adidas
Terms of Service
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 Publisher's application to become a Publisher on the relevant Advertiser Network may be approved in Advertiser's 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 Publisher's participation in a Programme is at the discretion of the Advertiser who operates the Programme.
1.5 If Advertiser approves Publisher's 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 PHG's partners (including Advertisers) to track Users referred by Publisher, and in respect of which Programme.
2.2 Publisher must implement the Links in Publisher's Site in accordance with PHG's instructions, maintain them at all times as fully operational, and ensure they are updated in accordance with PHG's instructions.
2.3 Publisher expressly acknowledges and agrees that Publisher's 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 PHG's 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 reserves the right to withhold payment to Publishers with any of the following in a country which is subject to international sanctions in compliance with any law, regulation or government direction affecting PHG or an Associated Company:
(i) billing address;
(ii) bank account;
(iii) IP address; or
(iv) trading address.
5.6 PHG has the authority of HMRC to raise VAT invoices on Publisher's behalf. Publisher is required to keep PHG updated with information relating to Publisher's 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 Publisher's Management Area are correct.
5.7 Publisher therefore agrees:
5.7.1 not to issue VAT invoices to PHG for Commissions earned, and
5.7.2 PHG shall raise self-billing VAT invoices on Publisher's behalf for the duration of these Terms.
5.8 Where the transfer of funds to Publisher incurs bank charges, PHG reserves the right to pass on such charges to Publisher.
5.9 Where Publisher requests payment in a currency other than the currency the campaign is tracked in, PHG shall charge Publisher for foreign exchange payments at a reasonable market rate.
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) Publisher's Site and Publisher's 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 Publisher's website to track the performance of Advertiser's 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, PHG's Associated Companies and PHG's 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) the content of Publisher's Site;
(b) any breach of these Terms;
(c) any contaminated file, virus, worm or trojan horse originating from Publisher's Site; and
(d) any other claim against PHG or Advertiser in connection with a User's use of Publisher's 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 Publisher's 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) Publisher's use of PHG's 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 Publisher's 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 Publisher's participation in any Programme, or disable Links, where PHG believes it is necessary to avoid damage, loss or liability to PHG, PHG's 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 PHG's 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 PHG's maximum liability to Publisher in relation to Publisher's direct losses arising from PHG's 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 Party's 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 Party's approval of any publicity materials, such approval not to be unreasonably withheld or delayed.
13.3 Notwithstanding Clause 13.1, where Publisher:
a) has made an application for approval on an Advertiser network; or
b) is participating in an Advertiser programme;
Publisher acknowledges that PHG may disclose any Confidential Information to the relevant Advertiser that PHG reasonably deems necessary for the abovementioned purposes.
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 Party's 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 Party's 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 PHG's 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 PHG's by way of merger, consolidation or the acquisition of all or substantially all of PHG's 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 Publisher's continued use of the Services and/or participation in a Programme after the date of any such update constitutes Publisher's 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 PHG's direction:
(a) cease further participation in any then-active Programmes;
(b) agree to continue any then-active Programmes in accordance with PHG's reasonable directions.
17. 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 Advertiser's products and services to Users via Publisher's Site;
"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 PHG's group, and any entity that controls, is controlled by or is under common control with any of the foregoing entities;
"Commission" means the fee due to Publisher in respect of Approved Transactions;
"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;
"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;
"Link" means the link PHG supplies to Publisher for inclusion on Publisher's Site, which when clicked on by a User, identifies:
1. that the User has been referred by Publisher; and
2. 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 and PHG, and "Party" shall mean either one of them;
"Programme" means a commercial offer or set of offers of Advertiser's products and services specified in a Programme Description;
"Programme Description" means the key parameters of a Programme, which may include, without limitation, a description of the Advertiser's company, commission rates, cookie period, specific Publisher terms and conditions and other similar information;
"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 (or any other URL as advised by PHG from time to time);
"Referrals" means the Publisher's referral or introduction of a User to an Advertiser as part of a Programme, which may result in an Approved Transaction.
"Services" means the provision of the PHG technology and operation of the Programmes;
"Site" means Publisher's 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" means the sale or supply of any Advertiser's goods or services to Users, or introductions, referrals or other User interactions in respect of Advertiser's goods or services as defined in the applicable Programme;
"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 Advertiser's products and services.
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 PHG's and/or Advertiser's prior approval;
1.3. implementing links, where there is an incentive to click on them without a User's 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 User's 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 PHG's 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.
3. It is each Publisher's 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 Publisher's details without Publisher's knowledge.
4. 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.
5. 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.
6. 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.
7. All information in the Publisher's Management Area must be complete and accurate at all times. PHG reserves the right to request proof of Publisher's 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.
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 Publisher's application to become a Publisher on the relevant Advertiser Network may be approved in Advertiser's 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 Publisher's participation in a Programme is at the discretion of the Advertiser who operates the Programme.
1.5 If Advertiser approves Publisher's 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 PHG's partners (including Advertisers) to track Users referred by Publisher, and in respect of which Programme.
2.2 Publisher must implement the Links in Publisher's Site in accordance with PHG's instructions, maintain them at all times as fully operational, and ensure they are updated in accordance with PHG's instructions.
2.3 Publisher expressly acknowledges and agrees that Publisher's 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 PHG's 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 reserves the right to withhold payment to Publishers with any of the following in a country which is subject to international sanctions in compliance with any law, regulation or government direction affecting PHG or an Associated Company:
(i) billing address;
(ii) bank account;
(iii) IP address; or
(iv) trading address.
5.6 PHG has the authority of HMRC to raise VAT invoices on Publisher's behalf. Publisher is required to keep PHG updated with information relating to Publisher's 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 Publisher's Management Area are correct.
5.7 Publisher therefore agrees:
5.7.1 not to issue VAT invoices to PHG for Commissions earned, and
5.7.2 PHG shall raise self-billing VAT invoices on Publisher's behalf for the duration of these Terms.
5.8 Where the transfer of funds to Publisher incurs bank charges, PHG reserves the right to pass on such charges to Publisher.
5.9 Where Publisher requests payment in a currency other than the currency the campaign is tracked in, PHG shall charge Publisher for foreign exchange payments at a reasonable market rate.
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) Publisher's Site and Publisher's 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 Publisher's website to track the performance of Advertiser's 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, PHG's Associated Companies and PHG's 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) the content of Publisher's Site;
(b) any breach of these Terms;
(c) any contaminated file, virus, worm or trojan horse originating from Publisher's Site; and
(d) any other claim against PHG or Advertiser in connection with a User's use of Publisher's 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 Publisher's 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) Publisher's use of PHG's 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 Publisher's 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 Publisher's participation in any Programme, or disable Links, where PHG believes it is necessary to avoid damage, loss or liability to PHG, PHG's 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 PHG's 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 PHG's maximum liability to Publisher in relation to Publisher's direct losses arising from PHG's 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 Party's 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 Party's approval of any publicity materials, such approval not to be unreasonably withheld or delayed.
13.3 Notwithstanding Clause 13.1, where Publisher:
a) has made an application for approval on an Advertiser network; or
b) is participating in an Advertiser programme;
Publisher acknowledges that PHG may disclose any Confidential Information to the relevant Advertiser that PHG reasonably deems necessary for the abovementioned purposes.
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 Party's 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 Party's 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 PHG's 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 PHG's by way of merger, consolidation or the acquisition of all or substantially all of PHG's 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 Publisher's continued use of the Services and/or participation in a Programme after the date of any such update constitutes Publisher's 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 PHG's direction:
(a) cease further participation in any then-active Programmes;
(b) agree to continue any then-active Programmes in accordance with PHG's reasonable directions.
17. 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 Advertiser's products and services to Users via Publisher's Site;
"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 PHG's group, and any entity that controls, is controlled by or is under common control with any of the foregoing entities;
"Commission" means the fee due to Publisher in respect of Approved Transactions;
"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;
"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;
"Link" means the link PHG supplies to Publisher for inclusion on Publisher's Site, which when clicked on by a User, identifies:
1. that the User has been referred by Publisher; and
2. 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 and PHG, and "Party" shall mean either one of them;
"Programme" means a commercial offer or set of offers of Advertiser's products and services specified in a Programme Description;
"Programme Description" means the key parameters of a Programme, which may include, without limitation, a description of the Advertiser's company, commission rates, cookie period, specific Publisher terms and conditions and other similar information;
"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 (or any other URL as advised by PHG from time to time);
"Referrals" means the Publisher's referral or introduction of a User to an Advertiser as part of a Programme, which may result in an Approved Transaction.
"Services" means the provision of the PHG technology and operation of the Programmes;
"Site" means Publisher's 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" means the sale or supply of any Advertiser's goods or services to Users, or introductions, referrals or other User interactions in respect of Advertiser's goods or services as defined in the applicable Programme;
"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 Advertiser's products and services.
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 PHG's and/or Advertiser's prior approval;
1.3. implementing links, where there is an incentive to click on them without a User's 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 User's 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 PHG's 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.
3. It is each Publisher's 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 Publisher's details without Publisher's knowledge.
4. 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.
5. 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.
6. 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.
7. All information in the Publisher's Management Area must be complete and accurate at all times. PHG reserves the right to request proof of Publisher's 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.