These
terms and conditions set out the rights and obligations which will
form the legal agreement ("this Agreement") between you
("Affiliate") and Noor and Zafir Ltd whose registered
office is Kemp House 152-160 CityRoad, London, EC1V
2NX("Noor and Zafir").
Upon validation and
acceptance by Noor and Zafir of the Affiliate's application to join
the Noor and Zafir Affiliate Program (as defined below), Noor and
Zafir will communicate its acceptance of the Affiliate's application
to the Affiliate at which time this Agreement will take effect
immediately.
1
Definitions
In
this Agreement the following terms have the following
meanings:
"Noor and Zafir Affiliate Program" the
Affiliate scheme arranged and operated by Noor and Zafir;
"Noor
and Zafir Link" a hypertext link incorporating the Tracking Code
which allows Visitors to move directly from the Affiliate Website to
the Noor and Zafir Website (which is available via a link from the
Noor and Zafir Affiliate Dashboard);
"Noor and Zafir
Website" the internet website owned or operated by Noor and
Zafir being located at www.Noorandzafir.comor
such other address as Noor and Zafir may from time to time inform the
Affiliate of and where Visitors may carry out Sales;
"Chargeback"
the cancellation of Commission due to the Affiliate (if not already
paid) or payment to Noor and Zafir of a sum equal to Your Commission
paid in respect of a Transaction in any circumstances specified by
Noor and Zafir at its sole discretion, including in the case of
returned items, cancellations, fraud or suspected fraud on the part
of either the affiliate or a Visitor;
"Returned
Items" & "Cancelled Items" Orders returned or
cancelled in accordance with Noor and Zafir's return and cancellation
policy which can be found on the Noor and Zafir website. The
chargeback period for returns is 30 days.
"Commencement
Date" the date on which Noor and Zafir informs the Affiliate
that the Affiliate's application to join Noor and Zafir's Affiliate
scheme has been successful;
"Confidential
Information" all information or data (whether oral, visual,
recorded in writing, in any other medium or by any other method)
disclosed to or obtained by one Party from the other or from a third
party, including without limitation any information relating to a
Party's operations, processes, plans, intentions, price lists,
pricing structures, Intellectual Property Rights, market
opportunities, customers and business affairs;
"Control"
the power of a person or group of persons acting together, to secure:
i) by means of the holding of shares or the possession of voting
power in or in relation to that or any other company; and ii) by
virtue of any powers conferred by the articles of association or
other document regulating that or any other body corporate; that the
affairs of the first body corporate are conducted in accordance with
the wishes of that person;
"Intellectual Property
Rights" all copyright and other intellectual property rights,
howsoever arising and in whatever media, whether or not registered or
capable of registration, including (without limitation) patents,
trade marks, service marks, trade names, design rights, database
rights and any applications for the protection or registration of
these rights and all renewals and extensions thereof throughout the
world;
"Party" a party to this
Agreement;
"Publisher Agreement" the agreement
between the Affiliate and Noor and Zafir relating to
pay-for-performance marketing programs;
"Sale" a
purchase made by a Visitor on the Noor and Zafir Website;
"Service
Website" the website maintained by Noor and Zafir
"Tracking
Code" the tracking code used by Noor and Zafir to track and
monitor various internet usage patterns including without limitation
the Affiliate's performance in referring internet Visitors from Your
Website to the Noor and Zafir Website and recording which of those
referrals result in sales of goods or services from the Noor and
Zafir Website;
"Transaction" a Sale on the Noor
and Zafir Website;
"Visitor" a person who uses
the Noor and Zafir Link created pursuant to this Agreement to be
transferred from the Affiliate's Website or a subscription e-mail
sent by the Affiliate to the Noor and Zafir Website;
"Affiliate
Commission" or "Commission" the compensation the
Affiliate may earn on Transactions;
"Affiliate
Website" the internet website(s) owned or operated by the
Affiliate;
"Qualifying Link" is a link from Partner's
site to Merchant's using one of the Required URLs or any other URL
provided by Merchant if it is the last link to the Merchant's site
that the Customer uses during a Session where a sale of a product or
a service to Customer occurs.
"Merchant" any site
owner selling products and services;
"Partner" any
site owner that wishes to promote and link to the Merchant's
site.
1.
Offers and Engagements.
1.1.
From time to time, Merchant may post offers to pay to other
participants a specified commission in return for certain advertising
services leading to a Qualifying Link. If such offers receive an
identification number they shall be deemed to be an "Offer"
for purposes of this Agreement. The term "Offer" shall also
include any counter-offers resulting from an Offer.
1.2. If an
Offer made by one party is accepted by the other party in accordance
with the Offer's terms, an "Engagement" will have been
formed. Each Engagement shall have the same identification number as
the original Offer that lead to the Engagement and shall be governed
by the terms and conditions of this Agreement. However, in the event
of any inconsistency between the terms of the specific Engagement and
the terms of this Agreement, the terms of the Engagement shall
govern.
1.3. At any time prior to Partner providing a Qualifying
Link, Merchant may with or without notice (a) change, suspend or
discontinue any aspect of an Offer or an Engagement or (b) remove,
alter, or modify any graphic or banner ad submitted by Merchant for
an Offer or an Engagement. Partner agrees to promptly implement any
request from Merchant to remove, alter or modify any graphic or
banner ad submitted by Merchant that is being used by Partner as part
of an Engagement.
2
Interpretation
2.1
In this Agreement unless the context requires otherwise:
2.1.1
references to a Clause are to a clause of this Agreement;
2.1.2
references to this Agreement are to this Agreement as amended from
time to time in accordance with the notice provision in Clauses 18 &
20.1;
2.1.3 the singular includes the plural and vice versa;
references to any gender include every gender; and references to
persons include corporations, partnerships and other unincorporated
associations or bodies of persons;
2.1.4 all headings are for
convenience, have no legal effect and should be ignored when
interpreting this Agreement;
2.1.5 the words "other",
"including" and "in particular" do not limit the
generality of any preceding words;
2.1.6 a reference to any
provision of any enactment will be construed as a reference to that
provision or enactment as amended, re-enacted or extended at the
relevant time; and
2.1.7 unless the contrary appears any right
or power conferred by this Agreement may be exercised and any duty or
obligation imposed by this Agreement is to be performed, from time to
time, as occasion requires.
3
General
3.1
Subject to the terms of this Agreement, the Affiliate agrees to
promote Noor and Zafir by making available on the Affiliate's Website
the Noor and Zafir Link and Noor and Zafir agrees to pay the
Affiliate the agreed commission.
4
Commencement
4.1
This Agreement shall commence on the Commencement Date and shall
continue until terminated by Noor and Zafir upon five (5) days
written notice to the Affiliate by email or by the Affiliate giving
written notice by email.
5
Your Use of the Noor and Zafir Link
5.1
Subject to the licence granted to the Affiliate under Clause 5.2
below, Noor and Zafir reserves all of its right, title and interest
in its Intellectual Property Rights in the Noor and Zafir Link and
the Noor and Zafir Website.
5.2 Noor and Zafir grants to the
Affiliate during the currency of this Agreement a non-exclusive,
royalty-free, world-wide licence to use, reproduce and display the
Noor and Zafir Link on the Affiliate's Website solely for the
purposes envisaged by this Agreement. Any other use of the Noor and
Zafir Link by the Affiliate or to link in any other way to the Noor
and Zafir Website not set out in the preceding sentence of this
Clause 5.2 is expressly excluded.
5.3 The Affiliate shall only
use Noor and Zafir Links obtained from the Affiliate’s Dashboard on
www.noorandzafir.com to link to the Noor and Zafir Website.
5.4
The Affiliate shall post the Noor and Zafir Link on the Affiliate
Website and shall, except with the prior written consent of Noor and
Zafir, have no right to display the Noor and Zafir Link other than in
the format obtained by the Affiliate from Noor and Zafir.
5.5
Noor and Zafir may in its sole discretion, from time to time, change
the appearance or style of the Noor and Zafir Link and such Noor and
Zafir Link shall be dynamically modified by Noor and Zafir made
available to the Affiliate an amended Noor and Zafir Link in Noor and
Zafir Affiliate’s Dashboard. The Affiliate agrees to only use the
most up to date version of the Noor and Zafir Link for the purposes
set out in this Agreement and shall remove any Noor and Zafir Link
from time to time that is no longer current.
5.6 The Affiliate
acknowledges that the Intellectual Property Rights of Noor and Zafir
(including without limitation the Noor and Zafir Link and Noor and
Zafir Marks) are and shall remain the sole and exclusive property of
Noor and Zafir. Any goodwill associated with any such rights shall
inure exclusively for the benefit of Noor and Zafir.
5.7 The
Affiliate agrees not to use the Noor and Zafir Link in a manner that
disparages Noor and Zafir, or its products or services, or portrays
Noor and Zafir and/or its products or services in a false light. The
Affiliate will comply with Noor and Zafir's requests as to the use of
the Noor and Zafir Link or Intellectual Property Rights and will not
knowingly take any action that diminishes the value thereof.
5.8
The Affiliate agrees not to reproduce or store all or any part of the
Noor and Zafir Website in any form on the Affiliate's Website or on
any other website or other electronic retrieval system.
6
Affiliate Warranties
6.1
The Affiliate represents and warrants to Noor and Zafir that:
6.1.1
The Affiliate shall not register, lodge or supply with or to any
internet search engine or like service the terms "noor and
zafir", "Noor and Zafir", "noorandzafir",
"Noor and Zafir.com", "noorandzafir.com",
"www.noorandzafir.com",
"noor zafir", "noor and zafir.com", "noor
and-zafir", "www.Noor
and Zafir",
www.noor and zafir.com", "noor zafir", "noor-and
zafir", "www.noorandzafir",
"noor and zafir .com", "noor and zafir com",
"www.noor-and zafir.com", "www.noorandzafir.co.uk",
"www.noor-andzafir.com", "noor and zafir",
"noor-and zafir.com", "www.noor and zafir", "Noor
and Zafir com", "noor.and.zafir", "www.Noor and
Zafir-com", "http://www.Noor and Zafir.com", "noor
and zafir", "noorand zafir", "nor andzafir",
"Noor and Zafir.com", "noorandzafir.com", "Noor
and Zafir.co.uk", "noorandzafir.co.uk", "Noor and
Zafir", "www.noorandzafir.com", "noor and
zafir.com", "zafir", "noor zafir" or any
other phrase which could be confused intentionally or otherwise, with
the word "Noor and Zafir" unless otherwise agreed in
writing by Noor and Zafir;
6.1.
2 The Affiliate shall not register, lodge or supply with or to any
internet search engine or like service the terms or phrases which
could be confused intentionally or otherwise, with the brands and
products listed on Noor and Zafir'S website
(http://www.noorandzafir.com) unless otherwise agreed in writing by
Noor and Zafir;
6.1.3
The Affiliate shall not use any form of incentive for Visitors to
click on the Noor and Zafir Link without the prior written agreement
of Noor and Zafir;
6.1.4
The Affiliate shall not use an internet search engine or like service
to provide links directly to the Noor and Zafir Website;
6.1.5
If the Affiliate uses an internet search engine or alike service to
provide links to the Affiliate's Website, the Affiliate shall not
register, lodge or supply with or to any such internet search engine
or like service any terms which infringe the Intellectual Property
Rights of any third party or any terms which are associated with or
are the name or logo of Noor and Zafir's direct or indirect
competitors and suppliers and the Affiliate shall fully indemnify and
keep Noor and Zafir fully indemnified against all loss, damages,
claims, demands, actions, costs, charges, expenses and liabilities of
whatsoever nature which Noor and Zafir may suffer or incur as a
result of breach of this warranty;
6.1.6
The Affiliate shall ensure that no other web pages, links or other
pop-up boxes appear on a Visitor's screen when Noor and Zafir's Link
is used and that the only web page that appears on the Visitor's
screen following the use of the Noor and Zafir Link is the Noor and
Zafir Website homepage;
6.1.7
The Affiliate shall not participate as an Affiliate on behalf of Noor
and Zafir or enter into a similar arrangement on Noor and Zafir's
behalf other than as provided under this Agreement;
6.1.8
The Affiliate will do nothing that would detrimentally affect Noor
and Zafir or Noor and Zafir's good name and/or reputation and shall
fully indemnify and keep Noor and Zafir fully indemnified against all
loss, damages, claims, demands, actions, costs, charges, expenses and
liabilities of whatsoever nature which Noor and Zafir may suffer or
incur as a result of breach of this warranty;
6.1.9
The Affiliate will comply in all respects with any obligations the
affiliate may have under the Data Protection Act 1998 and the Privacy
and Electronic Communications (EC Directive) Regulations
2003;
6.1.10
Affiliate's Website:
6.1.10.1
will comply with all applicable laws and regulations;
6.1.10.2
will not infringe any Intellectual Property Rights of a third
party;
6.1.10.3
will not libel, defame, cause injury to, invade the privacy of or
otherwise infringe or violate the rights of any person or third
party;
6.1.10.4
will not contain any defamatory, pornographic or unlawful content;
or
6.1.10.5
will not link directly to any material which is in breach of the
provisions of this Agreement.
7
Noor and Zafir’s Obligations
7.1
Noor and Zafir shall keep detailed and up to date records of all
Sales.
8
Affiliate’s Indemnity
8.1
The Affiliate undertakes that it will fully indemnify Noor and Zafir
and keep Noor and Zafir fully indemnified against all loss, damages,
claims, demands, actions, costs, charges, expenses and liabilities of
whatsoever nature which Noor and Zafir may suffer or incur as a
result of the breach or negligent performance or failure in
performance by the Affiliate of the terms of this Agreement.
8.2.
Merchant and Partner jointly and severally hereby agree to indemnify,
defend, and hold harmless Noor and Zafir the company and its
affiliates, officers, directors, employees and agents (collectively,
"Noor and Zafir") from and against any and all liability,
claims, losses, damages, injuries or expenses (including reasonable
attorneys' fees) directly or indirectly arising from or relating to
any Offer, Engagement, any other matter related to this Agreement or
the subject matter hereof any dispute relating thereto.
9
Affiliate Commission
9.1
Payment of the Affiliate's Commission shall be made in accordance
with the terms and conditions of Noor and Zafir's agreement with the
Affiliate.
9.2
Noor and Zafir's obligation to pay Affiliate Commission shall be
discharged by payment to the Affiliate and shall be accepted by the
Affiliate as a full and final settlement of any and all sums payable
by Noor and Zafir under this Agreement.
9.3
The Affiliate agrees that Noor and Zafir may require a Chargeback in
any circumstances specified by Noor and Zafir at its sole discretion
provided that the Chargeback is notified to the Affiliate within 30
days of the date that Noor and Zafir validates the Transaction as
leading to a processed Transaction. If a Chargeback is required by
Noor and Zafir and payment of Affiliate Commission in connection with
that Chargeback has already been made, such sum may be deducted from
the Affiliate's Commission due for the following month. If at the end
of any month the amount owing to Noor and Zafir is greater than that
owed by Noor and Zafir to the Affiliate, Noor and Zafir reserves the
right to request a refund from the Affiliate
9.4.
All determinations of Qualifying Links and whether a commission is
payable will be made by Noor and Zafir and will be final and binding
on both Merchant and Partner. Prices for the products will be set
solely by Merchant in its discretion.
9.5
The Affiliate agrees that transactions made for gift card purchases
of any value on Noor and Zafir.COM are non-commissionable. Any
transactions resulting from gift card redemptions will be
commissionable.
10
Termination and Effect of Termination
10.1
Notwithstanding the provision of Clause 4.1 above Noor and Zafir may
terminate this Agreement forthwith by giving written notice to the
Affiliate if :
10.1.1
the Affiliate commits a material breach of this Agreement (other than
a breach of Clause 6), which is capable of remedy, and fail to remedy
the breach within 14 days of written notice to do so;
10.1.2
the Affiliate commits a material breach of this Agreement which
cannot be remedied;
10.1.3
the Affiliate is repeatedly in breach of this Agreement;
10.1.4
the Affiliate is in breach of any of the warranties set out in Clause
6;
10.1.5
the Affiliate is the subject of a bankruptcy order, or become
insolvent, or make any arrangement or composition with or assignment
for the benefit of the Affiliate's creditors, or if the Affiliate
goes into either voluntary (otherwise than for reconstruction or
amalgamation) or compulsory liquidation, or a receiver or
administrator is appointed over the Affiliate's assets; or
10.1.6
the Affiliate undergoes a change in Control.
10.2
On termination:
10.2.1
all licences granted by Noor and Zafir to the Affiliate under this
Agreement will immediately terminate;
10.2.2
The Affiliate shall immediately remove the Noor and Zafir Link from
the Affiliate's website; and
10.2.3
Noor and Zafir shall have no obligation to pay the Affiliate any
Commission which is accrued but unpaid as at the date of termination
if this Agreement is terminated under Clauses 10.1.1, 10.1.2, 10.1.3,
10.2.4 or 10.1.5.
10.2.5
. Either party may terminate any Engagement at any time by
deactivating or deleting their Affiliate accounts. Termination of an
Engagement shall not terminate this Agreement or any other
Engagement.
11
Confidentiality
11.1
The Parties will at all times keep confidential all Confidential
Information acquired in consequence of this Agreement, except for
information which they are bound to disclose by law or where
information requested by regulatory agencies or information given to
their professional advisers where reasonably necessary for the
performance of their professional services. The provisions of this
Clause 11.1 shall survive termination of this Agreement.
12
Remedies
12.1
The remedies available to either Party under this Agreement shall be
without prejudice to any other rights, either at common law or under
statute, which it may have against the other Party.
13
Costs
13.1
The Parties will bear all their own costs and expenses incurred in
connection with this Agreement.
14
Relationship of the Parties
14.1
Noor and Zafir and the Affiliate are independent Parties and not the
agent, representative or partner of the other Party.
15
Waiver
15.1
The failure of either Party to enforce or to exercise, at any time or
for a period of time, any term of or any right arising pursuant to
this Agreement does not constitute and shall not be construed as a
waiver of such terms or right and shall in no way affect that Party's
right later to enforce or exercise it.
16
Severability
16.1
The invalidity or unenforceability of any term of, or any right
arising pursuant to, this Agreement shall not in any way affect the
remaining terms or rights which shall be construed as if such invalid
or unenforceable term or right did not exist.
17
Notices
17.1
Any notices served by the Parties under this Agreement may be
delivered by hand or sent by first class recorded delivery post
marked for the attention of the "Affiliate Manager" to the
address supplied by the relevant Party to the other Party or to any
other address in the United Kingdom that the addressee may notify the
other Party of in writing from time to time.
17.2
Notices may be sent by facsimile provided they are also delivered by
hand or sent by post in accordance with Clause 17.1 above. Notice is
not validly served if sent by e-mail.
18
Assignment
18.1
This Agreement is personal to the Affiliate and may not be assigned,
transferred, sub-contracted or otherwise parted with this Agreement
or any right or obligation under it without Noor and Zafir's prior
written consent.
19
Force Majeure
19.1
Neither Party shall have liability to the other Party to the extent
that its performance of its obligations under this Agreement is
prevented or hindered due to any circumstances outside its reasonable
control.
20
Variation
20.1
This Agreement (or any provision of it) may be amended upon five (5)
days written notice by Noor and Zafir to the Affiliate signed by a
duly authorised representative of Noor and Zafir.
20.2
The continued performance of the Affiliate's obligations under this
Agreement after the notice period set out in Clause 20.1 has elapsed
shall be deemed to be a binding acceptance of such amendments.
21
Entire Agreement
21.1
This Agreement and the Noor and Zafir Information Page contain all
the terms which the Parties have agreed in relation to the subject
matter of this Agreement. Neither of the Parties have been induced to
enter into this Agreement by a statement or promise which it does not
contain save that this clause shall not exclude any liability which
one Party would otherwise have to the other in respect of statements
made fraudulently.
22
Enforcement by Third Parties
22.1
No person who is not a Party has a right to enforce any term of this
Agreement under the Contracts (Rights of Third Parties) Act 1999.
23
Law and Jurisdiction
23.1
The construction, validity and performance of this Agreement is
governed by the laws of England and the Parties accept the exclusive
jurisdiction of the English Courts.