full power and authority to enter into this Agreement; and
10.1.2 it will perform its obligations under this Agreement using reasonable skill and care.
10.2 The Affiliate warrants to Afflow that:
10.2.1 it has sole control and responsibility for the Affiliate Website, including its development, maintenance, operation and any content it displays and any means of generating website traffic to the Affiliate Website
10.2.2 it is solely responsible for it selection of Traffic Sources;
10.2.3 it holds all of the rights and licences (including Intellectual Property Rights) necessary to carry on its business;
10.2.4 any information contained on the Affiliate Website is true, accurate and not misleading;
10.2.5 any Advertiser Offer will be faithfully reproduced on the Affiliate Website;
10.2.6 website traffic and Visitors will be appropriate for the Advertiser Offers, or classes of Advertiser Offers selected by the Publisher; and
10.2.7 it will comply with any Third Party Network Terms, the terms of any Traffic Sources, Data Protection Legislation and Advertising Standards.
11. LIMITATION OF LIABILITY
11.1 This clause 11 sets out Afflow’s entire financial liability (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Affiliate:
11.1.1 arising under or in connection with this Agreement;
11.1.2 in respect of any use made by the Affiliate of the Service or any part of it;
11.1.3 in respect of any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
11.2 Except as expressly and specifically provided in this Agreement the Affiliate assumes sole responsibility for its use of the Service and for the results of, or conclusions drawn from, such use.
11.3 Save as set out in this Agreement, the Service is provided “as is” to the fullest extent permitted by applicable law. Afflow disclaims all warranties and conditions express or implied, including, but not limited to, implied warranties of satisfactory quality and fitness for a particular purpose, in relation to the Service, its use and the results of such use.
11.4 Afflow specifically disclaims any warranty:
11.4.1 in respect of Advertiser Offer;
11.4.2 that any Afflow Page or Advertiser Offer selected by Afflow complies with Advertising Standards or is appropriate for its intended audience;
11.4.3 that the Service shall be uninterrupted or error-free;
11.4.4 that defects shall be corrected;
11.4.5 that there are no viruses or other harmful components;
11.4.6 that the security methods employed shall be sufficient; or
11.4.7 regarding correctness, accuracy, or reliability.
11.5 Save as set out in this Agreement, all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are excluded from this Agreement to the fullest extent permitted by law.
11.6 Nothing in this Agreement excludes the liability of Afflow:
11.6.1 for death or personal injury caused by Afflow’s negligence;
11.6.2 for fraud or fraudulent misrepresentation; or
11.6.3 any statutory liability not capable of limitation.
11.7 Subject to clause 11.6, Afflow shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation (whether innocent or negligent), restitution or otherwise for any losses arising from the use of Advertiser Offers; the acts or omissions of any Advertiser, Traffic Source, Third Party Network or Visitor; any losses arising in connection with the matters disclaimed in clause 11.4; loss of profits; loss of business; depletion of goodwill and/or similar losses; loss, or corruption of data or information; or pure economic loss; or for any special, indirect or consequential loss costs, damages, charges or expenses however arising under this Agreement.
11.8 Subject to clause 11.6, Afflow’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the total Fees actually received by Afflow from the Affiliate under this Agreement during the 12 months preceding the date on which the claim arose.
12. DATA PROTECTION
12.1 If the Affiliate provides any personal data to Afflow, the Affiliate shall ensure that it is entitled to do so, that Afflow may lawfully process that personal data as envisaged under this Agreement and may transmit that personal data outside of the EEA.
12.2 Each party shall:
12.2.1 take appropriate technical and organisational measures against unauthorised or unlawful processing of any personal data, or any accidental loss, destruction or damage of such data;
12.2.2 process any personal data in accordance with the terms of this Agreement and any lawful instructions reasonably given by the respective data controller from time to time.
13. TERM AND TERMINATION
13.1 This Agreement shall subsist until its termination in accordance with this clause 13 or clause 14.
13.2 This Agreement can be terminated by either party at any time and for any reason on 7 days’ written notice.
13.3 This Agreement can be terminated by either party immediately on written notice to the other party if the other party:
13.3.1 is in material breach of this Agreement or
13.3.2 ceases trading (or threatens to cease trading); is subject to an order for winding up; has an administrator or liquidator appointed (or such appointment is entitled or is requested in good faith); is the subject of a bankruptcy petition or order; becomes insolvent; is incapable of paying its debts as they fall due; makes any arrangement with its creditors for the payment of its debts.
13.4 Any termination is without prejudice to either party’s accrued rights or remedies.
13.5 On termination of this Agreement for any reason:
13.5.1 all licences granted by Afflow under this Agreement shall immediately terminate.
13.5.2 the Affiliate shall not be entitled to any refund of any payments made to Afflow and the Affiliate hereby waives any of its entitlement to recover such payments.
13.6 The accrued rights and remedies of the parties, and clauses, shall survive termination of this Agreement for any reason.
14. FORCE MAJEURE
14.1 No party shall be in breach of this Agreement nor liable for any failure to perform its obligations under this Agreement if that failure is a result of circumstances beyond its reasonable control.
15.1 Each of the parties may refer to the other party as its customer or supplier (as applicable) on its websites, in press releases, in its marketing materials and in negotiations with third parties, unless notified otherwise by the other party.
15.2 Afflow may, with the prior written consent of the Affiliate, publish a case study describing the benefit derived by the Affiliate by its use of the Service.
16.1 A waiver of any right under this Agreement is only effective if it is in writing.
17.1 If any provision (or part of a provision) of this Agreement is found to be invalid, unenforceable or illegal, the other provisions (or parts of any provisions) shall remain in force.
18. ENTIRE AGREEMENT
18.1 This Agreement constitutes the whole agreement between the parties and supersedes any previous agreement between them.
18.2 The terms of any amendment, addendum or side letter to this Agreement shall be subject to the terms of this Agreement, unless the amendment, addendum or side letter explicitly refers to the terms of this Agreement which are to be made subject to the terms of the amendment, addendum or side letter.
19.1 The Affiliate shall not assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement, without the prior written consent of Afflow.
20. THIRD PARTY RIGHTS
20.1 This Agreement does not confer any rights on any person or party and the parties to this Agreement and (where applicable) their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
21.1 Any notice required to be given under this Agreement shall be given by:
21.1.1 Afflow by posting on the Service or by email to the Affiliate’s address as set out on the Registration Form;
21.1.2 the Affiliate by email to Afflow at email@example.com.
21.2 A notice delivered by posting on the Services shall be deemed to have been received when posted. A correctly addressed notice sent by email shall be deemed to have been received at the time and date set out on the sender’s records (or if delivered before 9am or after 5pm on any Business Day, at 9am on the following Business Day).
22. GOVERNING LAW AND JURISDICTION
22.1 This Agreement shall be governed by, and construed in accordance with, the laws of England and Wales and the parties irrevocably submit to the exclusive jurisdiction of the English Courts.