Affiliates Panel

Affiliate Terms and Conditions

Introduction

Please read these Affiliate Terms and Conditions carefully before applying to become an Affiliate, as they set out our and your legal rights and obligations in relation to our Affiliate Programme. You will be asked to agree to these Affiliate Terms and Conditions before becoming an Affiliate.

You should print a copy of these Affiliate Terms and Conditions for future reference. We will not file a copy specifically in relation to you, and they may not be accessible in future.

If you have any questions or complaints about our Affiliate Programme please contact us by writing to FODMarket Ltd, 59 Albyfield, Bromley, BR1 2HY, United Kingdom or by emailing us at contact@fodmarket.com.

1. Definitions and interpretation

1.1 In the Agreement:

"Acceptance Email" means an email sent by the Affiliate Tracking System to the Affiliate in accordance with Clause 2.2 confirming that the Affiliate has been accepted into the Affiliate Programme;

"Affiliate" means the person (natural or legal) specified as the applicant for our Affiliate Programme on the Registration Form;

"Affiliate Programme" means the Merchant's affiliate programme detailed in the Agreement and on the Merchant Website;

"Affiliate Tracking System" means the system used by the Merchant to run and administer the Affiliate Programme, currently Affiliatly.com

"Affiliate Website" means the website(s) (if any) owned and operated by the Affiliate and specified by the Affiliate on the Registration Form;

"Agreement" means the agreement between the Merchant and the Affiliate incorporating these Affiliate Terms and Conditions, the Registration Form and the Acceptance Email, and any amendments to it from time to time;

"Banner" means an online graphic advertisement containing a link from the Affiliate Website to the Merchant Website enabling the merchant to track visitors from the Affiliate Website to the Merchant Website using the Affiliate Tracking System;

"Data Protection Laws" means all applicable laws relating to the processing of Personal Data including, while it is in force and applicable to the Shared Personal Data, the General Data Protection Regulation (Regulation (EU) 2016/679);

"Effective Date" means the date the Agreement comes into force as specified in Clause 2;

“Existing Customer” is a user who is registered on the customer database of the Merchant Website;

"Force Majeure Event" means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of or problems with the internet or a part of the internet, hacker attacks, denial of service attacks, virus or other malicious software infections or attacks, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);

"Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registered or unregistered, including any application or right of application for such rights (and the "intellectual property rights" referred to above include copyright and related rights, moral rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);

"Link" means a hyperlink (whether in text or in an image or otherwise) from the Affiliate Website to the Merchant Website enabling the Merchant to track visitors from the Affiliate Website to the Merchant Website using the Affiliate Tracking System;

"Merchant" means, FODMarket Limited, a company incorporated in England and Wales (registration number 10978799) having its registered office at 59 Albyfield, Bromley, BR1 2HY, United Kingdom;

"Merchant Website" means those websites specified by the Merchant in the Acceptance Email, plus any other websites notified by the Merchant to the Affiliate from time to time;

“Minimum Payment Sum” means the minimum amount of Affiliate earnings that must be outstanding at the end of a calendar month for a Payment to be made by the Merchant to the Affiliate. This amount is stipulated in the Agreement.

"Payments" means payments of such amounts as are specified by the Merchant from time to time on the website of the Affiliate Tracking System in respect of the relevant type of Payment Trigger;

"Payment Trigger" means a fulfilled purchase of the Merchant’s goods or services on the Merchant Website made by a user who is not an Existing Customer and first visited the Merchant Website by means of a Link and who made such purchase within the referral time limit (cookie duration) set in the agreement;

"Personal Data" has the meaning given to it in the Data Protection Laws applicable in the United Kingdom from time to time;

"Prohibited Materials" means content, works or other materials that constitute, or that the Merchant reasonably determines constitute:

a) material that breaches any applicable laws, regulations or legally binding codes;
b) material that infringes any third-party intellectual property rights or other rights;
c) indecent, obscene, pornographic or lewd material;
d) material that is offensive or abusive, or is likely to cause annoyance, inconvenience or anxiety to another internet user;
e) computer viruses, spyware, trojan horses or other malicious or harmful routines, programs or software; and/or
f) spam or unsolicited bulk email or unsolicited commercial email;

g) false, misleading or unsubstantiated claims or information.

"Registration Form" means the HTML form on the Affiliate Tracking System enabling users to apply to become Affiliates;

"Shared Personal Data" means any Personal Data supplied by the Affiliate to the Merchant under the Agreement;

"Term" means the term of the Agreement from the time of the Acceptance Email to the time of termination; and

"Verified Payment Trigger" means a Payment Trigger that has been verified by the Merchant using its affiliate tracking system (for the avoidance of doubt, this excludes both Payment Triggers that have not been so verified and events that are not Payment Triggers but are falsely verified as such).

1.2 In the Agreement, a reference to a statute or statutory provision includes a reference to:

a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and

b) any subordinate legislation made under that statute or statutory provision.

1.3 The Clause headings do not affect the interpretation of the Agreement.

1.4 The ejusdem generis rule is not intended to be used in the interpretation of the Agreement.

2. The Agreement

2.1 In order to apply to become an Affiliate, the applicant must complete and submit the Registration Form.

2.2 The Agreement will come into force if and when the Affiliate receives the Acceptance Email, following the submission of a completed Registration Form by the Affiliate.

2.3 The Agreement will continue in force indefinitely, unless and until terminated in accordance with Clause 11.

3. Affiliate Programme

3.1 The Affiliate will within 14 days following the Effective Date include Links or Banners on the Affiliate Website and will maintain at least one Link on the Affiliate Website during the Term.

3.2 The Affiliate will be granted access to an Affiliate control panel on the website of the Affiliate Tracking System during the Term, from which the Affiliate will be able to:

a) alter the Affiliate's account details;
b) access analytics information relating to the Affiliate's performance; and
c) download code to use as Links or Banners.

4. Affiliate obligations

4.1 The Affiliate will provide the Merchant with:

a) such co-operation as is required by the Merchant (acting reasonably) in connection with the Affiliate Programme; and
b) all information and documents required by the Merchant (acting reasonably) in connection with the Affiliate Programme.

4.2 The Affiliate must not:

a) include any Prohibited Materials on the Affiliate Website, or include any hyperlink to any Prohibited Materials on the Affiliate Website;
b) market the Affiliate Website using spam or unsolicited emails or other unsolicited communications, or using any form of spyware, parasiteware, adware or similar software, or using any other antisocial or deceptive methods; and
c) increase or seek to increase the number of Payment Trigger events using any fraudulent or deceptive method.
d) offer any cash back, incentives, discounts or misleading content to improve click throughs to the Merchants Website or number of Payment Triggers.
e) market discount codes on coupon or voucher websites or make use of software applications that offer discount codes to online shoppers i.e. the affiliate discount code should be used exclusively to offer discounts to the affiliate's own followers or network of contacts.

4.3 The Affiliate will not take any action in connection with the Affiliate Programme which might reasonably be expected to lead to the possibility of damage to the reputation and goodwill of the Merchant and/or the Merchant Website.

5. Intellectual Property Rights and Shared Personal Data

5.1 During the Term, the Merchant grants to the Affiliate a worldwide, non-exclusive, royalty-free licence to reproduce the Links electronically and to publish the Links on the Affiliate Website.

5.2 The Merchant does not warrant that the use of the Links by the Affiliate will not infringe any third party Intellectual Property Rights or give rise to any other liability on the Affiliate.

5.3 The Merchant does not warrant the Affiliate any editing directly or indirectly of any imagery or text supplied including banners and embeddable forms or any collateral relating to the Merchants brand.

5.4 The parties acknowledge that each is an independent controller with respect to the Shared Personal Data and, accordingly, each party shall determine the purposes and means of its own processing of the Shared Personal Data, subject to the express provisions of the Agreement.

6. Payments

6.1 In respect of each Verified Payment Trigger, the Merchant will make a Payment to the Affiliate, subject always to the other terms of the Agreement.

6.2 The Merchant will account to the Affiliate for all Payments due in respect of a calendar month before the end of the following calendar month, unless the amount due is less than the Minimum Payment Sum, in which case the Payments will be held over to the month following the next accounting date on which the amount due exceeds the Minimum Payment Sum.

6.3 The Merchant shall instruct the Affiliate of the amount to be invoiced in the following calendar month. The Affiliate will then raise the invoice (with VAT if registered). The Affiliate can also request the Merchant to raise self-billing invoices on behalf of the Affiliate. The Merchant is under no obligation to offer self–billing invoices.

6.4 Affiliate obligations:

a) The Affiliate confirms that they will not issue VAT invoices in respect of any services provided by the Affiliate under the Agreement if they are not VAT registered.
b) The Affiliate commits to ensure that they shall notify the Merchant of any changes to the status of their VAT registration and the VAT status of the services that they are supplying to the Merchant to the extent that it would affect the Agreement or the preparation of accurate self-billing invoices by the Merchant.
c) In addition, the Affiliate shall be responsible for ensuring that all other information within the Affiliate's account which is required to allow the Merchant to prepare an accurate and valid VAT invoice is always maintained .

6.5 Merchant obligations:

a) The Merchant shall confirm the invoice amount owed to the Affiliate within the calendar month following the month in which the commissions were generated.
b) If the Merchant has agreed to generate self-billing invoices on the Affiliate’s behalf, the Merchant will provide them to the Affiliate through the Affiliate account, within the calendar month following the month in which the commissions were generated, subject to clause 6.2.
c) The Merchant shall ensure that the self-billing invoices comply with the relevant VAT requirements for a valid VAT invoice and shall accurately incorporate the information provided by the Affiliate within the Affiliate account.

6.6 If the Merchant is required by law to deduct withholding tax or any other taxes or duties from any Payments, then the Merchant will deduct such amounts from the Payments before paying them to the Affiliate.

6.7 Payments to the Affiliate will be made in UK Pounds Sterling using one of the allowed payment methods indicated on the Affiliate Tracking System using the payment details provided by the Affiliate.

6.8 No Payments will be due in respect of any visits to or actions upon the Merchant Website made by or on behalf of:

a) the Affiliate;
b) any parent undertaking or subsidiary of the Affiliate;
c) any employee, agent or officer of the Affiliate or any parent undertaking or subsidiary of the Affiliate; or
d) any natural person related to any of the above.

6.9 No Payments will be due in any of the following circumstances unless agreed otherwise by the Merchant and Affiliate:

a) If the lead/referral is a hoax, fake or fraudulent.
b) If the contact details are incomplete or invalid.

c) If the lead/referral duplicates another referral previously received by the Merchant via any source.

d) if the source of the lead/referral was inaccurate and could lead to reputational damage to the Merchant or future claims against the Merchant (e.g. untrue claims are made about a product that leads to a purchase, but could have misled a customer).

6.10 The Merchant will be entitled to require repayment of Payments made as a result of the visits and actions referred to in Clause 6.8 and 6.9.

6.11 Both before and after termination, the Merchant will be entitled to set off any amount owed to the Affiliate against any amount the Affiliate owes to the Merchant whether under the Agreement or otherwise, and against any loss or damage suffered by the Merchant whether in relation to the Agreement or otherwise arising out of the Affiliate's acts or omissions.

7. Warranties

7.1 Each party warrants to the other party:

a) that it has the legal right and authority to enter into and perform its obligations under the Agreement; and
b) that it will perform its obligations under the Agreement with reasonable care and skill.

7.2 The Affiliate warrants to the Merchant that:

a) the Shared Personal Data will be collected and processed by the Affiliate in accordance with the Data Protection Laws;
b) the transfer of the Shared Personal Data (if any) by the Affiliate to the Merchant will not breach the Data Protection Laws;
c) the use of the Shared Personal Data by the Merchant in accordance with the Merchant's privacy policy (as published on the Affiliate Tracking System website at the time of the transfer of the relevant Shared Personal Data to the Merchant) will not breach the Data Protection Laws as a result of any failure of the Affiliate to meet the information and transparency requirements of the Data Protection Laws.

7.3 Without prejudice to the generality of the obligations in Clause 7.2, the Affiliate shall make available to users at the point of collection of the Shared Personal Data a privacy notice sufficient to meet the Affiliate's obligations under the information and transparency requirements of the Data Protection Laws.

7.4 All of the parties' liabilities and obligations in respect of the subject matter of the Agreement are expressly set out in the terms of the Agreement. To the maximum extent permitted by applicable law and subject to Clause 9.1, no other terms concerning the subject matter of the Agreement will be implied into the Agreement or any related contract.

8. Indemnity

8.1 The Affiliate will indemnify and keep indemnified the Merchant, and the Merchant's officers, employees, representatives, agents and subcontractors, against all damages, liabilities, losses, costs and expenses (including legal expenses) arising out of or as a result of any breach by the Affiliate of any term of the Agreement.

9. Limitations and exclusions of liability

9.1 Nothing in the Agreement will:

a) limit or exclude the liability of a party for death or personal injury resulting from negligence;
b) limit or exclude the liability of a party for fraud or fraudulent misrepresentation by that party;
c) limit any liability of a party in any way that is not permitted under applicable law; or
d) exclude any liability of a party that may not be excluded under applicable law.

9.2 The limitations and exclusions of liability set out in this Clause 9 and elsewhere in the Agreement:

a) are subject to Clause 9.1; and
b) govern all liabilities arising under the Agreement or in relation to the subject matter of the Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty.

9.3 The Merchant will not be liable to the Affiliate in respect of any loss of profits, income, revenue, use, production or anticipated savings.

9.4 The Merchant will not be liable to the Affiliate for any loss of business, contracts or commercial opportunities.

9.5 The Merchant will not be liable to the Affiliate for any loss of or damage to goodwill or reputation.

9.6 The Merchant will not be liable to the Affiliate in respect of any loss or corruption of any data, database or software.

9.7 The Merchant will not be liable to the Affiliate in respect of any special, indirect or consequential loss or damage.

9.8 The Merchant will not be liable to the Affiliate for any losses arising out of a Force Majeure Event.

10. Force Majeure Events

10.1 Where a Force Majeure Event gives rise to a failure or delay in either party performing its obligations under this Agreement, those obligations will be suspended for the duration of the Force Majeure Event.

10.2 A party who becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in performing its obligations under this Agreement, will promptly notify the other.

10.3 The affected party will take reasonable steps to mitigate the effects of the Force Majeure Event.

11. Termination

11.1 Either party may terminate the Agreement immediately at any time for any reason by giving written notice to the other party. For example, the Merchant may terminate the Agreement if the Affiliate does not generate enough earnings to justify the administration costs of maintaining the Agreement.

11.2 The Merchant may terminate the Agreement immediately by cancelling the Affiliate's account on the Affiliate Tracking System if the Affiliate:

a) commits any breach of any term of the Agreement;
b) becomes insolvent or bankrupt or enters into any insolvency or bankruptcy process or procedure; or
c) (where the Affiliate is an individual) the Affiliate dies or as a result of illness or incapacity becomes incapable of managing his or her own affairs.

12. Effects of termination

12.1 Upon termination all the provisions of the Agreement will cease to have effect, save that the following provisions of the Agreement will survive and continue to have effect (in accordance with their terms or otherwise indefinitely): Clauses 1, 8, 9, 12 and 13.1 to 13.10.

12.2 If the Agreement is terminated by the Merchant in the circumstances described in Clause 11.2, the Merchant will not have any obligation to make any further Payments to the Affiliate.

12.3 Subject to Clause 12.2:

a) the Merchant will pay to the Affiliate all outstanding Payments arising from Verified Payment Triggers activated on or before the date of effective termination of the Agreement in accordance with the terms of the Agreement provided that the amount due exceeds £10; and
b) termination of the Agreement will not affect either party’s accrued rights as at the date of termination.

13. General

13.1 Any notice given under the Agreement must be in writing (whether or not described as "written notice" in the Agreement) and must be delivered personally, sent by tracked post, or sent by email, for the attention of the relevant person, and to the relevant address or email address specified on the Registration Form (in the case of the Affiliate) or the Merchant Website (in the case of the Merchant) (or as notified by one party to the other in accordance with this Clause).

13.2 A notice will be deemed to have been received at the relevant time set out below:

a) where the notice is delivered personally, at the time of delivery;
b) where the notice sent by tracked post, at the time the post is recorded as being delivered; and
c) where the notice sent by email, at the time of the transmission (providing the sending party retains written evidence of the transmission).

13.3 No breach of any provision of the Agreement will be waived except with the express written consent of the party not in breach.

13.4 If a Clause of the Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other Clauses of the Agreement will continue in effect. If any unlawful and/or unenforceable Clause would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the Clause will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant Clause will be deemed to be deleted).

13.5 Nothing in the Agreement will constitute a partnership, agency relationship or contract of employment between the parties. The Affiliate will not make any statement on the Affiliate Website or otherwise which expressly or impliedly suggest that there is any such relationship between the parties.

13.6 The Agreement may be varied by the Merchant posting a new version of the Agreement on the Merchant Website. The Affiliate's continued participation in the Affiliate Programme after receipt of such a notice will constitute the Affiliate's acceptance of the varied Agreement.

13.7 The Affiliate hereby agrees that the Merchant may freely assign any of its rights or obligations under the Agreement to any successor to all or substantial part of the business of the Merchant from time to time. The Affiliate may not without the prior written consent of the Merchant assign, transfer, charge, license or otherwise dispose of or deal in the Agreement or any of its rights or obligations under the Agreement.

13.8 Save as provided for in Clause 8, the Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to the Agreement are not subject to the consent of any third party.

13.9 The Agreement constitutes the entire agreement and understanding of the parties in relation to the subject matter of the Agreement, and supersedes all previous agreements, arrangements and understandings between the parties relating to the subject matter of the Agreement. Subject to Clause 9.1, each party acknowledges that no representations or promises not expressly contained in the Agreement have been made by or on behalf of the other party.

13.10 The Agreement will be governed by and construed in accordance with the laws of England and Wales.