R.O.EYE Terms and Conditions

ONLINE TERMS AND CONDITIONS FOR THE SUPPLY OF MEDIA SERVICES AND ADVERTISING BY AFFILIATES (Version 08/07)

R.O.Eye is a leading provider of affiliate marketing campaigns and related consultancy services. We are registered in England and Wales under company number 05202230 and with our registered office at 9th Floor, St. James' Building, 79 Oxford Street, Manchester, M1 6FQ. We are VAT registered with registration no. 844955879.

These terms and conditions will apply to all marketing programs for which an Affiliate (as defined below) is accepted by R.O.Eye. Please read these terms and conditions carefully before applying to become an Affiliate. You should understand that by applying to become an Affiliate you agree to be bound by these terms and conditions and if you refuse to accept them you will not be able to become an Affiliate.

1 Definitions

1.1 In this Agreement the following words and expressions shall have the following meanings:

Advertising means those Banners, Pop-ups, Skyscrapers, Links, or other website-based advertisements or methods employed to drive Website Users to another website, the content, style and form of which shall be prepared and provided by R.O.Eye (or guidelines for preparation of which shall issued by R.O.Eye to the Affiliate) for use and display on the Websites, which link to or re-direct Website Users to Client Websites, as may be more particularly detailed in the Program Specific Terms.

Affiliate means the company, partnership or individual with whom R.O.Eye is entering into this Agreement.

Agreement means the terms and conditions of this document together with the Program Specific Terms, as may be varied by R.O.Eye in accordance with clause 16.5.

Client means the client or merchant of R.O.Eye.

Client Product means such goods, services, Client Websites or other things as are promoted in the Advertising.

Client IPR means IPR of which a Client is the sole proprietor.

Client Website means a page or group of connected pages on the World Wide Web, the content of which is controlled and owned (or validly licensed) by a Client.

Commencement Date means:

(a) in respect of this Agreement, the date that R.O.Eye confirms in writing (which includes by email or facsimile) that an applicant has been accepted as an Affiliate, or such other date as the Parties may expressly agree in writing from which the Agreement will be in full force and effect; and

(b) in respect of any Program, the date that R.O.Eye confirms in writing (which includes by email or facsimile) that an Affiliate has been instructed to provided Services pursuant to that Program, or such other date as the Parties may expressly agree in writing from which Program Specific Terms will be in full force and effect.

Confidential Information means any information of a confidential nature which is disclosed by or on behalf of one Party to the other in relation to the Client’s and/or disclosing Party’s business and/or to this Agreement, its performance or implementation including but not limited to, personal data, financial information, supplier information, technical information, personal information, strategies and intentions, processes, ideas, concepts and know how, and all IPR in whatever form or media disclosed and whether or not marked as confidential, and including the terms of this Agreement.

Embedded Page means a website page within the Client Website containing information and details of Client Products.

Event of Force Majeure means any natural disaster, or restrictions or prohibitions of government, or war, riot or civil disturbance, acts of terrorism, fire, explosion, or any cause or circumstance beyond the reasonable control of a Party and which that Party could not have prevented using reasonable foresight, but for the avoidance of doubt does not include lack of funds, lock-outs, or any other form of employment dispute.

Fees means those fees payable to the Affiliate by R.O.Eye in consideration of the provision of the Services, as are more particularly set out from time to time in the Program Specific Terms.

Impression each occasion that a page of a website is accessed or viewed by a user, indicating to the website owner that such access or viewing has occurred.

IPR includes and means any registered or unregistered intellectual property rights in any part of the world, including any patents and any application therefor, trade marks, service marks, know how, brand names, logos, design rights, database rights, copyright, domain names, goodwill, Confidential Information and all similar intellectual property rights wherever and howsoever subsisting, whether or not registered or registrable or not including all granted applications and all applications for registration in respect of any of the same.

Licensed Materials means such materials, the IPR in which is owned by the Client, as are supplied by R.O.Eye from time to time for use in Advertising, and which the Affiliate is licensed to use pursuant to clause 6.

Link means a hypertext link to an Embedded Page, which links from the Website to the Embedded Page and incorporates the Tracking Software.

Parties means R.O.Eye and the Affiliate.

Program means a targeted advertising and/or marketing program as part of which an Affiliate performs Services in respect of a particular Client

Program Specific Terms means those additional terms and conditions which form part of the Agreement but relate only to a specific Program, in which (without limitation) the requirements for a Qualified Lead will be set out

Qualified Lead means a Website User who subsequently fulfils the criteria detailed in the Program Specific Terms, pursuant to which a Website User will become a Qualified Lead.

Services means the hosting of Advertising by the Affiliate on the Website, together with the re-direction of Website Users and capture of User Data, as may be more particularly detailed in clause 4 and the Program Specific Terms as and when the Affiliate is accepted onto a Program.

Term means the period from the Commencement Date to the Termination Date.

Termination Date means the date on which this Agreement is terminated pursuant to the provisions of clause 14.

Territory means worldwide.

Tracking Software means Tracktor, a website based tool supplied by R.O.Eye which automatically re-directs Website users to a Client Website and records data (including Qualified Leads), or such other software as R.O.Eye may supply from time to time for the same purposes.

User Data means information voluntarily supplied by Website Users, which may be passed by R.O.Eye to a Client.

Website means those connected pages of the World Wide Web, the content of which is controlled, hosted and owned (or validly licensed) by the Affiliate.

Website User means a person or persons accessing or viewing a Website.

1 Effect of this Agreement

1.1 Subject to clauses 2.2 and 2.3, R.O Eye hereby appoints the Affiliate to provide, and the Affiliate agrees to provide, Services in the Territory during the Term in accordance with this Agreement.

1.2 Making an application to become an Affiliate is no guarantee of acceptance by R.O.Eye, and is subject to confirmation from R.O.Eye by email.

1.3 Appointment as an Affiliate does not guarantee that an Affiliate will be requested to perform Services in respect of a particular Program, and R.O.Eye does not guarantee any minimum Fees will be payable to the Affiliate as a result.

2 Term of Appointment

2.1 This Agreement and each Program shall commence on the Commencement Date (as appropriate) and continue in full force and effect unless and until terminated pursuant to clause 14.

3 The Services

3.1 The Affiliate shall host Advertising on the Website and ensure that the Advertising will:

(a) be uploaded onto the Website promptly and in accordance with the reasonable instructions of R.O.Eye;

(b) be displayed as instructed by or agreed with R.O.Eye; and

3.2 The Affiliate shall for the duration of this Agreement:

(a) use best efforts to maximise the number of Impressions on the Website (and subsequent generation of Qualified Leads); and

(b) ensure that the Website contains no material which is defamatory, obscene, offensive, racist, promotes an illegal activity or would otherwise have (in the reasonable opinion of R.O.Eye) a material adverse effect on the reputation of the Client or R.O.Eye;

(c) comply with any reasonable request of R.O.Eye regarding alteration of or amendments to the content of the Website intended to ensure compliance with clause 4.2(b) above.

4 R.O.Eye Obligations

4.1 R.O.Eye shall, during the Term:

(a) supply the Affiliate with the Tracking Software;

(b) supply the Affiliate with material, text, data and artwork in a format appropriate for populating Advertising appropriate to the Affiliate's Programs, and instruct the Affiliate as to:

(i) whether such material, text, data and artwork should be used in any particular Advertising; or

(ii) the degree of control or discretion the Affiliate has over the content of the Advertising.

(c) obtain all necessary licences and consents (where applicable and to the extent that the licence granted in clause 6 is inadequate for the purposes of this Agreement) from third parties for use of the Tracking Software and Client IPR in the Advertising on the Website; and

(d) generate and issue (or procure the same from a third party) self-billing VAT invoices for Fees payable in respect of all Services supplied by the Affiliate in accordance with this Agreement;

(e) pay the Fees in the manner and within the times for such payments stipulated in the Program Specific Terms or otherwise as agreed between the Parties.

5 Grant of Licence

5.1 R.O.Eye has been granted permission to use:

(a) the Licensed Materials in Advertising on the Websites for the promotion of Client Products; and

(b) the Tracking Software.

5.2 The Affiliate hereby agrees only to use the Licensed Materials and the Tracking Software as may be expressly instructed by R.O.Eye from time to time.

5.3 The Affiliate hereby grants to R.O.Eye a non-exclusive, royalty free licence for the Term to use such screen-shots of the Website (or parts thereof) for use in promotional material shown to Clients and other third parties.

6 Fees and Commission

6.1 R.O.Eye shall pay the Affiliate the Fees, subject to R.O.Eye being satisfied (acting reasonably) that the Affiliate has provided the Services to the standards set out in, and otherwise in accordance with, this Agreement.

6.2 The Fees may be varied from time to time by R.O.Eye by serving written notice (which includes facsimile and/or email to the address notified by the Affiliate for such purpose) on the Affiliate.

7 Payment Terms

7.1 R.O.Eye shall provide the following to the Affiliate in respect of each calendar month:

(a) a report detailing:

(i) the number of Qualified Leads generated; and

(ii) a calculation of commission payable in respect of Qualified Leads.

7.2 The Affiliate shall accept self-billing invoices issued by R.O.Eye and not raise sales invoices of its own accord.

7.3 R.O.Eye shall pay the amounts set out in invoices it generates pursuant to clause 8.1(b) within 30 days of issuing to the Affiliate a copy of such an invoice.

7.4 All sums referred to in this Agreement or subsequently agreed between the Parties shall be expressed in British pounds sterling and exclusive of VAT, which will be included and itemised separately on all invoices generated pursuant to clause 8.1(b), where appropriate, at the rate prevailing and in effect from time to time.

7.5 The Affiliate hereby agrees and acknowledges that (save where R.O.Eye expressly agrees otherwise) R.O.Eye shall be entitled to deduct from the Fees any and all costs, charges or other sums howsoever incurred by R.O.Eye in payment of the Fees, including for the avoidance of doubt the transfer of sums to a bank account nominated by the Affiliate and the exchange or conversion of Fees payable in British pounds into the equivalent sums of local currency of the Affiliate.

7.6 In the event that the Affiliate changes its VAT registration number, ceases to be or becomes VAT registered, or sells all or part of its business it shall promptly notify R.O.Eye of the same.

8 Intellectual Property

8.1 The Parties hereby agree and acknowledge that:

(a) any and all IPR in existence on the Commencement Date shall remain vested in and owned by the Party (or the Client) in whom the IPR was vested and was owned by on the Commencement Date;

(b) the Affiliate shall not be entitled to any rights in data or information collected or compiled by the Client in connection with the Qualified Leads, and such data shall be the property of the Client.

8.2 The Affiliate hereby agrees that it shall fully and effectively indemnify R.O.Eye against any and all losses, damages, liabilities, fines and expenses resulting from any third-party claim against R.O.Eye howsoever relating to:

(a) the content of the Website;

(b) any infringement by the Affiliate of Client IPR or the IPR of any third party; and

other than where the Affiliate is acting strictly in accordance with the terms of any licence granted to it by R.O.Eye pursuant to this Agreement, or otherwise under the express written instruction of R.O.Eye.

8.3 If, during the Term, the Affiliate becomes aware of any threatened or unauthorised use of the Advertising, Client IPR or the Tracking Software, the Affiliate shall promptly notify R.O.Eye in writing, setting out the facts with full details.

9 Confidential Information

9.1 The Parties acknowledge a duty to not, during or after the Term, disclose without the other’s express prior written permission any Confidential Information obtained pursuant to the performance of its obligations under the Agreement or otherwise.

9.2 The Parties shall use all reasonable endeavours to procure the compliance with this clause 10 of any and all of its officers, employees, consultants or contractors.

9.3 For the avoidance of doubt, the provisions of this Clause 10 shall not prevent:

(a) the disclosure or use of Confidential Information in the proper performance of either Party’s duties pursuant to this Agreement;

(b) the disclosure of Confidential Information if required by law; and

(c) the disclosure of Confidential Information which has come into the public domain otherwise than through unauthorised disclosure by either Party.

9.4 Neither Party shall make any announcement relating to this Agreement or its subject matter without the prior written approval of the other Party and the relevant Client except as may be required by law or by any legal or regulatory authority.

10 Warranties

10.1 Each Party hereby warrants and represents to the other that it has the power and authority to enter into this Agreement and fully perform its obligations hereunder.

10.2 The Affiliate hereby warrants that:

(a) it is the sole owner of the Website (or has a valid licence to use it in the manner intended by this Agreement) and (with the exception of Client IPR) all IPR howsoever relating to the Website;

(b) it has the sole and exclusive ability to control the content of the Website from time to time;

(c) the Website does not contain or link to any advertising or other content which is (in the opinion of R.O.Eye) defamatory, obscene, offensive, racist, promotes an illegal activity or may otherwise have an adverse effect on the reputation of a Client; and

(d) it will comply with all laws, regulations and good industry practice pertaining to the collection and use of User Data, including, without limitation and where appropriate, keeping Website Users informed about the use of cookies and Tracking Software on the Website.

11 Indemnity

11.1 The Affiliate shall fully and effectively indemnify R.O.Eye against all costs, damages, losses, fees, liabilities, payments, claims or proceedings arising either directly or indirectly out of a breach by the Affiliate of the terms of this Agreement.

12 Limitation of Liability

12.1 Subject to clauses 13.2 and 13.5, the liability of R.O.Eye arising in respect of this Agreement shall be limited to £10,000.

12.2 The parties hereby expressly acknowledge that they consider the limitation of liability set out in clause 13.1 above to be reasonable, taking into account the relative negotiating strength of each Party, the potential liabilities which may be incurred and the risks of such liabilities being incurred.

12.3 Subject to clause 13.5, in no event shall R.O.Eye be liable in contract, tort (including negligence), breach of statutory duty or otherwise howsoever for:

(a) any loss of actual or anticipated income, loss of profits, loss of business, loss of goodwill, loss of contracts or loss of anticipated savings;

(b) any increased costs or expenses;

(d) any special, indirect or consequential loss or damage of any kind whatsoever, howsoever arising;

whether or not such loss or damage is foreseeable, foreseen or known.

12.4 R.O.Eye hereby agrees that the limits on liability under clauses 13.1 and 13.3 shall not in any event limit the obligation of R.O.Eye to pay the Fees to the Affiliate pursuant to clause 7, where the Services are performed in accordance with this Agreement.

12.5 Neither Party shall be liable for any failure to perform, or delay in performing, any of its obligations (other than payment and indemnity obligations) if and to the extent that the failure or delay is caused by an Event of Force Majeure and the time for performance of the obligation, where performance of which is affected by an Event of Force Majeure, shall be extended accordingly.

12.6 Nothing in this Agreement shall exclude or in any way limit the liability of R.O.Eye for fraud, or for death or personal injury caused by its negligence or any other liability to the extent such liability may not be excluded or limited as a matter of law.

13 Termination

13.1 Either Party may terminate this Agreement by service of written notice to the other of their intention to do so.

13.2 Either Party may terminate this Agreement forthwith by notice in writing to the other if the other Party:

(a) is in material breach of any of the terms of this Agreement and, in the case of a breach capable of remedy, fails to remedy such breach within 30 days of receipt of written notice giving full particulars of the breach and of the steps required to remedy it; or

(b) (being a company) passes a resolution for winding up (otherwise than for the purposes of a solvent amalgamation or reconstruction) or a court makes an order to that effect; or

(d) becomes or is declared insolvent or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors; or

(e) has a liquidator, receiver, administrator, administrative receiver, manager, trustee or similar officer appointed over any of its assets; or

(f) ceases, or threatens to cease, to carry on business.

13.3 Following the service by either Party of a notice of intention to terminate this Agreement, R.O.Eye shall:

(a) provide a report to the Affiliate containing the information required under clause 8.1(a) in respect of the full period between the previous report generated (in respect of a Calendar Month) and the Termination Date; and

(b) be entitled to withhold any Fees payable in respect of Qualified Leads where R.O.Eye reasonably suspects that the Affiliate has been acting dishonestly, improperly, fraudulently or in breach of clause 4.2(b) pending further investigation by R.O.Eye of such matters.

13.4 Upon the termination or expiry of this Agreement all rights and obligations of the parties under this Agreement shall automatically terminate except for such rights of action as shall have accrued prior thereto and clauses 9, 10, 12, 13, 14, 16.8 and 16.9 which shall survive any such termination.

14 Waiver

14.1 The failure of either Party to enforce or to exercise at any time or for any period of any term of or any right pursuant to this Agreement shall not be construed as a waiver of any such term or right and shall in no way affect that Party’s right to enforce or exercise it.

14.2 No waiver in connection with this Agreement shall, in any event, be effective unless it is in writing, refers expressly to this clause, is duly signed by or on behalf of the party granting it and is communicated to the other Party.

15 General

15.1 If any provision of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid or unenforceable then such invalidity or unenforceability shall not affect the other provisions of this Agreement which shall remain in full force and effect. The Parties agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the same effect as would have been achieved by the invalid or unenforceable provision.

15.2 A person who is not a Party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to rely on or enforce any term of this Agreement, but this does not affect any remedy or right of a third party which exists or is available apart from that Act.

15.3 No right or obligation arising under this Agreement may be sub-licensed, assigned, transferred or otherwise disposed of or subcontracted or otherwise vicariously performed, in whole or in part, without the express prior written agreement of the Parties.

15.4 This Agreement constitutes the entire agreement and understanding of the Parties and supersedes any previous agreement between the Parties relating to the subject matter of this Agreement.

15.5 The Parties agree that neither of them have been induced to enter into this Agreement in reliance upon any warranty, representation, statement, agreement or undertaking of any kind (whether negligently or innocently made) of any person other than as expressly set out in this Agreement. The only remedy available to the Parties for breach of the warranties shall be for breach of contract under the terms of this Agreement and the Parties unconditionally and irrevocably waive any other claims, rights or remedies that may otherwise be available. Nothing in this clause shall, however, operate to limit or exclude any liability for fraud.

15.6 R.O.Eye shall be entitled to vary this Agreement in its sole discretion by giving the Affiliate notice (for which purpose includes by email or facsimile) of any such variation. In the event that the Affiliate does not accept any such variation then it shall be entitled to terminate this Agreement and all Programs immediately pursuant to clause 14.1, but shall have no other remedy or redress as against R.O.Eye.

15.7 Each Party shall do and execute, or arrange for the doing and executing of, any other act and document reasonably requested of it by any other party to implement and give full effect to the terms of this Agreement.

15.8 This Agreement shall be governed by and construed in accordance with the law of England and Wales.

15.9 Each Party irrevocably agrees to submit to the exclusive jurisdiction of the Courts of England and Wales over any claim or matter arising under or in connection with this Agreement or the legal relationships by this Agreement.