AFFILIATE TERMS AND CONDITIONS

 

DATE:  02/11/2020

 

Footstock operates the Footstock Affiliate Network (“FAN”) which enables Affiliates to use the Footstock Marketing Content to direct prospective customers to the Footstock Website and mobile applications. In order to join the FAN, you must submit an Application Form and be accepted by Footstock as an Affiliate.

By submitting an Application Form, which can be found on the Footstock Affiliate Website (“FAS”) you acknowledge that you have read this Agreement and agree to be bound by its terms and conditions, as well as any affiliate terms subsequently published on the FAS and any terms contained within any network operator or other third party platform provider that Footstock decides to use ("Platform Provider") to assist in the management of the relationship between you and Footstock (including idevaffiliate or such other replacement provider) ("Platform Provider Terms"). The parties to this Agreement are you (referred to in this Agreement as "you" or "Affiliate") and Footstock.

Footstock's business is regulated by the Gambling Commission, and it is critical that Affiliates adhere to all relevant gambling and advertising laws and codes of practice.

1.                 Affiliate acknowledges that it has read Footstock's Privacy Policy and that it has obtained independent legal advice in respect of its participation in Footstock's affiliate network. If Affiliate has any doubts about its participation in Footstock's affiliate network, Affiliate should not participate in it. DEFINITIONS AND INTERPRETATION

1.1.            Definitions:

Affiliate Programme Manager: the member of Affiliate's personnel set out in the Application Form who has authority to contractually bind Affiliate on all matters relating to this Agreement.

Affiliate Tracker: a unique tracking URL, advertising code, javascript or other affiliate attribution or tracking technology provided by Footstock or it’s platform provider exclusively for Affiliate, through which Footstock shall track the volume of Footstock Customers directed to Footstock Website or mobile applications by Affiliate.

Affiliate Website: Affiliate's site located at the domain name provided in the Application Form and any future version or replacement of that site.

Applicable Regulation(s): means any laws and regulations which are applicable to Footstock or Affiliate from time to time, including all codes of practice and best practice guidance (regardless of whether such best practice guidance is mandatory). For the avoidance of doubt, Applicable Regulations include the following: the UK Advertising Codes issued by the Committees of Advertising Practice (CAP) and administered by the Advertising Standards Authority (ASA); any relevant industry code on advertising, including the gambling industry code for socially responsible advertising which is administered by the Industry Group for Responsible Gambling (IGRG); the Data Protection Legislation; all relevant consumer laws including the Consumer Rights Act 2015 and the Consumer Protection from Unfair Trading Regulations 2008;  the LCCP and all guidance issued by the Gambling Commission; and any revisions or replacements to any of the foregoing.

Application Form: means the form located on Footsock’s website or Platform Partner

 which enables you to apply to join our affiliate network and enables Footstock to assess your application.

Banners and Text Links: are the graphical artwork or text that direct traffic to the Footstock Website through Affiliate Tracker, to permit a Footstock Customer to hyperlink to the Footstock Website.

Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

Confidential Information: means all technical, commercial and financial information, trade secrets, know-how and all information relating to the plans, intentions, market opportunities, transactions, affairs and/or business of a party and its group and/or its or their customers and/or suppliers, and the terms of this Agreement.

CPA: means a fixed payment to be made to Affiliate in respect of each Footstock Customer who makes a Qualifying Deposit.

Data Protection Legislation: means all applicable privacy and data protection laws including the General Data Protection Regulation ((EU) 2016/679), the Data Protection Act 2018, the Privacy and Electronic Communications Directive (2002/58/EC), the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2003/2426), guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party and any applicable national laws, regulations and secondary legislation in the Territory relating to the processing of Personal Data and the privacy of electronic communications, as amended, replaced or updated from time to time;

First Time Depositor (FTD): A completely new Footstock player who registers, passes ID verification and then makes a deposit within Footstock for the first time. The amount of the first deposit is then used to calculate the CPA terms laid out in this agreement.

Footstock: means WR digital GmbH (t/a Footstock) with company number HRB 90905 and registered address am Schulberg 31 50858 Cologne, Germany District Court, Cologne.

Footstock Customer: a user who has clicked through to Footstock Website from Affiliate Website.

Footstock Intellectual Property Rights or Footstock IPR: means all intellectual property rights owned by and/or licensed to Footstock including, without limitation: patents, utility models, rights to inventions, copyright and neighbouring and related rights, trade marks and service marks, business names and domain names, logos, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

Footstock Marketing Content: means Affiliate Tracker; Banners and Text Links; and any other content including (but not limited to) mailers, video banners, widgets; in each case as made available by Footstock to Affiliate.

Footstock Programme Manager: the member of Footstock's personnel who looks after Footstock's Affiliate programme as notified by Footstock to Affiliate from time to time.

Footstock Website: Footstock's website at any time and from time to time, currently called Footstock and at https://www.footstock.com/ and including all databases, software, domain names, infrastructure, products and services that Footstock markets for use by individual users to use Footstock's services. Footstock Website includes all future versions and replacements of, and successors to, the site and any associated mobile applications.

Fraud: means any act which is reasonably deemed or suspected by Footstock to be in breach of any relevant law, in breach of contract, undertaken in bad faith or with the objective of circumventing applicable legal or contractual restrictions, or otherwise intended to defraud Footstock. Fraud includes any attempt to commit Fraud, irrespective of whether such attempt is successful or causes Footstock any damage. The following actions shall (without limitation) constitute Fraud: bonus abuse or abuse of other promotional offers; any form of misleading advertising activity; abuse of the Affiliate payment mechanics; breaches of Applicable Regulations; cheating or collusion; use of stolen payment card information or stolen funds; participation in rake-back schemes; the interception or re-direction of website traffic; interference with the Footstock Website;

Gambling Commission: means the Gambling Commission of Great Britain.

Lapsed/Active Affiliate: The status of an affiliate and their account as determined by the conditions laid out in term 7.0 of this agreement.

LCCP: means the licence conditions and codes of practice, as issued and updated from time to time by the Gambling Commission.

Payment Terms: the written payment terms agreed between Footstock and Affiliate from time to time (including as may be included within any Platform Provider Terms).

Personal Data: shall have the meaning given to it under the Data Protection Legislation.

Profit Share: This is the net profit generated by Footstock on each Qualifying Player delivered to Footstock by the activities of the Affiliate as defined in term 6.2.4.

Qualifying Deposit/First Time Qualifying Deposit: a deposit made on the Footstock Website to a Footstock Customer account by a Footstock Customer who has clicked through directly to the Footstock Website from an Affiliate Website or marketing materials approved by Footstock. A deposit shall only be a Qualifying Deposit if it meets the following criteria:

(A)  The deposit is made by a player coming through to Footstock via a link or advert creative which is correctly used by the Affiliate and provided by Footstock.

(B)   The deposit is from an age verified, new player, is used for bona fide purposes and Footstock does not reasonably believe that the deposit has been or is likely to be affected by any form of Fraud or charge-back.

(C)  If a prospective Footstock Customer is referred by more than one Affiliate, then any Qualifying Deposit made by that Footstock Customer shall be credited towards the Affiliate who last referred the Footstock Customer. 

In some cases a qualifying first-time deposit has to be made by the player in order to trigger commissions for Affiliates. A qualifying First Time Deposit will be credited according to the requirements laid out in this agreement, and any additional requirements Footstock may take to ensure First Time Deposits are from, genuine, non-fraudulent and compliant players. This may include the requirement for the Player to engage with Footstock by purchasing player packs, playing mini-games or otherwise.

Qualifying Player: A completely new player sent to Footstock through the Affiliate Trackers of the Affiliate. The player must then meet the identity verification, deposit and other requirements laid out in this agreement to be counted as a Qualifying Player.

Territory: means the United Kingdom.

VAT: Value added tax or any equivalent tax chargeable in the United Kingdom.

1.2.            Interpretation:

1.2.1.         A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time. A reference to a statute or statutory provision includes any subordinate legislation made from time to time under that statute or statutory provision.

1.2.2.         Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

1.2.3.         A reference to writing or written includes email.

2.                 Appointment and Grant of LIcence to foostock marketing content

2.1.            Once Footstock receives your Application Form and you have indicated agreement to these terms by clicking the relevant button, Footstock shall evaluate your Application Form and notify you whether your Application Form is approved. Footstock shall determine at its sole discretion whether or not to approve your Application Form.

2.2.            Upon becoming an approved Affiliate, Footstock shall grant you a non-exclusive, revocable, non-transferable, non-sublicensable licence to use the Footstock Marketing Content in the Territory to direct potential Footstock Customers to the Footstock Website in order for such potential Footstock Customers to make a Deposit on the Footstock Website.

2.3.            Affiliate shall not:

2.3.1.         use any content other than the Footstock Marketing Content to promote or direct potential Footstock Customers to the Footstock Website; or

2.3.2.         alter the appearance, layout or design of the Footstock Marketing Content,

in each case without the prior written consent of Footstock (such consent to be given at the sole discretion of Footstock).

2.4.            Affiliate acknowledges that participation in the Footstock affiliate network may require that Affiliate also agrees to the Platform Provider Terms of any Platform Provider used by Footstock from time to time. In the event of any conflict or inconsistency, the terms of this Agreement shall prevail as between the parties to this Agreement over the Platform Provider Terms (unless expressly stated otherwise).

3.                 Affiliate's rights and obligations

3.1.            Affiliate represents and warrants to Footstock that:

3.1.1.         the execution, delivery and performance by Affiliate of this Agreement will not conflict with or violate any provision of law, rule, regulation or agreement to which Affiliate is subject;

3.1.2.         it has the right to enter into this Agreement;

3.1.3.         Affiliate is not itself, and does not employ or use the services of individuals who are, under the age of 18 (or, if higher, the age at which gambling activities are legal under the law of the jurisdiction where such individual is located).

3.2.            Affiliate agrees that it will:

3.2.1.         not directly or indirectly commit Fraud, nor allow, encourage or facilitate any third party (including any prospective Footstock Customer) to commit Fraud;

3.2.2.         not place digital advertisements on file-sharing or torrent sites, or any other websites providing unauthorised access to copyrighted content;

3.2.3.         comply with the letter and spirit of the Applicable Regulations at all times when undertaking activities for the purposes of this Agreement, in the same manner as it would be required to do if the Affiliate was itself a licensed gambling operator;

3.2.4.         not do anything (whether by positive action or omission) which adversely affects or may adversely affect Footstock's own compliance with the Applicable Regulations;

3.2.5.         operate its business lawfully and in accordance with all codes of practice which apply to it;

3.2.6.         comply with any lawful directions and instructions issued by Footstock from time to time;

3.2.7.         promptly provide Footstock with such information as Footstock may require from time to time (including such information as Footstock may require in order to comply with its obligations to the Gambling Commission);

3.2.8.         not, in using the Footstock Marketing Content and in respect of Affiliate Website, infringe (i) the Footstock IPR; or (ii) the intellectual property rights of any third party.

3.2.9.         market, promote and refer potential Footstock Customers in the Territory to the Footstock Website by displaying and sharing the Footstock Marketing Content and such other content that has been approved in advance of publication by Footstock in writing;

3.2.10.      not intentionally market or promote the Footstock Website to, or refer to the Footstock Website, any persons:

(a)                located outside the Territory; nor

(b)               directly to any person that Affiliate has knowledge of or reasonably suspects has a problem with excessive gambling (including such persons that have had financial limits on gambling or marketing imposed by Footstock, or have in any way self-excluded from gambling) ("Excluded Customers"). For clarity, notwithstanding the above: (i) Footstock may support Affiliate in this regard by providing Affiliate with details of such Excluded Customers who should not receive direct marketing from the Affiliate; and (ii) Affiliate shall not distribute any direct marketing to any e-mail or other similar lists without Footstock initially reviewing such list in order to check for any Excluded Customers and assist Affiliate comply with its obligations under this clause. Footstock shall not use any list provided by Affiliate pursuant to this clause for any purpose other than to assist Affiliates compliance with this clause.

3.2.11.      be solely responsible for developing, operating and maintaining Affiliate Website and for all materials that appear on it (including the Banners and Text Links and Affiliate Tracker);

3.2.12.      [1]comply with all Applicable Regulations in the jurisdiction that it is operating from and any other jurisdiction to which it directs or makes available the Footstock Marketing Content;

3.2.13.      comply with any Footstock brand guidelines which may be provided to Affiliate from time to time;

3.2.14.      remove any content immediately upon Footstock notifying Affiliate that any content is in breach of this Agreement;

3.2.15.      ensure that all marketing, advertising and promotions targeted at potential Footstock Customers in the United Kingdom or otherwise subject to regulation by the Gambling Commission shall include the following with sufficient prominence:

(a)                "18 + only";

(b)               "www.gambleaware.co.uk" or "BeGambleAware";

(c)                "Terms and Conditions apply", together with any key qualifying criteria which may apply to a particular promotion; and

(d)               appropriate indicators, such as #ad or such other equivalent clear indicator, that ensures that all communications are identified as marketing communications in accordance with the requirements of Applicable Regulations.

3.3.            Affiliate agrees that it will be solely liable for the content and manner of the marketing and promotional activities undertaken by it or on its behalf.

3.4.            Affiliate acknowledges and agrees that it may not be part of the FAN  if it is or at any time becomes an employee, agent or subcontractor of Footstock or in any way connected to a person or company which meets this definition (each a “Connected Party”). Should Affiliate become a Connected Party at any time during the Term, it shall immediately notify Footstock and this Agreement will automatically terminate from the time that Affiliate became a Connected Party.

3.5.            Affiliate will not engage in, allow, encourage, promote, directly or indirectly:

3.5.1.         any act that interferes with the accessibility or the operation of the Footstock Website; and

3.5.2.         any act which is reasonably deemed as fraudulent, inappropriate or misrepresentative by Footstock.

3.6.            Affiliate shall at all times while this Agreement is in force have an Affiliate Programme Manager, and shall notify Footstock promptly in the event of any change to the identity of its Affiliate Programme Manager. Affiliate shall use reasonable endeavours to ensure as far as reasonably possible the continuity of its Affiliate Programme Manager.

3.7.            Affiliate acknowledges and agrees that it has no authority to legally bind Footstock in relation to Footstock Customers, other users or anyone else and that it has not been appointed and is not the agent of Footstock for any purpose. Affiliate agrees that it shall not make to anyone any representation or commitment about Footstock, Footstock Website or any of the services available on the Footstock Website.

3.8.            In the event of any delays in Affiliate's provision of assistance as agreed by the parties, Footwork may adjust any dates for performance or delivery provided to Affiliate as reasonably necessary.

4.                 AML CHECKS, AGE AND ID verification and supporting documentation

4.1.            Footstock carries out checks into the background of its Affiliates to prevent money laundering and the funding of terrorist activities. Affiliate shall promptly provide Footstock with such documentation as Footstock may require from time to time for the purposes of these anti-money laundering and counter-terrorism funding checks ("AML-CFT Checks"). At a minimum, these checks will involve confirming the identity and address of the Affiliate. In the case of an Affiliate which is a corporate entity, Footstock will undertake checks to confirm the identity and address of the beneficial owners of the affiliate.

4.2.            If an Affiliate is an individual, will also undertake age verifications checks ("AV Checks") to confirm that the Affiliate is over 18.

4.3.            Affiliate acknowledges that Footstock may undertake AML-CFT Checks and AV Checks using public records.

4.4.            Footstock may suspend payments to Affiliate under this agreement whilst any AML-CFT Check or AV Check is ongoing. Affiliate acknowledges that Footstock cannot provide information to Affiliate regarding the reasons for payments being suspended while AML-CFT Checks are ongoing.

5.                 Footstock's rights and obligations

5.1.            Footstock shall track the level of Deposit made by each new prospective Footstock Customer who registers with Footstock, in order to determine the amount of CPA payment due to Affiliate.

5.2.            Footstock reserves the right to refuse any and all new Footstock Customers or to close the accounts of existing Footstock Customers. Such actions will be at Footstock's sole discretion in order to comply with any Applicable Regulation or, without limitation, in the event of actual or suspected Fraud committed by a Footstock Customer, unlawful activity, breach of Footstock's terms and conditions or otherwise.

6.                 Payment and CPA

6.1.            Footstock will pay the CPA to Affiliate in accordance with the Payment Terms. Affiliate agrees that Footstock may by written notice change the Payment Terms with immediate effect.

6.2.            Unless different Payment Terms have been agreed in writing between Footstock and the Affiliate, then the following default terms shall apply:

6.2.1.         the Affiliate will be paid one of the following as a one-off fee based on a CPA basis as follows:

First Time Qualifying Deposits

CPA payment

£20.00 to £39.99

£30

£40.00 to £499.99

£50

£500.00 and above

£100

 

6.2.2.         Footstock shall pay Affiliate the CPA within 31 days after the last day of the relevant calendar month (or, if that is not a business day, then on the next business day) for Qualifying Deposits made in the previous calendar month.

6.2.3.         Footstock reserves the right to recalculate any prior CPA payment in the event of an error (including an overpayment due to subsequently discovered Fraud or charge-back) and Footstock is entitled to require immediate repayment of any payment affected by an error.

6.2.4.         In some cases, and at the sole discretion of Footstock the Affiliate may be invited to or otherwise qualify for a Profit Share on the net profit generated by any Qualifying Players the Affiliate has referred to Footstock, these payments will be subject the Affiliate being considered as “Active” and deductions made by Footstock for any of the following; (i) money paid for taxes or other duties; (ii) fraud; (iii) deposits returned or void for any reason; (iv) Charge-backs - transactions which are reversed by the card-holder's bank (v); (vi) bad debts; (vii) any deposit, tournament, or other promotional bonuses; (viii) Any other reasonable deductions made to calculate the net profit generated on any user.

6.2.5.         The Profit Share shall then be paid to qualifying affiliates on the following terms:

Number of FTDs sent in a month

Profit Share %

Up to 25

15% - 20%

26+

25%

 

6.2.6.         For the avoidance of doubt, the Profit Share % of 15% - 20% will be paid out on the first 25 qualifying players referred by the affiliate during a calendar monthShould an Affiliate deliver more than 25 FTDs during a calendar month then the affiliate will receive a Profit Share of 25% on the profits generated by all of the FTDs during that month. This may be in addition to any additional CPA commissions due to the affiliate under the terms of this agreement.

6.2.7.         Alternative Profit Share models and percentages which pre-date this agreement or are otherwise agreed between Footstock and the Affiliate may supersede section 6.2.5 of this Agreement if agreed by both parties, in writing (e-mail will suffice).

6.2.8.         Profit Share payments due will be paid to the Affiliate under the same terms as CPA payments.

6.3.            Affiliate shall ensure that the payment and/or bank account details in its account (including any account with a Platform Provider) and as provided in the Application Form are accurate, complete and up to date. Affiliate shall promptly update it if any further changes are required.

6.4.            Affiliate is fully responsible for all taxes, fees and other costs incidental to and arising from any payments made to it under this Agreement. Affiliate hereby indemnifies and agrees to immediately reimburse Footstock for any costs, expenses or losses that may be caused to, or suffered by Footstock, as a result of any claim or demand made by any governmental or other authority, with regard to tax withholding obligations or similar obligations to which Footstock may be subject in connection with making payments to Affiliate. Footstock will be entitled to withhold or set-off any such amounts from any payments made to Affiliate.

6.5.            In the event that, for whatever reason (including but not limited to incorrect details being provided by Affiliate), Footstock is charged by either its own, or Affiliate’s bank for paying, or attempting to pay the CPA (“Bank Charges”), Affiliate hereby indemnifies Footstock against and all such Bank Charges.

6.6.            Footstock shall be entitled to set-off Bank Charges against future CPA owing to Affiliate and/or may require immediate repayment of such Bank Charges from Affiliate, in the event such Bank Charges arise due to any change to Affiliate's payment or contact information.

6.7.            Affiliate shall not be entitled to receive commission on any Deposits made by or on behalf of Affiliate, or its family members, friends or associates.

6.8.            The Affiliate will not be entitled to receive payment of the CPA to the extent that it has been increased by Fraud by either the Affiliate or any relevant Footstock Customer.

6.9.            Footstock may withhold payment of the CPA to the extent that Footstock reasonably suspects or is investigating whether the amount of the CPA has been affected by Fraud by the Affiliate or by any relevant Footstock Customer.

7.                 AFFILIATE ACTIVITY REQUIREMENTS

7.1.            Any Affiliate account qualifying for Profit Share will need to be deemed to be Active in order to qualify for Profit Share generation and payments.

7.2.            If a qualifying Affiliate delivers <5 FTDs/month for 3 consecutive months, the account will be deemed Inactive and all generation of Profit Share will be suspended from the next calendar month until 5 new FTDs are generated in any calendar month.

7.2.1.         Upon generation of at least 5 new FTDs in any calendar month the Affiliate account will be deemed to have become Active again and will begin to generate any previously assigned or agreed Profit Share % on qualifying players from the month in which the Affiliate is considered to have become Active.

7.3.            If a qualifying Affiliate account delivers <5 FTDs/month for 6 consecutive months, the account will be deemed “Lapsed” and will be terminated with no further Profit Share generated by that account or Affiliate.

7.4.            An affiliate account may be suspended or terminated, with no further Profit Share generated with immediate effect in the event that the affiliate delivers a large number of Player Accounts which were: (i) Closed by Footstock due to Policy violations (ii) Closed by Footstock due to KYC irregularities (iii) Closed or suspended by Footstock for any other legal, regulatory or business reasons.

7.5.            Footstock reserves the right to withhold and retain Profit Shares in the following eventualities: (i) Where the Profit Share was generated during a time when the Affiliate account was suspended or terminated for any reason (ii) Where we have reason to believe the Profit Share was generated by misrepresentation, fraud or other breach of the terms of this agreement (iii) Where the Profit Share generated is not claimed by the affiliate within two (2) years of being generated.

8.                 Intellectual property

8.1.            Affiliate acknowledges that Footstock is the owner of any and all Footstock Intellectual Property. Affiliate shall not contest the validity, enforceability or ownership of Footstock Intellectual Property, in any action or proceeding of whatever nature, and shall not take any action that may prejudice Footstock, its goodwill and/or reputation.

8.2.            Affiliate shall not:

8.2.1.         use, adopt or register in any territory any trade or service marks so resembling any of the Footstock trade or service marks as to be likely to cause confusion or deception;

8.2.2.         adopt, use or register any word or symbol or combination of words and symbols which are confusingly similar to Footstock's trade or service marks, including translations of Footstock's trade or service marks into other languages, nor shall Affiliate adopt, use or register as a domain name on the internet any of Footstock's trade or service marks or any part thereof or any name or word likely to be confused with or similar to any of Footstock's trade or service marks or any part thereof, including translations of the trademarks into other languages, without Footstock's prior written consent;

8.2.3.         register or apply to register in its own name any of Footstock's trade or service marks or other Footstock IPR; or

8.2.4.         place, purchase or register ‘pre-click’ bids, keywords, search terms or any other identifiers for use in any search engine, portal, sponsored advertising service or other search or referral service which are identical, are similar or otherwise resemble any Footstock IPR. This includes, and is not limited to, any words containing, or derived from, such Footstock IPR and any misspells, typographical errors, or phonetically-similar versions of the same. 

8.2.5.         For the avoidance of doubt, all Affiliates are prohibited from bidding on, purchasing or otherwise procuring advertising keywords which include the word “Footstock” or it’s trade marked brand terms. Affiliates are also prohibited from advertising Footstock and/or it’s Marketing materials through other forms of paid for advertising such as programmatic and social media unless explicit consent is provided at the sole direction of Footstock, in writing, and prior to the commencement of any such activity by the Affiliate.

9.                 Term, RIGHT OF SUSPENSION, termination

9.1.            This Agreement will come into force when Affiliate’s application to join Footstock's affiliate programme is approved by Footstock, and shall continue in force unless and until either Affiliate or Footstock notifies the other in writing that it wishes to terminate this Agreement, in which case this Agreement will be terminated immediately (“Term”).

9.2.            Affiliate acknowledges and agrees that if Affiliate commits a breach of any of the terms in this agreement, Footstock reserves the right to suspend Affiliate’s account and/or withhold payment of all monies due to Affiliate until the breach has been remedied to the reasonable satisfaction of Footstock. If the breach is not capable of being remedied, or has not been remedied to the reasonable satisfaction of Footstock within 7 days from the date that Footstock notified Affiliate that it was required to remedy the breach, then Footstock shall be entitled without further notice to treat all existing and future payments or amounts due to Affiliate under or in connection with this Agreement as forfeited. Footstock's rights under this clause are non-exhaustive, and are without prejudice to any other rights and remedies which may be available to Footstock in respect of the breach, including Footstock's right to immediately terminate the Agreement under Clause 8.3.1.

9.3.            Without prejudice to any other rights or remedies Footstock may have, Footstock may terminate this Agreement immediately by notice in writing to Affiliate in the event that:

9.3.1.         Affiliate breaches any of its obligations in Clauses 2.33, or 7.2;

9.3.2.         Footstock has doubts in respect of Affiliate's true identity;

9.3.3.         Affiliate is unable to provide the appropriate documentation set out in Clause 4;

9.3.4.         Affiliate enters into any form of insolvency process (whether compulsorily or voluntarily) other than for the purposes of a solvent reorganisation, amalgamation or reconstruction; or

9.3.5.         Affiliate suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.

10.              Consequences of termination

10.1.         On termination of this agreement for any reason:

10.1.1.      all licences and benefits granted under this Agreement shall immediately terminate;

10.1.2.      each party shall return and make no further use of any equipment, property, Confidential Information, materials and other items (and all copies of them) belonging to the other party;

10.1.3.      Affiliate shall immediately: (a) remove any and all Footstock Marketing Content and other related materials from Affiliate Website; (b) disable any links from its site to Footstock Website; and (c) stop any activity promoting and/or creating an association with Footstock; and

10.1.4.      the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.

10.2.         On termination of this agreement by Footstock pursuant to Clause 8.3 (and notwithstanding Footstock's other rights under this Agreement (including specifically under Clauses 8.2 and 9.1.4) then Footstock shall be entitled without further notice to treat all existing and future payments or amounts due to Affiliate under or in connection with this Agreement as forfeited.

 

11.              Indemnities

11.1.         Affiliate shall indemnify Footstock, its shareholders, directors, employees, agents and other representatives against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by Footstock arising out of or in connection with:

11.1.1.      any breach by Affiliate of any Applicable Regulation;

11.1.2.      any action or omission by or of Affiliate that causes Footstock to be in breach of any Applicable Regulation;

11.1.3.      any claim or demand by a third party relating to actions taken by the Affiliate, including the development, operation, maintenance or content of Affiliate’s website, its domain name, metatag or any adword or other search engine optimisation tool connected to Affiliate's website or used by it; and

11.1.4.      any and all payments that Footstock is required to make to any of Affiliate’s employees in the event that any judgment is imposed on Footstock by a Court or Tribunal stating that an employer-employee relationship existed between Footstock and such Affiliate employees.

12.              Limitation of liability

12.1.         Nothing in this Agreement limits or excludes, or shall be deemed to limit or exclude, a party’s liability:

12.1.1.      for fraudulent misrepresentation;

12.1.2.      for death or personal injury caused by its negligence; or

12.1.3.      that may not otherwise be limited or excluded by law.

12.2.         Without prejudice to Clause 11.1, Footstock shall not be liable to Affiliate whether based on a claim in contract, tort (including negligence), breach of statutory duty or otherwise arising out of, or in relation to, this Agreement, for any:

12.2.1.      loss of profit;

12.2.2.      loss of sales or business;

12.2.3.      loss of agreements or contracts;

12.2.4.      loss of anticipated savings; and/or

12.2.5.      indirect or consequential losses.

12.3.         For the avoidance of doubt, in no event shall Footstock be responsible for any dispute or claim between Affiliate and any user of Affiliate’s website.

12.4.         Subject to Clause 11.1 and 11.2,, Footstock's total aggregate liability whether in contract, tort (including negligence), for breach of statutory duty or otherwise, arising out of or in connection with  this Agreement will not exceed the lower of: (i) the aggregate of all payments actually paid to the Affiliate under this Agreement over the twelve (12) months preceding the underlying event giving rise to the liability; and (ii) £5,000 (five thousand pounds).

12.5.         The exercise of one or more of Foostock's rights or remedies in connection with this Agreement shall not preclude the exercise of any other right or remedy. Affiliate acknowledges, confirms and agrees that damages may be inadequate for a breach or a threatened breach of this Agreement and, in the event of a breach or threatened breach by Affiliate of any provision of this Agreement, Footstock's rights and obligations may be enforceable by specific performance, injunction, or other equitable remedy. Nothing contained in this Agreement shall limit or affect any of Footstock's rights at law, contract or otherwise, for a breach or threatened breach of any provision of this Agreement.

13.              CONFIDENTIALITY

13.1.         Each party shall keep confidential all Confidential Information of the other and shall not (and shall procure that its employees, officers, representatives or advisers who are subject to Clause 12.2 shall not) copy, use or disclose any such information to any third party, other than as may be necessary to comply with its obligations under this Agreement.

13.2.         Each party may disclose the other party's Confidential Information to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with this Agreement.

13.3.         The obligation of confidence shall not apply where the Confidential Information:

13.3.1.      is required to be disclosed by law, by any governmental or other lawful authority;

13.3.2.      was available to the receiving party on a non-confidential basis before disclosure by the disclosing party;

13.3.3.      was, is or becomes available to the receiving party on a non-confidential basis from a person who, to the receiving party's knowledge, is not bound by a confidentiality agreement with the disclosing party or otherwise prohibited from disclosing the information to the receiving party; or

13.3.4.      is or becomes generally available to the public other than as a result of its disclosure by the receiving party in breach of this clause.

This Clause shall continue in force notwithstanding the expiry or termination of this Agreement, whatever the reason for such termination

14.              DATA PROTECTION

14.1.         Both parties will comply with all applicable requirements of the Data Protection Legislation. This Clause 13  is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.

14.2.         Each party acknowledges and agrees that in relation to Personal Data disclosed pursuant to this Agreement that both parties are controllers albeit for separate purposes. In this respect, each party shall comply with their respective obligations as a controller under the relevant Data Protection Laws in respect to any Personal Data transferred pursuant to this Agreement.

15.              NOTICES

15.1.         Unless otherwise agreed to by the parties in writing, all notices required under this Agreement will be deemed effective (i) in the case of notices sent by Affiliate, when received and read by Footstock with a read receipt requested by way of email to affiliates@foostock.com, and (ii) in the case of notices sent from Footstock to Affiliate, when the email is sent to the email address registered by Affiliate when setting up his or her account.

15.2.         If Affiliate requires more general support, it should email: help@footstock.com

16.              GOVERNING LAW AND JURISDICTION

16.1.         This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.

16.2.         Each party irrevocably agrees that the courts of London, England shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.

17.              GENERAL

17.1.         Affiliate shall not (without the prior written consent of Footstock) assign, transfer, declare any trust over, charge or deal in any other manner with any of its rights and obligations under this Agreement. Footstock may assign, transfer, declare any trust over, charge or deal in any other manner with any of its rights and obligations under this Agreement.

17.2.         In the event that there is any conflict or inconsistency between this Agreement, the Application Form or any document referred to in this Agreement then unless otherwise explicitly specified, the terms and conditions of this Agreement shall prevail.     

17.3.         Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other party, or authorise either party to make or enter into any commitments for or on behalf of the other party.

17.4.         This Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.

17.5.         This Agreement (together with the documents referred to in it) constitutes the entire agreement between the parties in relation to its subject matter and supersedes all previous agreements (including any usage or custom and any terms arising through any course of dealing), undertakings, negotiations or arrangements in relation to its subject matter. For clarity, any existing written or oral agreement between the parties in respect of the provision of affiliate marketing related activities is hereby terminated (including any and all obligations of Footstock to make any payments to the Affiliate under or in connection with such agreement, which hereby shall cease to have any effect).

17.6.         Footstock may unilaterally amend any of the terms and conditions contained in this Agreement, at any time and at its sole discretion, by posting the amended agreement on the "Terms & Conditions" page on the 'Affiliate' section on the Footstock Website provided that where such terms are likely to have a material detrimental impact on Affiliate, Footstock shall use reasonable endeavour to promptly bring this to Affiliate's attention in advance. Any changes will take effect from the date specified at the head of the updated version of this Agreement (“Amendment Date”), and Affiliate hereby agrees to be bound by such changes from the Amendment Date. Affiliate is solely responsible for regularly checking the Footstock Website and making itself aware of any such amended versions and changes.

17.7.         If any amendment made pursuant to Clause 16.6 is unacceptable to Affiliate, Affiliate’s only recourse is to terminate this agreement with immediate effect. Affiliate’s continued participation in the Footstock affiliate programme following the Amendment Date will constitute a binding acceptance by Affiliate of the amended Agreement, irrespective of whether or not Affiliate has actually learned of or read the relevant changes.

17.8.         If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement. If any provision or part-provision of this Agreement is deemed deleted pursuant to this clause, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

17.9.         The failure to exercise or delay in exercising a right or remedy under this Agreement shall not constitute a waiver of the right or remedy or of any other rights or remedies. No single or partial exercise of any right or remedy under this Agreement shall prevent any further exercise of the right or remedy or the exercise of any other right or remedy.

17.10.      Except as expressly provided in this Agreement, the rights and remedies contained in this Agreement are cumulative and shall be in addition to every other right or remedy provided by law or otherwise.

17.11.      Each party shall (and shall use all reasonable endeavours at its own cost to ensure that any necessary third parties shall) do, execute and perform such further acts, things, deeds and documents as may from time to time be required to give full legal and practical effect to this Agreement.

17.12.      Save as required by law or any applicable regulatory authority, Affiliate shall not make any public announcement, issue any press release or make any statement to the public about this Agreement without the prior written consent of Footstock.