Terms and Conditions
These Terms are entered into between Performance Horizon Group Limited (Company Number 07188234), ("PHG") and you ("Publisher"). By ticking the box below, Publisher agrees and undertakes:
- that it has the capacity and authority to enter into these Terms and bind the company or organisation it represents to them; and
- that the company or organisation Publisher represents agrees to be bound by these Terms.
1. Publisher Sign-Up
1.1 Publishers application to become a Publisher on the relevant Advertiser Network may be approved in Advertisers sole discretion ("Approved").
1.2 If Approved, Publisher will have access to a Publisher Management Area.
1.3 If Publisher wishes to participate in a Programme, Publisher may apply to PHG by supplying the requested information and following such other instructions as are stated in the Publisher Management Area.
1.4 Publishers participation in a Programme is at the discretion of the Advertiser who operates the Programme.
1.5 If Advertiser approves Publishers participation, Publisher further agrees to be bound by any specific conditions which Advertiser may impose from time to time.
2. User and Order Tracking
2.1 PHG shall create Links and supply these to Publisher, which allow PHG and PHGs partners (including Advertisers) to track Users referred by Publisher, and in respect of which Programme.
2.2 Publisher must implement the Links in Publishers Site in accordance with PHGs instructions, maintain them at all times as fully operational, and ensure they are updated in accordance with PHGs instructions.
2.3 Publisher expressly acknowledges and agrees that Publishers delay in, or failure to, implement, operate and maintain Links correctly may cause Referrals not to be identified, and no Commission shall be payable to Publisher in respect of such unidentifiable Referrals.
3. IP Licences, Branding and Ownership
3.1 Each Party grants the other a non-exclusive, revocable, sub-licensable, royalty-free licence, to use, reproduce and display its respective Intellectual Property for the purposes of providing the Service and operating the Programmes in which Publisher participates.
3.2 Nothing in these Terms shall operate to transfer any interest or ownership in the Intellectual Property Rights of one Party to the other.
4. Commission
4.1 Commission is due in respect of Referrals that result in Approved Transactions.
4.2 An "Approved Transaction" is the sale of goods or supply of services, or sign-up or other User-initiated action as specified in a Programme Description which has been confirmed by Advertiser as approved.
5. Payment.
5.1 Payment for Commissions is dependent upon Advertisers providing such funds to PHG and therefore, Publisher agrees that PHG shall only be liable to Publisher for Commissions to the extent that PHG has received such funds from the Advertisers. Publisher hereby releases PHG from any claim for Commissions if PHG has not received such funds from the Advertisers.
5.2 Commissions shall only be due for payment to Publisher once Publisher has earned Commissions above the minimum payment threshold of £20/$30/€30 per month. A payment matrix of minimum threshold amounts is available on request for all other currencies. For the avoidance of doubt, Commissions earned below the threshold in any month shall be transferred to the following month.
5.3 Publisher expressly acknowledges and agrees that if Publisher does not clear their funds or provide sufficient information for PHG to electronically transfer funds to Publisher within 18 months of the date on which Publisher invoice can be generated in Publisher’s Management Area, PHG shall be entitled to retain such unclaimed Commission for PHGs own account, and Publisher shall forfeit any claim in respect of it.
5.4 PHG reserves the right to claim back un-cleared funds if transactions later turn out to be as a result of Unethical Activities.
5.5 PHG has the authority of HMRC to raise VAT invoices on Publishers behalf. Publisher is required to keep PHG updated with information relating to Publishers VAT status (including but not limited to VAT registration status, VAT number (if applicable), address and organisation name), and to ensure the payment details in Publishers Management Area are correct.
5.6 Publisher therefore agrees:
5.6.1 not to issue VAT invoices to PHG for Commissions earned, and
5.6.2 PHG shall raise self-billing VAT invoices on Publisher’s behalf for the duration of these Terms
6. Publisher Warranties.
6.1 Publisher represents, warrants and undertakes to PHG that:
(a) it has the full corporate right, power and authority to enter into these Terms and to perform the acts required under them;
(b) its acceptance of these Terms, and its performance of its obligations and duties under them, do not and will not breach any agreement to which Publisher is a party or by which it is otherwise bound;
(c) all information and data Publisher supplies to PHG, Advertiser, Users and any other party through or in connection with these Terms is correct, accurate and not misleading;
(d) Publishers Site and Publishers activities through and in connection with the PHG Services and the relevant Advertiser Network, and any data processing in relation to Users shall comply with any and all applicable laws, regulations and codes of conduct in force from time to time as amended, re-enacted, extended or consolidated;
(e) it shall adhere to the Publisher Guidelines at all times, as well as industry best practice in promoting the Programme. Promotion that is unacceptable includes but is not limited to, promotion by unsolicited email;
(f) its Site and its activities through and in connection with the PHG Services and relevant Advertiser Network shall not contain any Malware or other equivalent or similar code or material;
(g) it shall provide a clear and conspicuous link to its privacy policy from each page on its Site;
(h) it shall include a statement in its privacy policy that PHG and/or Advertiser (or another third party, where applicable) may use code or cookies on Publishers website to track the performance of Advertisers marketing efforts, and that no personally identifiable information is collected in such process;
(i) any Intellectual Property it uses does not and will not infringe any third-party right (including without limitation by being obscene, defamatory or infringing any copyright, trade mark or other proprietary right).
7. Publisher Indemnity
7.1 Publisher hereby undertakes to keep PHG, PHGs Associated Companies and PHGs Advertisers (together with their directors, employees and agents) fully and effectively indemnified against any and all costs, claims, expenses and liabilities (including reasonable legal fees) arising from a result of:
(a) any breach of the warranties set out in clause 6; and
(b) any contaminated file, virus, worm or trojan horse originating from Publishers Site (any matter within the scope of this indemnity being a "Claim").
7.2 PHG shall notify Publisher of any Claim and take reasonable account of Publishers directions with regard to that Claim.
7.3 Clause 11 of these Terms shall not apply to this clause 7.
8 PHG Warranties
8.1 PHG represents, warrants and undertakes to Publisher that:
(a) it has the full corporate right, power and authority to enter into these Terms and to perform the acts required of it under them;
(b) its execution of these Terms and the performance of its obligations and duties under them, do not and will not breach any agreement to which it is a party or by which it is otherwise bound; and
(c) Publishers use of PHGs Intellectual Property shall not infringe the intellectual property or other rights of any third party.
9 Limited Warranty
9.1 Publisher acknowledges and agrees that the Services are provided on an as is basis, and that PHG does not make any warranty in relation to Service availability or uptime, nor that the Service is suitable for Publishers particular requirements, or will result in any particular level of income or business to Publisher.
10 Term, Termination and Suspension
10.1 These Terms commence on the Effective Date and shall remain in force until terminated in accordance with its provisions.
10.2 Either Party may terminate these Terms at any time on written notice to the other Party in the event of:
(a) a material breach of these Terms by the other Party; or
(b) the other Party passing a resolution, or a court of competent jurisdiction making an order, that the other Party be wound up, a receiver, administrative receiver, administrator or manager is appointed over any part of the business or assets of the other Party; the other Party is unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986 or any similar event occurs in any other jurisdiction in respect of the other Party.
10.3 Further, PHG may terminate these Terms:
(a) immediately and without notice if Publisher engages in Unethical Activities or breaches clause 6 or 13 of these Terms; and
(b) on immediate notice without cause.
10.4 Publisher may terminate these Terms on immediate notice without cause.
10.5 PHG may suspend its provision of Services or Publishers participation in any Programme, or disable Links, where PHG believes it is necessary to avoid damage, loss or liability to PHG, PHGs Associated Companies or Advertisers, including, without limitation, if PHG believes Publisher is engaged in any Unethical Activities.
10.6 If PHG exercises its rights of suspension under clause 10.5, it shall notify Publisher as soon as practicable and resume provision of Services and/or the Programme as soon as it is satisfied the reason for suspension no longer applies.
10.7 Except for PHGs obligations in clause 13, PHG shall be relieved of all liability, duty and obligation to Publisher (including, without limitation, any payment obligation) during the period of such suspension. For avoidance of doubt, Publisher shall not be entitled to any Commission, compensation or any other form of payment in respect of any period of suspension, whether or not the suspension is lifted and Publisher is subsequently re-granted access to the PHG Network.
11 Limitation of Liability
11.1 Nothing in these Terms shall limit or exclude the liability of either Party for loss or damage due to or arising from death, personal injury or fraudulent misrepresentation.
11.2 Save in relation to clause 7 above, neither Party shall be liable to the other for loss of profits, or indirect, incidental or consequential damages, even if such Party has been advised of the possibility of such damages, incurred as a result of or in connection with these Terms, whether arising out of breach of contract, negligence or howsoever.
11.3 PHGs maximum liability to Publisher in relation to Publishers direct losses arising from PHGs breach of any provision of these Terms shall not exceed the Commission received or due to Publisher in the 3 months prior to the event which gave rise to liability.
12 Disputes and Notices
12.1 Both Parties shall use all reasonable endeavours to resolve bona fide disputes.12.2 If no such resolution occurs within 30 days of commencement, either Party may escalate such dispute to a superior within PHG, with both parties agreeing to attempt to resolve such dispute within a further 30 day period.
12.3 Any notice given under these Terms shall be in writing and shall be considered given or made: where sent by hand or courier, upon receipt; where sent by first class pre-paid post, on the second working day following the date of posting; or where given by fax (subject to retention by the sending Party of confirmation of successful transmission), four hours after the time of successful transmission; or where given by e-mail immediately on transmission; or where posted on the PHG website immediately the posting is made.
12.4 Notices shall be delivered or posted to the addresses of the Parties given above or to any other address notified in substitution.
13 Confidentiality
13.1 Both Parties shall take reasonable steps during the Term, and for two years thereafter, to prevent disclosure of Confidential Information of the other Party other than to its employees or agents who must have access to such Confidential Information to perform such Partys obligations hereunder and who have each agreed to comply with this provision.
13.2 Notwithstanding the foregoing, either Party may disclose Confidential Information without the consent of the other Party to the extent such disclosure is required by law. Both Parties may publicise the relationship, subject to the other Partys approval of any publicity materials, such approval not to be unreasonably withheld or delayed.
14 Force Majeure
14.1 Neither Party shall be liable for, or be considered in breach of these Terms on account of any delay or failure to perform as required by these Terms as a result of any causes or conditions which are beyond such Partys reasonable control, including but not limited to acts of God, acts of government, strikes or war, and which such Party is unable to overcome by the exercise of reasonable diligence.
15 General Provisions
15.1 Failure of either Party to insist upon or enforce strict performance by the other Party of any provision of these Terms or to exercise any right under these Terms shall not be construed as a waiver of such Partys right to assert or rely upon any such provision or right in that or any other instance.
15.2 These Terms comprise the entire agreement between the Parties, and supersedes all prior agreements, statements, and representations whether negligent or otherwise (other than fraudulent misrepresentations) by either Party in relation to its subject matter.
15.3 Other than expressly provided for in these Terms, a person (natural or legal) who is not a Party to these Terms has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of these Terms, but that does not affect any right or remedy of a third party which exists or is available apart from that Act.
15.4 Publisher shall not assign these Terms or any right, interest or obligation under them without PHGs prior written consent. PHG may assign these Terms or any of its rights, interests or obligations under them to any third party including without limitation any Associated Company without restriction or to any successor of PHGs by way of merger, consolidation or the acquisition of all or substantially all of PHGs business and assets relating to these Terms.
15.5 Solely to the extent there is any inconsistency between the Programme Description and these Terms, these Terms shall prevail.
15.6 If any provision of these Terms is or becomes invalid or illegal in any respect, that provision shall be deemed severed from these Terms but the validity, legality and enforceability of the remaining provisions shall not be affected.
15.7 The clause headings in these Terms are included for convenience only and shall not affect their construction.
15.8 Neither Party shall have the right to bind the other to any agreement with a third party nor to represent itself as an agent, partner or joint venture of the other, nor to incur any obligation or liability on behalf of the other.
15.9 The expiry or termination of these Terms (for whatever reason) shall not terminate any provision or obligation which is expressly or by implication provided to come into or continue in force after such termination and shall be without prejudice to the accrued rights and liabilities and other remedies of the Parties.
15.10 These Terms shall be governed by English law and the Parties irrevocably submit to the exclusive jurisdiction of the English Courts.
16 Updates
16.1 PHG may update these Terms from time to time by publishing a new version on the PHG website.
16.2 PHG will notify Publisher of updates of these Terms via email, the Publisher Management Area or other suitable method.
16.3 Publishers continued use of the Services and/or participation in a Programme after the date of any such update constitutes Publishers acceptance to be bound by the updated terms.
16.4 If Publisher does not agree with any proposed update to these terms, Publisher must notify PHG and, in accordance with PHGs direction:
(a) cease further participation in any then-active Programmes;
(b) agree to continue any then-active Programmes in accordance with PHGs reasonable directions.
SCHEDULE 1
Publisher Guidelines
1. Each Publisher undertakes to PHG that it shall not engage in any fraudulent, unethical or unlawful activity, or any activity which is not transparent to, nor in the best interests of, PHG, Advertisers and Users ("Unethical Activities"). Examples of Unethical Activities include, but are not limited to:
1.1. use of inappropriate software (whether third party or otherwise) in order to create financial gain for Publisher;
1.2. bidding on disallowed key terms within paid search, or any other third party advertising system based on keywords, without PHGs and/or Advertisers prior approval;
1.3. implementing links, where there is an incentive to click on them without a Users full knowledge of the consequences of their actions - for example, activating a cookie which may later mean a conversion of sale to the owner of the Publisher link (forced clicks);
1.4. mimicking the action of an Publisher link click which results in a cookie being stored on a Users machine which could later lead to the conversion of a sale to said Publisher.
2. The provisions of this paragraph apply to Publishers whose Site comprises an email list ("Email Publishers"). PHG shall indicate whether each Email Publisher must:
2.1. obtain PHGs approval before sending email promotions on behalf of Advertisers to Users;
2.2. promptly supply examples of email promotions which Email Publisher proposes to use;
2.3. promptly provide full disclosure as to the origin and source of its list or database of email addresses, including supplying satisfactory evidence that these have been properly purchased or licensed; details of the party from whom they have been purchased or licensed; and details which demonstrate that they have been created, supplied and operated in accordance with data protection and other applicable laws.
2.4. It is each Publishers responsibility to protect and maintain the confidentiality of their logins, Links and other data used to manage access to the Publisher Management Area and Programmes, to ensure that a third party may not change Publishers details without Publishers knowledge.
2.5. Each Publisher must specify the URLs it will use to track Transactions as part of the sign up process via the Publisher Management Area ("Authorised URLs"). PHG may ignore transactions entered into via URLs other than Authorised URLs and/or withhold Commission in respect of them. A Publisher may add additional or substitute URLs from time to time via the Publisher Management Area, but such URLs will only become operational once confirmed as such by PHG.
2.6. From time to time, PHG may request information from Publisher to evidence how and where Publisher is promoting its Site, and Publisher shall supply such information promptly to PHG.
2.7. If any Publisher or User has configured its system in order to disable any technology for confirming the means of referral, PHG will treat the User as not having been referred by any Publisher.
2.8. All information in the Publishers Management Area must be complete and accurate at all times. PHG reserves the right to request proof of Publishers identity at any time. If Publisher does not provide this within the time period specified by PHG then PHG may terminate these Terms on immediate notice.
Advertiser terms which form part of your agreement with PHG:
Apple Online Store Terms & Conditions
This Affiliate Publisher Agreement ("Agreement") establishes the terms of use for Apple Online Store Affiliate Publishers ("Affiliate(s)") to participate in the Apple Affiliate Program ("Program").
By becoming a member ("Affiliate") of the Apple Program on the PHG network you must read and adhere to the following program terms as referenced in the PHG Publisher Agreement clause 1.5.
PARTICIPATION IN THE PROGRAMME
After Affiliates read and agree to this Agreement, the registration form and Affiliate Web Site will be evaluated and Affiliate will be notified if Affiliate Web Site is accepted for participation in the Program.
If you are accepted to participate in the Programme and your Site is thereafter determined (in our sole discretion) to be unsuitable based on the criteria herein for the Programme, your participation in the Apple Program may be terminated with immediate effect.
Unsuitable sites may include, but are not limited to, those that:
- Do not comply with the Affiliate Banner Guidelines (http://store.apple.com/Catalog/regional/amr/affiliates/affiliate-banners-guide.pdf) or the Affiliate Photo Guidelines (http://store.apple.com/Catalog/regional/amr/affiliates/affiliate-photo-guide.pdf);
- Infringe trademark rights of Apple or any third party or otherwise violate the rights of any third party;
- Contain sexually explicit materials;
- Contain hate/violent/offensive content;
- Promote discrimination based on race, sex, religion, nationality, disability, sexual orientation or age;
- Promote illegal activities or otherwise violate any applicable laws, including those targeting "spyware", "adware" or SPAM;
- Violate any intellectual property rights, including, without limitation, scraping text or images from Apples Websites;
- Do not clearly state an online privacy policy to its visitors; or
- Otherwise are considered offensive or inappropriate at Apples sole discretion.
- This Agreement governs participation in the Apple Affiliate Program only
Your website or App must not do any of the following:
- Infringe trademark rights of Apple and/or its affiliates or any third party or otherwise violate the rights of any third party
- Focus on sexual orientation, sex in general or contain sexually explicit materials
- Contain hate/violent/offensive content
- Promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, age or any other grounds
- Promote illegal activities or otherwise violate any applicable laws, including those targeting "spyware," "adware," "jailbreaking" or SPAM
- Illegal activities (including those that incite illegal activities) or any materials that infringe or assist other to infringe on or violate any copyright, trademark or other intellectual property or third party rights
- Violate any intellectual property rights, including, without limitation, scraping text or images from Apple or its affiliates websites or the Apple Online Store or Apple Online Store app
- Use misleading or fraudulent means to prompt clicks
- Include an Apple trademark in the domain name
- Otherwise are considered offensive or inappropriate at Apples sole discretion
- Contain pornography or other nudity
- Promote alcohol, tobacco, or drugs
- Promote gambling
- Deal with death (funeral homes, mortuaries)
- Containing potentially slanderous or libelous content
- Contain graphic or implied depictions of violence (including certain types of game sites)
- Contain images or content that is any way unlawful, harmful, threatening, defamatory, obscene, harassing
- Use unauthorized or unapproved Apple creative assets
- Have no illegal download or peer-to-peer music sharing sites (and should not have any adware/spyware attached to their download)
- Target children under the age of 13
- Engage in or encourage "spamming."
- Frame auction listings sites such as for example eBay stores or eBay
Your website or App must at all times:
- Comply with the Affiliate Banner Guidelines available to view on the PHG interface.
- Clearly state an online privacy policy to its visitors, which includes information on how cookies are being used in line with the new EU cookie legislation
This Agreement governs participation in the Apple Affiliate Program only.
TERMS AND CONDITIONS
1. Program Terms.
1.1. From time to time, Apple may post on PHG offers to pay participants a specified Payout in return for certain advertising services leading to a Qualifying Link. If such offers have been created with the Program Term function in the PHG Interface they shall be deemed to be "Program Terms" for purposes of this Agreement.
1.2. If an Affiliate is accepted by Apple via PHG a Program Term is formed. Each Program Term shall be created and tracked by PHG and shall be governed by the terms and conditions of this Agreement which form part of Affiliate agreement with PHG.
1.3. At any time, Apple may (a) change, suspend or discontinue any aspect of a Affiliates Program Term or this Agreement (b) remove, alter, or modify any Creative without notice. If requested, within 48 hours Affiliate shall implement any request from Apple to remove, alter or modify any Creative.
2. Affiliate Publishers Responsibilities.
2.1. Affiliate shall link its Web Site to areas within Apple Online Store using Qualified Links. Affiliate may post multiple links to the Apples Online Store from Affiliates Web Site as long as Affiliate adheres to the Affiliate Banner Guidelines and the Affiliate Photo Guidelines. The position, prominence and nature of links on the Affiliates Web Site shall comply with any requirements specified in the Program Term, but otherwise will generally be in Affiliate Publishers discretion. Affiliate must ensure that the proper graphics are used with the appropriate Qualified Links, and that they link to the correct pages. Affiliate Publisher promptly (and in no event in less than 12 hours) shall remove banner ads, text copy and/or links to Apple Online Store site upon Apples request.
2.2. Affiliate may bid on search terms from website search engines or other directory or referral services (e.g. Yahoo Search Marketing, Google, etc. collectively "Search Engines"), provided that (i) Affiliates search terms, listing titles and descriptions, and the content of their websites do not violate the copyright or any other rights of Apple or third party, as determined by Apple at its sole discretion; and (ii) Affiliate complies with the following guidelines, as determined by Apple and its sole discretion: Affiliate ads shall not be displayed in response to a keyword query containing Apple or any other Apple trademark, not any confusingly similar term, and Affiliate will not be paid for any transactions resulting from any keyword or phrase containing search keyword (including but not limited to Apple, Apple Store, Mac, MacBook, iPod, iPad, iMac and iPhone; for a complete list of terms please see Apple website at http://www.apple.com/legal/trademark/appletmlist.html); and (iii) Affiliates listing titles and descriptions on the website search engines link to their website and not directly to Apple. Affiliate is required to employ negative keyword matching to prevent violation of this guideline. If Affiliate bids on permitted keywords (i.e. notebook, computer, etc.) not in combination with Apples trademarks, then all such advertising placements must comply with the Terms of Service for the Search Engine that will display the advertising.
2.3. Affiliates Web Site shall not in any way copy or resemble the look and feel of the Apple Online Store, nor shall Affiliate create the impression that its site is part of the Apple domains or reseller program. Affiliate Publisher shall not use Apple trademarks, or any variation or misspellings of those trademarks, in its URL, company name, business name, or site name without prior written consent from Apple. Affiliate shall not scrape or frame, or permit the scraping or framing of, any page of the Apple Online Store.
2.4. Affiliate shall not make any representations, warranties or other statements concerning Apple, the Apple Online Store, any of Apples products or services, or Apple Online Store policies, except as expressly authorized by this Agreement.
2.5. Affiliate shall promptly notify Apple and PHG of any malfunctioning of the Qualified Links or other problems with Affiliates participation in the Program Term.
2.6. Affiliate will not present or use any content at its site, including, without limitation, graphical images, logos, text copy, editorial copy, press releases, or marks, that: (i) could be interpreted to suggest that such content has been authored or otherwise provided by, or represents the views or opinions of, Apple; (ii) is misleading, defamatory, libelous, obscene, or otherwise objectionable; (iii) infringes, derogates, dilutes, or impairs the rights of Apple or any third party; (iv) refers to Apple but is used as part of a name of a product or service of a company other than Apple; or (v) is used in any other manner inconsistent with any term of this Agreement or with any provision of law.
2.7. Affiliate will not engage in deceptive software download or computer settings practices to promote Apple or Apples sites. The deceptive practices prohibited include, but are not limited to, installing software without user knowledge, changing a users home page without securing user permission, or offering downloadable software that does not uninstall.
2.8. Affiliate will continue to comply with Affiliate Banner Guidelines and Photo Guidelines.
2.9. Participation of Affiliate into the Apple Affiliate Program through the PHG Interface may be terminated by Apple on immediate notice without cause . .
2.10. Affiliate shall not market or promote Apple through social media (e.g. Facebook, Twitter) without written consent from Apple.
2.11. Affiliate will not list Apple as sponsor of any promotion without express written approval.
3. Payouts
3.1. Through participation into the Apple Affiliate Program, Affiliate will earn the Payout specified in the Program Term if an EIP visitor to Apples Online Store purchases a Qualifying Product that is the subject of the Program Term and only if that EIP has accessed the Apple Online Store and purchased the Qualifying Product via a Qualifying Link.
3.2. Apple shall process all EIP orders. Affiliate acknowledges that all agreements relating to sales to EIPs shall be between Apple and the EIP. Apple will set prices for ordered products at its discretion.
3.3. Apple shall determine at its sole discretion what constitutes a Qualifying Product or sale and shall have the right not to pay Payouts on non-Qualifying Products or sales (including where products are purchased for unauthorized uses). For an updated list of qualifying Products you can contact Apple or PHG.
3.4. Unless you are notified otherwise, no new product is Payable..
There is a Payout limits of five (5) units per eligible product, except iPhone, in which case reward will only be issued for up to two (2) units within a thirty-day (30-day) period.
4. Ownership and Licenses.
4.1. Each party owns and shall retain all right, title and interest in its names, logos, trademarks, service marks, trade dress, copyrights and proprietary technology, including, without limitation, those names, logos, trademarks, service marks, trade dress, copyrights and proprietary technology currently used or that it may use or develop in the future.
4.2. Apple grants Affiliate a limited, revocable, non-exclusive, worldwide license to use, reproduce and transmit the name, logos, trademarks, service marks, trade dress and proprietary technology provided by Apple and posted on PHG Interface solely for the purpose of creating links from Affiliates Web Site to the Apple Online Store. Except as expressly set forth in this Agreement or permitted by applicable law, Affiliate may not copy, distribute, modify, reverse engineer, or create derivative works from the same. Any good will resulting from Affiliates use of Apples name, logos, trademarks, service marks and trade dress will inure solely to the benefit of Apple and will not create any right, title or interest for Affiliate. Affiliate shall not sublicense, assign or transfer any such licenses for the use of the same, and any attempt at such sublicense, assignment or transfer is void.
4.3. Affiliate may use only the Creative that is provided by Apple and is posted in the PHG Marketplace. Creative is to be used solely for the purpose of advertising the Apple Online Store. Affiliate Publisher shall not use the Creative in connection with any activity that disparages Apple or its products or services, or that damages the reputation for quality inherent in the same. The use of Creative that is posted on other sites, found in other emails or other sources, manipulated in any way or derived from any means besides the PHG Marketplace is not permitted. If Affiliate does not fully comply with this provision, Apple may request PHG to reverse Payouts generated for non-compliant behavior, terminate the Program Term and/or request PHG to terminate this Agreement, permanently remove Affiliate from the Program, require that PHG immediately remove Affiliate from the Program, or utilize any remedy otherwise available to it at law or in equity.
4.4. Affiliates use of Apples name, logos, trademarks, service marks, and trade dress pursuant to Section 4.2 must be in a manner that is clearly less prominent than that of Affiliates name, logos, trademarks, service marks, trade dress, products and site name. Affiliate shall not create or attempt to create an impression that there is an association or affiliation between Apple and Affiliate Publisher beyond the arrangement that this Agreement governs.
4.5. Apple shall at all times have the right to review Affiliates activities related to this Agreement.
4.6. Affiliate shall immediately cease using Apples name, logos, trademarks, service marks, trade dress, proprietary technology and any Creative upon the termination or expiration of this Agreement.
4.7. Affiliate grants Apple a limited, non-exclusive, worldwide, royalty-free license to use, reproduce and transmit any graphic or banner ad submitted by Affiliate solely for co-branding purposes or as a return link from Apples site to Affiliate Publishers Web Site. Apple will remove such graphic or banner ad upon Affiliates request or upon termination of this Agreement.
5. Confidentiality.
5.1. Except as otherwise provided in this Agreement or with Apples prior written consent, all information including, without limitation, the terms of this Agreement, Apples business and financial information, its customer lists, and its pricing and sales information, shall remain strictly confidential and shall not be utilized, directly or indirectly, by Affiliate for its own business purposes or for any other purpose except and solely to the extent that any such information is generally known or available to the public through a source or sources other than Affiliate. Notwithstanding the foregoing, Affiliate may deliver a copy of any such information: (a) pursuant to a subpoena or order issued by any court or administrative agency; (b) to its accountants, attorneys, or other agents on a confidential basis; or (c) otherwise as required by applicable law, rule, regulation or legal process.
5.2. Apple shall own and retain all right, title and interest in all names, addresses and other identifying information of customers visiting Apples sites that Apple collects, including without limitation, customers who access Apples sites through Qualifying Links, and Affiliate shall have no right to use any such customer data.
6. Privacy.
6.1. Affiliate shall not send out any emails, directly or indirectly, that advertise or promote Apple or Apples products, services, web sites or offers without Apples prior express written consent and approval of final email content must be given by Apple in each and every instance. Affiliate Publisher emails must comply with the CAN-SPAM Act of 2003 and any comparable laws that apply to the transmission of Affiliate Publishers emails.
6.2. Affiliate Publisher shall not send any email or other form of electronic message, advertisement, or other promotional communication containing Apples name, product, web site address, metatag or any other type of identifier to any recipient unless the recipient has directly consented to receive such communication from Affiliate Publisher or Affiliate Publisher has a pre-existing business relationship with the recipient which legally allows Affiliate Publisher to send those communications. In addition, Affiliate Publisher shall provide a recipient of such communication with the ability to "opt out" of further communications from Affiliate Publisher either by calling a toll free number or by sending an "unsubscribe" email to Affiliate Publisher.
7. Termination.
7.1. Apple may terminate any Program Term immediately. Termination of a Program Term shall not terminate this Agreement.
7.2. Participation of Affiliate into the Apple Affiliate Program through the PHG Interface may be terminated by Apple on immediate notice without cause. Apple may request PHG to terminate this Agreement at any time, for any reason on immediate notice. In addition, Apple may ask PHG to immediately terminate this Agreement and request PHG to immediately suspend/terminate an Affiliate in the event any Affiliate materially breaches or violates any terms or conditions of this Agreement, or that an Affiliate Publisher obtained referrals fraudulently or through misrepresentation; in which case, Apple reserves the right to extend any new transactions for one additional Payout period pending an investigation of the suspected fraud, breach or misrepresentation. Affiliates may terminate this Agreement with or without cause on immediate notice. Termination of this Agreement shall also terminate any outstanding Program Term. However, all rights to payment, causes of action and any provisions that by their terms are intended to survive termination, shall survive termination of this Agreement.
7.3. This Agreement shall commence upon your click of the acceptance button and Apples approval of your application for the Program and shall terminate as set out herein.
8. Representations.
8.1. Each party represents that it has the authority to enter into this Agreement.
8.2. Affiliate Publisher represents that: (a) the contents of its Web Site do not (i) infringe on any third partys copyright, patent, trademark, trade secret or other proprietary rights or right of publicity or privacy; (ii) violate any applicable law, statute, ordinance or regulation; (iii) contain defamatory or libelous material; (iv) contain lewd, pornographic or obscene material; (v) violate any laws regarding unfair competition, antidiscrimination or false advertising; (vi) promote violence or contain hate speech; or (vii) contain viruses, trojan horses, worms, time bombs, or other similar harmful or deleterious programming routines; and (b) that Affiliate Publisher has and complies with a privacy policy that is prominently displayed on its website and in conformity with any laws that may apply to the privacy policy.
8.3. EXCEPT FOR THE ABOVE REPRESENTATIONS NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES TO THE OTHER PARTY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR OF NON-INFRINGEMENT.
9. Cross-Indemnification.
9.1. Each party shall indemnify, defend and hold harmless the other party and its affiliates, directors, officers, employees and agents from and against any and all liability, claims, losses, damages, injuries or expenses (including reasonable attorneys fees) brought by a third party, arising out of a breach, or alleged breach, of any of its representations or obligations herein.
9.2. Affiliate shall indemnify, defend and hold harmless Apple and its affiliates, directors, officers, employees and agents from and against any and all liability, claims, losses, damages, injuries or expenses (including reasonable attorneys fees) brought by a third party, arising out of a breach, or alleged breach, of any of its representations or obligations herein.
10. Limitation of Liability.
10.1. Except for indemnities as provided in sections 9.1, 4 Licenses and 5 Confidentiality, in no event shall either party be liable to the other party for any indirect, special, exemplary, consequential or incidental damages, even if informed of the possibility of such damages.
11. General.
11.1. Each party shall act as an independent contractor and shall have no authority to obligate or bind the other in any respect. Nothing in this Agreement is intended to or shall operate to create a partnership or joint venture of any kind between Apple and Affiliate, or to authorise either Apple or Affiliate to act as agent for the other, and neither Apple or Affiliate shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including but not limited to the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power). In particular, but without limitation to the foregoing, Affiliate (a) shall not act as the agent of Apple and shall have no continuing authority to solicit orders from, or to make representations to, potential customers of Apples products or services, (b) shall in no event act on behalf of Apple and/or oblige Apple by any means whatsoever, (c) and shall make the limitations in paragraphs (a) and (b) above clear to any third parties whatsoever.
11.2. The terms and conditions contained in this Agreement may be modified, at any time, by pushing out a new Program Term with a new Agreement attached and giving Affiliate Publisher notice of the modification through PHG or through a subsequent written agreement between the parties. IF ANY MODIFICATION IS UNACCEPTABLE TO AFFILIATE PUBLISHER, ITS ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. AFFILIATE PUBLISHERS CONTINUED PARTICIPATION FOLLOWING A NEW AGREEMENT VIA THE PHG INTERFACE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGES.
11.3. This Agreement has been made in and shall be construed and enforced in accordance with the laws of the state of California. Any disputes arising out of this Agreement shall be brought in the federal or state courts located in Santa Clara County, California. Notices to Apple should be directed by certified mail to Apple Inc. Legal Department, 1 Infinite Loop MS: 3-TM, Cupertino, CA 95014.
For Canada, this Agreement and the rights and obligations of the parties will be governed by and construed and enforced in accordance with the laws of the Province of Ontario, without regard to conflict of laws principles. Any disputes arising out of this Agreement shall be brought in the courts located in Toronto, Ontario, Canada. Notices to Apple should be via registered mail to Apple Canada Inc. Legal Department, 7495 Birchmount Road, Markham, Ontario, CANADA L3R 5G2.
For EMEIA, this Agreement and any dispute or claim arising out of or in connection with it shall be governed by and interpreted under Irish law and the courts of the Republic of Ireland shall have exclusive jurisdiction in respect of this Agreement.
11.4. Affiliate Publisher will express affirmative acceptance of this Agreements terms by so indicating when asked to do so on the PHG interface and, if requested, at any Apple web site.
11.5. The provisions of this Agreement are independent of and separable from each other, and no provision shall be affected or rendered invalid or unenforceable by virtue of the fact that for any reason any other or others of them may be invalid or unenforceable in whole or in part.
BY APPLYING FOR THE APPLE AFFILIATE PUBLISHER PROGRAM AND CLICKING ON THE "I ACCEPT" ICON BUTTON YOU, AFFILIATE, CONSENT TO BE BOUND BY THIS AGREEMENT AS IF YOU PERSONALLY SIGNED THIS DOCUMENT
Definitions:
In these Terms, the following words have the following meanings:
"Advertiser" means a third party whose goods or services Publisher promotes to Users as part of a Programme which may include agencies responsible for multiple Advertiser Programmes;
"Advertiser Network" means the proprietary network through which Publisher may advertise and market the Advertisers products and services to Users via Publishers Site;
"Affiliate," "Publisher" or "Affiliate Publisher" is any entity approved by Apple to participate in the Affiliate Program to earn Affiliate Payouts.
"Approved Transaction" means a Transaction that has been approved in accordance with the process set out in clause 4;
"Associated Company" means a member of PHGs group , and any entity that controls, is controlled by or is under common control with any of the foregoing entities;
"Apple Affiliate Program" or "Program" is a program that uses a set of technologies administered by PHG pursuant to which an Affiliate may earn Affiliate Payouts for Transactions of Qualifying Products completed by Eligible Individual Purchasers who are directed to the Apple Online Store from a Qualifying Link during the Referral Period.
"Apple Online Store" is the online store site located at the following URL: http://store.apple.com
"Payout" or "Affiliate Payouts" are the payments earned by the Affiliate for Transactions of any Qualifying Product(s) through use of a Qualifying Link.
"Creative" means banners ads, logos, images, pictures, data feeds or text copy used for Web site advertising that are accessible through the Apple Affiliate Program.
"Confidential Information" means these Terms and all communications and information, whether written, visual, or oral, and all other material supplied to or obtained, whether electronic or not, by either Party from the other during the Term and all information, reports, drawings, recommendations, data or advice given by either Party to the other in pursuance of its obligations under these Terms, and shall (without limitation of the foregoing) include any information from whatever source supplied to or obtained by either Party concerning the trade secrets, customers, business associations, technical or commercial affairs of the other Party or in the case of PHG any Associated Company, partners, joint ventures or any Advertiser or business associate of PHG;
"Effective Date" means the date of execution of these Terms (or the later of different dates), as evidenced by the records indicating the date the Publisher signed up to the network;
"Eligible Individual Purchaser" or "EIP" means any of the following:
Consumer: any person buying products in quantities for personal use or for individual gifts.
Student: any person enrolled in a course of study leading to a degree or certificate from the Institution.
"Intellectual Property Rights" means patents, rights in designs, trade marks, trading business or domain names, email addresses, copyrights (including any such rights in typographical arrangements, web sites or software), whether registered or not and any applications to register or rights to apply for registration of any of the foregoing rights in inventions, know how, trade secrets and other Confidential Information, rights in databases and all other intellectual property rights of a similar or corresponding character, which subsist now or in the future in any part of the world;
"Item Lists" means inventory of Qualifying and non-Qualifying Products.
"Link" means the link PHG supplies to Publisher for inclusion on Publishers Site, which when clicked on by a User, identifies:
that the User has been referred by Publisher; and
the Programme in which the User is participating;
"Malware" means software programmes designed to damage or do other unwanted actions on a computer system;
"Parties" shall mean the Publisher, PHG and Apple, and "Party" shall mean either one of them;
"Performance Horizon Group" or "PHG" is the third-party company appointed by Apple to administer the Apple Affiliate Program.
"PHG Interface" means the Performance Horizon interface that contains specific information (including, but not limited to, Program Term, promotions, reporting, Payouts, and Creative) for the Apple Affiliate Program.
"Program or Programme" means a commercial offer or set of offers of Advertisers products and services specified in a Program Description;
"Programme Description" means the key parameters of a Programme, which may include, without limitation, a description of the Advertisers company, Payout rates, cookie period, specific Publisher terms and conditions and other similar information;
"Program Term" means the Affiliate Payout structure.
"Publisher Guidelines" means the guidelines attached to these Terms in Schedule 1;
"Publisher Management Area" means the PHG reporting interface accessible from URL www.performancehorizon.com ;
"Referrals" means the Publishers referral or introduction of a User to an Advertiser as part of a Programme, which may result in an Approved Transaction.
"Qualified Link" or "Qualifying Link" is a Web link provided by PHG that contains unique parameters required to track the sale of any Qualifying Product. Qualified Links must be used in order for Affiliate to earn Payouts from the Transaction of Qualifying Products.
"Qualifying Product" means any product for which an Affiliate can earn a Payout by reason of a purchase by an EIP from the Apple Online Store. Qualifying Products will be designated by Apple and specified in the Affiliate Terms in the PHG Interface. Apple reserves the right to determine, withdraw or withhold any products or services from status as a Qualifying Product. Items not eligible as Qualifying Products include, but are not limited to, gift cards, shipping costs, taxes, returned products, purchasing for the purpose of reselling, institutional or government purchases, employee purchase programs, telephone or retail store purchases, and newly introduced or newly introduced refurbished Apple-branded products until or unless Apple provides Affiliate with written notice that such products are Qualifying Products.. Retroactive Affiliate Payouts will not be paid for sales of products that occur before such products are designated as Qualifying Products.
"Referral Period" is the period of time beginning from an EIPs initial contact with the Apple Online Store via a Qualifying Link from the Affiliate Publishers site and terminating (a) when EIP returns to the Apple Online Store via a Qualifying Link from a site other than the Affiliate Publishers site; (b) upon expiration of the action referral period specified in the Program Term; or (c) when the Affiliate Agreement is terminated.
"Services" means the provision of the PHG technology and operation of the Programmes;
"Site" means Publishers site, blog, forum, voucher code, email list or other mechanic designed or intended to refer Users to Advertisers;
"Term" means the duration of these Terms, beginning on the Effective Date and continuing until the date of termination by either Party, or expiration;
"Terms" means these terms and conditions, as updated from time to time;
"Transaction" is a sale to an EIP of a Qualifying Product via a Qualified Link that entitles an Affiliate to a Payout;
"Unethical Activities" has the meaning ascribed to it in Schedule 1, Paragraph 2;
"User" means an individual consumer who purchases, applies for, enquires about or otherwise takes action in respect of Advertisers products and services.
"Web Site" or "Site" is a Web page or Web site that is part of the Affiliate Publishers Web infrastructure, and is used by the Affiliate Publisher for posting Qualified Links.