This Time Next Year

AFFILIATE MEMBERSHIP

TERMS AND CONDITIONS

PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY

These terms and conditions (“conditions”) constitute an agreement between This Time Next Year Ltd (“TTNY”) and the Affiliate and shall govern the Affiliate’s participation in the Service. By clicking the "I have read and accept the TTNY Affiliate Membership Agreement" box the Affiliate indicates its acceptance of these Conditions.

DEFINITIONS

The following definitions apply in these Conditions:

“Affiliate” an individual or an entity who has had their application.

“Affiliate Website” means any website (or other locations) where the Affiliate has placed TTNY Link(s);

“Fee(s)” the amount(s) due to the Affiliate from TTNY resulting from a Visitor purchasing the service.

“Intellectual Property Rights” means all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world;

“Valid Transaction(s)” means a transaction which (i) involves submitting  the assigned affiliate code which a bona fide Visitor voluntarily assigns to on the TTNY website; and (ii) is consistent with these Conditions; and (iii) not obtained in a misleading, abusive or indirect manner for the sole purpose of increasing Affiliate Fees; and (iv) fulfils any other action/requirements required by TTNY for a transaction to be deemed valid; and (v) the transaction has been approved/validated by TTNY;

1. JOINING THE SERVICE

1.1 To apply to become an Affiliate and join the Service, the Affiliate must fill out an online application to become an Affiliate (“Application”). TTNY will notify the Affiliate of its acceptance or rejection of its Application.

1.2 TTNY may reject the Affiliate’s Application for any reason whatsoever in its sole discretion. TTNY may reject the Affiliate’s Application if it decides that the Affiliate and/or any Affiliate Website (i) is unsuitable for or incompatible with the Service; (ii) incorporates images or content that is in any way defamatory, obscene, pornographic, threatening, invasive of privacy or publicity rights, abusive, illegal, hateful, harmful, harassing, racially or ethnically discriminatory or otherwise objectionable; (iii) incorporates any materials which infringe or assist others to infringe on any copyright, trademark or other Intellectual Property Rights; (iv) is an incentive-based website, such as a lottery or sweepstakes site which rewards users for clicking on links; (v) is used, either directly or indirectly for the sole purpose of generating clicks to increase Fees rather than to promote the clicks or sales of TTNY; (vi) engages in activities that violate TTNY Privacy Policy  (vii) openly encourages Visitors to click on banner ads or other sponsored links to support any Affiliate Website; or (viii) for any other reason which TTNY deems, in its sole discretion, reasonable.

2. AFFILIATE OBLIGATIONS

2.1 If the Affiliate’s Application is accepted by TTNY, the Affiliate will be provided with a code. Subject to the terms and conditions of this Agreement, the Affiliate may display a TTNY Link on the Affiliate Websites, placing and using this Link in as many areas on the Affiliate Websites as the Affiliate desires.

2.2 The Affiliate must inform TTNY if an Affiliate Website is (i) no longer active; or (ii) is owned by another entity than the Affiliate.

2.3 The Affiliate must not block or interfere with URL data.

2.4 The Affiliate agrees to:

(a) cooperate fully with TTNY to establish and maintain the Links;

(b) use the Links only to procure Valid Transactions and not use the Links to mislead Visitors;

(c) not use links to the Website other than the Links provided by or approved by TTNY;

(d) not use the Links in any way that may alter the look, feel or functionality of the TTNY Website;

(e) not “spam” or use unsolicited email marketing;

(f) provide accurate, up to date, complete and non-misleading information on the Affiliate Website regarding goods and services for sale by TTNY, including but not limited to pricing, discounts, promotions and description of goods and services; and

2.5 The Affiliate acknowledges that hard coding any banner, button or Link may impact on the future accuracy of the TTNY Links.

2.6 The Affiliate agrees to immediately notify TTNY if it suspects or is aware of actual or possible abuses of the Service.

3. INTELLECTUAL PROPERTY RIGHTS

3.1 Subject to these Conditions, TTNY hereby grants the Affiliate a limited, non-exclusive, non-assignable, non-transferable, non-sublicense able, royalty-free license during the term of this Agreement to use the IP Materials on the Affiliate Website(s), solely in connection with the exercise of the Affiliate’s obligations under this Agreement.

3.2 TTNY’s obligations under this clause shall expressly exclude the provision of any proprietary software.

3.3 TTNY shall have no liability for any improper use of the IP Materials by the Affiliate and the Affiliate shall indemnify TTNY from and against any loss arising from the improper use of the subject matter of this clause.

3.4 The Affiliate acknowledges that TTNY, or its licensees, own all of the Intellectual Property Rights in and to all the IP Materials. All rights not expressly granted hereunder are hereby reserved by TTNY or its licensors.

3.5 The Affiliate agrees that it will not assert any copyright, trademark or other intellectual property ownership or other proprietary rights in any of the IP Materials, or any part thereof or in any derivative work of the IP Materials. 

4. PAYMENT

4.1 TTNY shall, quarterly issue statements of account to the Affiliate for all sums due under this Agreement. Such accounting shall set out details of all Valid Transactions and the Fee due to the Affiliate.

4.2 If, in the sole opinion of TTNY, the Affiliate generates or attempts to generate Fees by way of a breach of the terms of this Agreement, the Affiliate hereby assigns to TTNY any and all Fees generated by the Affiliate regardless of the time or manner in which the Fees were generated and the Affiliate hereby waives and releases any claim in respect of such Fees.

4.3 In the event that TTNY is unable to contact the Affiliate at the address and/or contact details set out in the Application and; (a) TTNY is unable to remit Fees credited to the account of the Affiliate due to the provision of insufficient or out of date payment information by the Affiliate to TTNY any money due will be held for a period of 6 months.

4.4 Time shall not be of the essence regarding payment of the Fees and notwithstanding the Late Payment of Commercial Debts (Interest) Act 1998 and Late Payment of Commercial Debts Regulations 2002 interest shall not accrue on any Fees which pursuant to this Agreement are due to the Affiliate. However TTNY will endeavour to pay any monies due within 60 days.

4.5 All statistics in relation to Valid Transactions and whether Fees are payable to the Affiliate are collected and calculated by TTNY and these will be the only valid statistics used in determining any sums due to the Affiliate.

4.6 Except as otherwise specifically provided in these Conditions, each party shall be responsible for all costs, claims and expenses relating to the performance of its obligations hereunder.

5. FEE VARIATION

5.1 TTNY’s fees will be varied once a year subject to one month’s written notice. 

6 VARIATIONS 

6.1 Any variation to the terms of this Agreement must be evidenced by a written instruction from either party.

7 ANNUAL REVIEW

7.1 TTNY agree to review the service provided under this Agreement on an annual basis. 

 
8. REPRESENTATIONS AND WARRANTIES

8.1 The Affiliate represents and warrants that: (a) it has full power and authority to enter into this Agreement;

(b) the Affiliate is and shall be responsible for compliance with all applicable laws, rules and regulations, if any, related to the performance of the Affiliate’s obligations under this Agreement; (c) the Affiliate is solely responsible for the development, maintenance and operation of, and the content on, the Affiliate Website(s), the technology used by the Affiliate in connection with the Affiliate Website, and the means by which Visitors and other users access the Affiliate Website;

(d) all the content on the Affiliate Website(s): (i) is owned or validly licensed for use by the Affiliate in the public domain; (ii) is not defamatory or obscene; (iii) does not infringe or violate any Intellectual Property Rights of any third party; (iv) does not result in any consumer fraud, product liability, breach of contract to which the Affiliate are a party or which cause injury to any third party; (v) does not influence a search engine's result in a way that violates that search engine's published policies including without limitation its "spam" policy; and (vi) does not and shall not contain objectionable material, including without limitation pornography

(e) TTNY warrant only that it will provide professional services that conform with generally accepted industry standards and practices.  No warranty is given in respect of results or outcomes, which may be obtained.

9. LIMITATION OF LIABILITY 

9.1 Nothing in this Agreement limits or excludes the liability of either party:

(a) for death or personal injury resulting from its own negligence; or

(b) for any damage or liability incurred by the other party as a result of fraud or fraudulent misrepresentation by the other.

9.2 The Service, its use and the results of such use are provided "as is" to the fullest extent permissible pursuant to applicable law. TTNY disclaims all warranties express or implied, including, but not limited to, implied warranties of satisfactory quality and fitness for a particular purpose, in relation to the Service, its use and the results of such use. Without limiting the foregoing, TTNY specifically disclaims any warranty (i) that the Service will be uninterrupted or error-free, (ii) that defects will be corrected, (iii) that there are no viruses or other harmful components, (iv) that the security methods employed will be sufficient, or (v) regarding correctness, accuracy, or reliability. The Service relies on the performance of third parties beyond TTNY’s control.

9.3 Subject to Condition 6.1, TTNY shall not be liable to the Affiliate for:

(a) loss of profits; or

(b) loss of business; or

(c) depletion of goodwill and/or similar losses; or

(d) loss of anticipated savings; or

(e) loss of goods; or

(f) loss of contract; or

(g) loss of use; or

(h) loss of corruption of data or information; or

(i) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses even if it has been advised of the possibility of such damages.

10. RESERVATION OF RIGHTS

TTNY may add to, change, suspend or discontinue any aspect of the Service at any time.

11. CONFIDENTIALITY

In the course of this Agreement, it may be necessary for the parties to have access to information that is confidential to the other (“Confidential Information”).  Confidential Information shall not include:
a) Which is, at the time of disclosure, in the public knowledge, or which after disclosure, becomes part of the public knowledge, except by breach of this Agreement;
b) Which was in the receiving party’s possession (as reflected in written records) at the time of disclosure by the disclosing party; and which was not acquired, directly or indirectly, from the disclosing party;
c) Which the receiving party can demonstrate; by written documents, resulted from its own research and development, independent of disclosure from the disclosing party;
d) Which the party receiving the information already possesses or which it obtains or

originates independently in circumstances in which that party is free to disclose it; or which either party is obliged to disclose to comply with any requirement of the law.
The parties agree both during this Agreement and for a period of one year after termination of this Agreement, to hold each other’s Confidential Information in confidence.  The parties agree not to make each other’s Confidential Information available in any form to any third party or to use each other’s Confidential Information for any other purpose related to this Agreement.

Each party agrees to use its reasonable endeavours to ensure that Confidential Information is not disclosed or distributed by its employees or agents in breach of the provisions of this Agreement.

The Affliliate agrees that any information received pursuant to this Agreement shall be deemed subject to the non-disclosure obligations set forth herein.

12. RESTRICTIVE COVENANTS

12.1Both parties agree that they will not during the term of this agreement and for a period of one year from the expiry of this agreement, without the others prior written consent, appoint in any way or cause to be employed, engaged or appointed an employee, agent, director, consultant or independent contractor of the other

13. TERM AND TERMINATION

13.1 Subject to terms and conditions of this Agreement, this Agreement shall commence on the date on which the Affiliate click on the "I have read and accept the This Time Next Year Ltd. Terms and Conditions" box and the Affiliates application has been accepted by TTNY and shall continue until terminated by either party by giving the other not less than one months’ written notice.

13.2 Without prejudice to any other rights or remedies which TTNY may have, if the Affiliate is in breach of any of its obligations under clause 2, TTNY may:

(a) suspend the Affiliate from participating in the Service; and/or

(b) remove or disable any TTNY Links; and/or

(c) withhold any payment of the Fees that would otherwise be due to the Affiliate; and/or

(d) terminate this Agreement immediately without liability on written notice to the Affiliate.

13.3 Without prejudice to any other rights or remedies which the parties may have, either party may terminate the Agreement without liability to the other immediately on giving notice to the other if:

(a) Is in breach of any term of this Agreement and (if such breach is remediable) fails to remedy that breach within a period of ten (10) days after being notified via e-mail or in writing to do so;

(b) is deemed unable to pay its debts within the meaning of sections 123 or 268 of the Insolvency Act 1986 as applicable;

(c) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party;

(d) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party;

(e) a third party person becomes entitled to, or does appoint a receiver over the assets of the other party;

(f) is the subject of a bankruptcy petition or order; or

(g) begins negotiations with creditors or makes a proposal for or enters into any compromise or arrangement with its creditors.

13.4 The termination of this Agreement shall not of itself give rise to any liability on the part of either party to pay compensation to the other for loss of profits or goodwill, or to reimburse the other for any costs relating to or resulting from such termination, or for any other loss or damage.

14. CONSEQUENCES OF TERMINATION

14.1 On termination of the Agreement for any reason:

(a) all accrued rights and liabilities of the parties as at termination shall not be effected;

(b) all licences granted herein shall terminate immediately and revert to TTNY or to its licensors;

(c) the Affiliate shall immediately stop using the IP Materials and remove all Merchant Links from all Affiliate Websites together with any IP Materials which are displayed on the Affiliate Websites.  The Affiliate shall then (if required by TTNY) make a declaration that the whole of the provisions of this clause have been complied with;

(d) the Affiliate shall not be entitled to receive any Fees for any Valid Transactions which occur after the date of termination.

15. NOTICES

15.1 Any notice required to be given under this Agreement shall be in writing and shall be delivered personally, or sent by pre-paid first-class post, recorded delivery or by commercial courier to the other party at its address, or as otherwise specified by the relevant party by notice in writing to the other party.

15.2 Any notice shall be deemed to have been duly received if delivered personally, when left at the address and for the contact. or, if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second business day after posting, or if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed. Notices may be sent via e-mail if followed by hard copy in accordance with the above stated procedures. The date of receipt of notice shall run from the date of receipt of the hard copy.

15.3 Notices given under this Agreement shall be sent: (a) To This Time Next Year Ltd. 6 Newton House, Northampton Science Park, Moulton Park, Northampton, NN3 6LG (b) To Affiliate: the address and contact details sent out in the Application.

16.GENERAL

16.1 This Agreement is personal to the Affiliate and the Affiliate shall not, without the prior written consent of TTNY assign or transfer any of its rights and obligations under or arising out of this Agreement to any third party. TTNY may without the prior consent of the Affiliate assign or otherwise transfer any of its rights, benefits and duties under this Agreement.

16.2 Neither party shall have any liability under the Agreement if it is prevented from, or delayed in performing, its obligations under the Agreement or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including (without limitation) strikes, lock-outs or other industrial disputes (whether involving the workforce of either party or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.

16.3 The Agreement constitutes the entire agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter. No other representation or statement, whether or not in writing shall form a term of the Agreement.

16.4 Nothing in the Agreement is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent or employee of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.

16.5 A person who is not a party to this Agreement shall not have any rights under or in connection with it by virtue of the Contracts (Rights of Third Parties) Act 1999.

16.6 The Agreement and any dispute or claim arising out of or in connection with it or its subject matter, shall be governed by, and construed in accordance with, the law of England and Wales.

16.7 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, the Agreement or its subject matter.