This agreement is entered into between Simply Online Media Limited, a company registered in England and Wales with company number 07849157, whose registered office is 1C Riparian Way, The Crossings Business Centre, Cross Hills, Keighley, West Yorkshire BD20 7AA (“Simply Online Media”) and [Insert name, address and other relevant details of Affiliate] (the “Affiliate”) and is subject to the schedules and to any other documents expressly referred to herein as forming part of this Agreement (this agreement and all such documents collectively being referred to as the “Agreement”).
In consideration of the mutual obligations set out below the Parties agree as follows:
1.1 In this Agreement the following words shall have the following meanings unless otherwise expressly stated:
“Acceptable Use Policy” means the policy on what constitutes acceptable use of the Simply Online Media Website set out in Schedule 1 to this Agreement and contained in the Affiliate Control Panel, as may be amended from time to time by Simply Online Media on notice to the Affiliate;
“Act” means the Data Protection Act 1998 as amended and the terms Data Controller, Data Processor, Data Subject, Process and Personal Data shall have the meanings given to them in section 1 of the Act;
“Affiliate Control Panel” means the user system interface made available to the Affiliate on the Simply Online Media Website;
“Affiliate Guide” means the document contained on the Affiliate Control Panel as amended from time to time;
“Affiliate Payment” means the payment per Success Lead as displayed on the Affiliate Control Panel (or such other sum as varied by the parties in accordance with the Agreement);
“Affiliate Website” means the website or websites owned, operated or managed by the Affiliate located at the URL(s) notified to Simply Online Media on Registration;
"Applicable Law" means the laws of England, Wales and the European Union and other laws or regulations, regulatory policies, guidelines or industry codes to the extent they apply to the matters which are the subject matter of this Agreement (including without limitation, Data Protection Legislation, Financial Services Regulations, the DMP Protocol, DEMSA Code and the CMR Rules), in each case for the time being;
“Approved Web Form” means either the Hosted Solution or a form arising from the Web Service;
“Buyer” means an adviser on, or provider of, FSPs and, where required, registered with and authorised by, the Financial Conduct Authority;
“Buyer Payment” means a payment made by a Buyer to Simply Online Media as a consequence of a Customer Lead. This payment may include a fee wholly due to Simply Online Media for the provision of services;
"Call" means a telephone call by Simply Online Media or a Buyer for the purpose of marketing and selling Simply Online Media's or the Buyer's services to an Individual.
"CMR Rules" means the rules and guidance issues by The Claims Management Regulator in relation to claims management for the time being;
“Confidential Information” means any and all secret or confidential commercial, financial, marketing, technical information, know-how, trade secrets and other information (including without limitation user names and passwords) in written, electronic or any other form or medium whether disclosed orally or in writing before, on or after the date of this Agreement;
“Customer” means a person who has expressed an interest to the Affiliate in purchasing an FSP;
"Customer Data" means Personal Data of a Customer;
“Customer Lead” means the Customer’s name, address, telephone and email contact details and the specific details of the FSP that the Customer has expressed an interest in purchasing and express consent from the Customer to being contacted by a Buyer regarding the provision of such FSP and by SOML regarding the provision of services by SOML or its group, which are submitted from an Approved Web Form by the Affiliate to Simply Online Media;
“Data Feed” means any marketing information made available to the Affiliate by Simply Online Media for the purposes of providing information to Customers about FSPs including without limitation best-buy tables;
"Data Protection Legislation" means the Act, the Data Protection Directive (95/46/EC), Interception Legislation, the Electronic Communications Data Protection Directive (2002/58/EC), the ePrivacy Regulations and all applicable laws and regulations relating to the processing of personal data and privacy, including where applicable the guidance and codes of practice issued by the Information Commissioner, and the equivalent of any of the foregoing in any relevant jurisdiction;
"DEMSA Code" means the code of conduct for the time being applicable to members of the Debt Managers Standards Association.
"DMP Protocol" means the Debt Management Plan Protocol for the time being issued by The Insolvency Service.
"Email" means an email from Simply Online Media or a Buyer for the purpose of marketing and selling Simply Online Media's or the Buyer's services to an Individual.
"Financial Cap" means the sum of £500,000 if the Term is 12 months or less, or if the Term is more than 12 months, the sum of £500,000 for each year or part year of the Term.
“Financial Services Regulations” means all applicable financial services regulations and rules of the FCA, including without limitation, the FCA Handbook Mortgage Conduct of Business, the FCA Handbook New Conduct of Business, Insurance: New Conduct of Business sourcebooks, Consumer Credit Sourcebook and the Consumer Credit Act Advertising Regulations, where appropriate and as amended;
“Force Majeure” means any event outside the reasonable control of either party affecting its ability to perform any of its obligations under this Agreement including without limitation: fire; flood; lightning; war; revolution; terrorism; riot; strike; lock-out or other industrial action; failure of supplies of power, fuel, transport, equipment, raw materials or other goods or services;
“FSP” means a financial services product or service;
“Hosted Solution” means the web form as set out on the Affiliate Control Panel as amended from time to time by Simply Online Media and hosted by Simply Online Media and displayed on the Affiliate Website;
“Intellectual Property Rights” means any patent, copyright, database right, moral right, design right, registered design, trade mark, service mark, domain name, metatag, know-how, model, unregistered design (and any application for any such right) or other intellectual property right anywhere in the world;
“Invalid Lead” has the meaning given to it in the Invalid Lead Policy;
“Invalid Lead Policy” means the policy on invalid leads contained in the Affiliate Control Panel as may be amended from time to time by Simply Online Media on notice to the Affiliate;
“Invalid Lead Ratio” means the ratio of Invalid Leads to Success Leads;
“Lead Category” means the categorisation of an FSP and Customer, defined by Simply Online Media in its absolute discretion, as set out in Schedule 3 to this Agreement and contained in the Affiliate Control Panel as may be amended from time to time by Simply Online Media on notice to the Affiliate;
“Lead Class” means a class of Lead Categories, as set out in Schedule 3 to this Agreement and contained in the Affiliate Control Panel as may be amended from time to time by Simply Online Media on notice to the Affiliate;
“Prospect” means a Customer Lead as defined by Clause 5.1;
‘’Professional Leads Category’’ means a mortgage or life cover lead where the customer has indicated that they fall into one of several professions identified on the enquiry form. Where the customer does not complete this section on the enquiry form or selects the „Other‟ option rather than a specified profession, the customer will be classed in the appropriate product category.
“Purpose” means the purpose of Simply Online Media submitting the Customer Data received from the Affiliate to Buyers to provide FSPs to Customers and the purpose of Simply Online Media and its partners marketing Simply Online Media services and/or third party services directly to Customers;
"Raw Data" means Customer Data provided by a Raw Data Provider, which indicates a higher propensity to require one or more of the specific services provided by Simply Online Media or Buyers, which will include contact details and permissions for Simply Online Media or Buyers to Call and Email the Customer and may include other Customer Data including employment status and media consumption;
"Raw Data Provider" means a company providing data that has not discussed the features and benefits of one or more of the specific services provided by any Buyer with the Customer;
“Registration” means the process by which the Affiliate registers on the Simply Online Media Website and accepts the terms and conditions of this Agreement on the registration page of the Simply Online Media Website;
“Resource Code” means the resource code provided on the Affiliate Control Panel for use by the Affiliate in creating an Approved Web Form;
"Screen" means to screen data against the Telephone Preference Service (TPS), a central opt-out register established under regulation 26 of the ePrivacy Regulations of telephone numbers of subscribers that do not wish to receive marketing telephone calls;
"Security Policy" means Simply Online Media's security policy as provided by Simply Online Media to the Affiliate from time to time.
“Simply Online Media Website” means the website at the URL www.simplyonlinemedia.com (or such other URL as Simply Online Media may notify the Affiliate from time to time);
“Simply Online Media Affiliate Programme” means the system by which a website may supply leads to the Simply Online Media Website;
“Success Lead” means a Customer Lead as defined by Clause 5.2;
"Survey Data" means Customer Data provided by a Survey Data Provider which contains features of the Individual which indicate a higher propensity to require one or more of the specific services provided by Simply Online Media or Buyers; these details are volunteered by the Individual during the market research call; the Individual Data may include permissions from the Customer to receive further information and/or Calls from Simply Online Media or Buyers;
"Survey Data Provider" means a market research company which uses telephone calls, online surveys and/or questionnaires to collect Individual Data;
‘’Test Lead’’ is a lead that has been created as a way of verifying that the lead process is correctly working and is not intended to be a valid lead;
"Transfer" means the transfer of Customer Data by the Affiliate to Simply Online Media.
"Third Party Terms" means terms and conditions of a third party which apply to Simply Online Media's or Buyer's use of the Data.
‘’User’’ may be the Buyer or other such person acting on behalf of the Buyer under the terms of this Agreement.
“Web Service” means the optional service allowing an Affiliate to design its own web form or a web form derived from the Resource Code, both to comply with the Web Service Policy;
“Web Service Policy” means the policy on data capture methods as set out in Schedule 2 to this Agreement and contained in the Affiliate Control Panel as may be amended from time to time by Simply Online Media on notice to the Affiliate.
1.2 The headings contained in this Agreement are for convenience of reference only and shall not affect its interpretation.
1.3 References to persons include an individual, company, corporation, firm or partnership.
1.4 Words indicating the singular shall include the plural and vice versa. Words indicating a gender shall include each gender.
1.5 The words and phrases “including” and “in particular” shall be without limitation to the generality of any preceding words and any preceding words shall not be construed as being limited to a particular class where a wider interpretation of those words and phrases is possible.
1.6 All sums payable hereunder are inclusive of VAT or any other applicable tax or duty payable upon such sums.
1.7 A reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
2.1 This Agreement shall come into force on Registration and shall continue unless and until terminated under the provisions of Clause 10.
3. Affiliate’s Obligations
3.1 The Affiliate undertakes:
(a) to use an Approved Web Form for the generation of Customer Leads and where the Affiliate uses the Web Service, to comply with the requirements of the Web Service Policy;
(b) (to include, within thirty (30) calendar days from Registration and for the duration of this Agreement, the Approved Web Form on the Affiliate Website;
(c) to arrange for the Approved Web Form to provide the captured Customer Data in a format acceptable to Simply Online Media (as specified by Simply Online Media from time to time);
(d) to obtain the consent of all Customers entering their Personal Data into the Approved Web Form, in a timely and reasonable manner before the Customers' Customer Data is submitted to Simply Online Media, such that the Affiliate ensures that:
(i) Simply Online Media is a data controller in respect of the Personal Data; and
(ii) Simply Online Media can use the Personal Data for the Purpose,
(e) use personnel who are suitably skilled and experienced to perform tasks assigned to them, and in sufficient number to ensure that the Affiliates obligations are fulfilled in accordance with this Contract;
(f) obtain and at all times maintain all necessary licences and consents, and comply with all Applicable Law;
(g) ensure its collection or other processing of the Customer Data will be in full compliance with Data Protection Legislation and in particular with the Information Commissioner's guidance on direct marketing, which as at 15 December 2014 is version 1.1 dated 23 October 2014 and will co-operate with any reasonable requests of Simply Online Media to demonstrate the reliability of the Customer Data and to give Simply Online Media reasonable control and audit powers;
(h) to supply Customer Leads, including all Customer Leads generated directly or indirectly through the Data Feed, exclusively to Simply Online Media and not to use such Customer Leads for any other purposes, or to supply such Customer Leads to a third party;
(i) to provide Simply Online Media with five (5) working days notice, through the Affiliate Control Panel, of any web site other than the Affiliate Website on which an Approved Web Form will be displayed;
(j) not to delay the Customer Leads being delivered to Simply Online Media or send the Customer Leads together in batches;
(k) not to provide any discount, rebate or gift as an incentive for Customers to complete the Approved Web Form;
(l) not to undertake any act or omission which would result in Simply Online Media being in breach of any Applicable Law;
(m) to comply with the Acceptable Use Policy;
(n) not to market to any Customer;
(o) not to include on the Affiliate Website any content which is illegal, defamatory, obscene, pornographic, racist, or derogatory; and
(p) (p) not to undertake any act or omission which causes damage to Simply Online Media's brand or reputation.
3.2 In clauses 3.2 to 3.7 inclusive the following definitions apply:
if the Affiliate is obliged under the Consumer Credit Act 1974:
(a) it holds (and shall hold for the Term) an up to date, valid FCA interim permission or authorisation and a data protection licence with the appropriate permissions, the details of which will be supplied to Simply Online Media and any changes to the licence details will be provided immediately to Simply Online Media during the Term, and
(b) it is aware of the provisions of section 154 of the Consumer Credit Act 1974, in relation to cold calling and canvassing and will comply with such provisions in collecting Customer Data under this Contract.
Compliant Register Entry
the entry in the Information Commissioner's register of Data Controllers includes and shall include for the Term, all purposes relevant to the provision of the Customer Data, each of which purpose is accurate, complete and up-to-date, including the trading and sharing in personal information and, if applicable to the Supplier's Processing under this Contract, information and databank administration.
Consent to Call
the Customer's Consent for Simply Online Media and Buyers to Call the Customer.
Consent to Disclose
the Customer's Consent for the Affiliate to disclose the Customer Data to Simply Online Media.
Consent to Email
the Customer's Consent for Simply Online Media and the Buyers to Email the Customer.
Consent to Resell
the Customer's Consent for Simply Online Media to resell the Customer Data to Buyers.
Consent to Sell
the Customer's Consent for the sale of the Customer Data to third parties, including to Brokers for resale by those Brokers.
to identify Buyers to Customers in the following way: the Fair Processing Notice in the script used during telephone calls with Customers to collect Customer Data and Consents under this condition identifies Buyers as FCA authorised persons, firms or advisers (or appointed representatives of such authorised persons) in relation to financial services products and services.
Initial Opt-In Consent
either (a) Consent to contact each Customer for the purpose of Customer Data collection,
or (b) the Customer's telephone number has been Screened within 28 days prior to use,
in each case prior to making a call to the Customer.
Lead Generator Warranties
Name the Customer
to name Simply Online Media in the following way: the Fair Processing Notice in the script used during telephone calls with Customers to collect Customer Data and Consents under this condition identifies Simply Online Media by name.
to request Consent and record the Customer's response in writing, which shall record a non-response to the request as a refusal.
3.3 The Affiliate warrants to Simply Online Media that:
(a) it has not used, and will not use, misleading information, advice or actions to obtain Customer Data;
(b) its advice, if any, any content of its website and advertising and any of its commercial practices comply with all Applicable Law;
(c) its Processing of the Customer Data, including its collection, storage and disclosure of Customer Data to Simply Online Media complies in all respects with Data Protection Legislation;
(d) it has a Compliant Register Entry;
(e) it is CC Compliant;
(f) each Transfer shall be secure and shall comply with the Security Policy;
(g) it shall only transfer Customer Data to Simply Online Media where Consent to Disclose has been given;
(h) it shall, where possible in practice, inform Simply Online Media whether the Customer has given or refused (or failed to give) Consent to Call and Consent to Email;
(i) the Affiliate's provision of the Customer Data and Simply Online Media's and/or Buyer's use of the Customer Data shall not infringe any third party Intellectual Property Rights; and
(j) each supplier, if any, from which it received relevant Customer Data obtained that data in a manner that was fully compliant with the Act and all Applicable Law and obtained all requisite consents from the Customer to allow that data to be provided to the Affiliate or the relevant third party in compliance with the Act and all Applicable Law.
(a) it has Initial Opt-In Consent;
(b) it shall Name the Customer and Identify Buyers;
(e) it shall Seek Consent to Resell; and
(a) it has Initial Opt-In Consent;
(b) it shall Name the Customer and Identify Buyers;
(c) it shall Seek Consent to Disclose;
(d) it may Seek Consent to Call and Consent to Email;
(e) it shall Seek Consent to Resell; and
(f) it may Seek Consent to Sell.
3.6 If the Affiliate is providing Customer Data that Simply Online Media has identified may be used for claims management activity or where it is clear from the nature of the Affiliate's business that such Customer Data is intended to be so used, the Affiliate further warrants that:
3.6.1 it is authorised by the Claims Management Regulator for the purposes of providing such Customer Data; and
3.6.2 the Customer Data has been collected and created in compliance with all applicable CMR Rules.
3.7 The Affiliate acknowledges, notwithstanding the requirements of Clause 3.1 for the Affiliate to comply with all Financial Services Regulations, that Simply Online Media does not accept any responsibility for ensuring that the Affiliate meets any regulatory requirements for the Affiliate Website or generation of Customer Leads.
3.8 The Affiliate acknowledges and hereby consents that any telephone call to Simply Online Media may be recorded for training purposes and for the purpose of recording the details of any transaction conducted or information supplied on such call.
4.1 Both parties each confirm that they will use reasonable skill and care in the performance of their obligations.
4.2 The Affiliate warrants that all Customer Leads supplied to Simply Online Media are supplied on an exclusive basis and that the Affiliate shall not use a Customer Lead for its own purposes or supply a Customer Lead to a third party.
4.3 The Affiliate warrants to Simply Online Media that:
(a) it has all consents, licences and regulatory authority necessary or desirable for it to conduct its business and to provide Customer Leads to Simply Online Media (including but not limited to authorisation by The Financial Conduct Authority); and
(b) it has conducted and will continue to conduct its business in accordance with all Applicable Law.
4.4 The Affiliate shall indemnify and keep indemnified Simply Online Media against all actions, proceedings, losses, claims, damages, liabilities, costs, charges and expenses which Simply Online Media or any member of the Group may suffer or incur in relation to:
(a) a breach by the Affiliate of the warranties in Clause 3 or Clause 5.3; and/or
(b) a breach of Applicable Law relating to the provision by the Affiliate of a Customer Lead.
4.5 The Affiliate warrants that it shall not conduct any activity that shall have an adverse impact on the reputation of Simply Online Media or its customers, employees, agents or contractors or of Buyers.
4.6 The Affiliate shall not, for the duration of this Agreement, and for a period of six (6) months after termination of this Agreement, solicit or attempt to solicit, entice away or attempt to entice away the custom of (or enter into a referral relationship with) any Buyer or any other person the details of whom were obtained from Simply Online Media under or in connection with this Agreement.
5.1 If Simply Online Media receives a Customer Lead which it then forwards to its Buyers, then that Customer Lead will constitute a “Prospect” for the purposes of this Agreement.
5.2 If a Buyer pays a Buyer Payment to Simply Online Media in respect of a Prospect, then that Prospect will constitute a “Success Lead” for the purposes of this Agreement.
5.3 Simply Online Media will process the Affiliate Payment on a weekly basis following a three week cycle:-
(a) Week One: Customer Leads are generated by the Affiliate and provided to the Buyer
(b) Week Two: any Customer Leads deemed to be Invalid by the Buyer are submitted to Simply Online Media for assessment according to the Invalid Policy
(c) Week Three: Simply Online Media's assessment is completed to determine the entirety of the Success Leads from Week One. An invoice will be generated by Simply Online Media on behalf of the Affiliate that will be available to the Affiliate's online control panel. Simply Online Media will pay the invoice on the Friday of each week to the bank account details supplied by the Affiliate.
5.4 Simply Online Media will apply an administration charge of twenty pounds (£20) for each payment required to be made:
(a) to a Non-UK bank account; or
(b) via Paypal.
5.5 The Affiliate Payment may be amended from time to time by Simply Online Media provided that Simply Online Media provides the Affiliate with at least seven (7) calendar days notice of any change to the Affiliate Payment. Such changes will not apply retrospectively.
5.6 In the event that a Buyer Payment to Simply Online Media is refunded to the Buyer by Simply Online Media or cancelled by a Buyer (including without limitation in the event of a Success Lead being an Invalid Lead according to the Invalid Lead Policy), then Simply Online Media will notify the Affiliate of this, and the Affiliate Payment to the Affiliate in respect of that Success Lead will immediately become repayable by the Affiliate to Simply Online Media if paid, or void if remaining to be paid, and Simply Online Media shall be entitled to set off any outstanding amounts against future invoices.
5.7 In the event that the Affiliate is found to be deliberately misleading Simply Online Media, or misusing the Simply Online Media Website or Invalid Lead Policy then, according to the Invalid Lead Policy, the Affiliate shall be liable to pay the applicable administrative charges set out therein, each charge being a genuine pre-estimate of the loss suffered by Simply Online Media.
6. Intellectual Property Rights
6.1 Other than as strictly necessary for the purpose of Clause 3 and as set out in clause 6.3, the Affiliate does not have any right to use any of Simply Online Media's Intellectual Property Rights (including without limitation Simply Online Media's copyright and trade marks (whether registered or unregistered), the Hosted Solution and Resource Code) or any materials supplied by Simply Online Media without Simply Online Media's prior written approval.
6.2 All Intellectual Property Rights in the Customer Data submitted by the Affiliate to Simply Online Media under this Agreement shall vest in Simply Online Media and the Affiliate hereby assigns to Simply Online Media with full title guarantee free from all charges, liens, licences and other encumbrances all Intellectual Property Rights in such data together with the right to obtain remedy in respect of any infringement thereof prior to Registration and to hold the same to the Simply Online Media absolutely.
6.3 Simply Online Media grants the Affiliate a non-exclusive, non-transferable licence of the Resource Code or Hosted Solution (as necessary) for the duration of this Agreement for the sole purpose of creating and using an Approved Web Form on the Affiliate Website.
6.4 The Resource Code and Hosted Solution are used as seen by the Affiliate and Simply Online Media provides no warranties regarding its fitness for purpose or that it will achieve satisfactory results.
7. Confidentiality and data protection
7.1 Subject to Clause 7.2, all Confidential Information disclosed or obtained as a result of this Agreement shall be kept confidential by the parties and neither party shall use or disclose such Confidential Information. Where such Confidential Information is disclosed by a party to its employees, agents or sub-contractors, it shall be subject to confidentiality obligations equivalent to those set out in this Agreement. Each party shall procure that any such employee, consultant, sub-contractor or agent complies with such obligations.
7.2 The obligations of confidentiality in Clause 7.1 shall not extend to any disclosure of Confidential Information which either party can show:
(a) is necessary for the proper performance of its obligations under this Agreement;
(b) has been carried out with the prior consent of the other party;
(c) is in, or has become part of, the public domain other than as a result of a breach of the obligations of confidentiality under this Agreement; or
(d) was in its records prior to Registration (other than in contemplation of this Agreement); or
(e) was independently disclosed to it by a third party entitled to disclose the same; or
(f) is required to be disclosed under any applicable law, or by order of a court or governmental body or authority of competent jurisdiction.
7.3 Simply Online Media and the Affiliate acknowledge and agree that for the purpose of the provision of Customer Data under the Agreement, each of the Affiliate and Simply Online Media is a separate Data Controller, and that the parties are not Data Controllers jointly or in common, nor is one the other's Data Processor.
8.1 Subject to the Financial Cap, the Affiliate shall keep Simply Online Media indemnified in full against all costs, expenses, damages and losses (whether direct or indirect), including any interest, fines, legal and other professional fees and expenses awarded against or incurred or paid by Simply Online Media as a result of or in connection with:
(a) a breach by the Affiliate of any of clauses 3.2 to 3.6 inclusive and clauses 3.1(f) or (g).
(b) any claim made against Simply Online Media by a Buyer, Customer or other third party arising out of, or in connection with, the supply of the Customer Data, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of this Agreement by the Affiliate, its employees, agents or sub-contractors; and
(c) any claim brought against Simply Online Media for actual or alleged infringement of a third party's Intellectual Property Rights arising out of, or in connection with, the receipt, use or supply of the Customer Data.
8.2 For the duration of this Agreement and for a period of 3 years thereafter, the Affiliate shall maintain in force, with a reputable insurance company, such insurances as may be required, including but not limited to professional indemnity insurance and public liability insurance to cover the liabilities that may arise under or in connection with this Agreement and shall, on Simply Media's request, produce both the insurance certificates giving details of cover and the receipt for the current year's premium in respect of each insurance.
8.3 This clause 8 shall survive termination of the Contract.
9. Limitation of Liability
9.1 Nothing in this Agreement shall restrict or exclude either party's liability for death or personal injury resulting from that party's negligence. Nothing in this Agreement shall restrict or exclude either party's liability for fraud, nor for fraudulent misrepresentation, nor for any liability which may not be lawfully limited or excluded.
9.2 Neither party shall be liable in any circumstances to the other party for consequential, special or indirect losses, or the following losses whether direct or indirect: loss of profits, loss of revenue, economic loss, loss of business or contracts, loss of anticipated savings or goodwill, loss of data, (or any losses arising from a claim by a third party for any of the above losses); whether arising under contract, statute, tort (including without limitation negligence), or otherwise.
9.3 Subject to Clauses 9.1 and 9.2, Simply Online Media's only liability to the Affiliate pursuant to the Agreement is to pay the Affiliate the Affiliate Payments in accordance with the provisions of this Agreement.
9.4 The Affiliate Payment has been calculated on the basis that each party will exclude and limit its liability as set out in this Agreement.
10.1 Either party may terminate this Agreement upon thirty (30) calendar days notice to the other party.
10.2 Either party may terminate this Agreement immediately upon notice in writing to the other party in the event that the other party commits a breach of its obligations under this Agreement and:
(a) such breach is material and cannot be remedied; or
(b) such breach is material and possible to remedy and that other party fails to remedy such breach within thirty (30) calendar days of having been required in writing to remedy such breach.
10.3 Simply Online Media may terminate this Agreement immediately on notice to the Affiliate if:
(a) in its absolute discretion, it considers the Affiliate to have submitted a Customer Lead containing data that does not meet the requirements of Clauses 3 or 4;
(b) at any time, the Invalid Lead Ratio of the Customer Leads supplied by the Affiliate, measured over the preceding period of forty-five (45) calendar days, is greater than 0.20; or
(c) the Affiliate commits a breach of the Acceptable Use Policy.
10.4 Either Party may terminate this Agreement immediately upon notice in writing to the other Party (the “Defaulting Party”) in the event that the Defaulting Party shall present a petition or have a petition presented by a creditor for its winding up, or shall convene a meeting to pass a resolution for voluntary winding up, or shall enter into any liquidation (other than for the purposes of a bona fide reconstruction or amalgamation), shall call a meeting of its creditors, or shall have a receiver of all or any of its undertakings or assets appointed, or shall be deemed by virtue of the relevant statutory provisions under the applicable law to be unable to pay its debts.
11. Consequences of Termination
11.1 The termination of this Agreement shall be without prejudice to the rights and remedies of either party which may have accrued up to the date of termination.
11.2 Upon and following termination of this Agreement, the provisions of this Agreement which are intended or expressed to survive termination (including without limitation the provisions relating to confidentiality, and limitations and exclusions of liability), shall so survive.
11.3 Upon termination of this Affiliate, each party shall immediately return to the other party all of the other party's property (including without limitation Confidential Information) in its possession at the date of termination.
11.4 Upon termination of this Agreement, the Affiliate will immediately remove the Approved Web Form from the Affiliate Website, and all licences granted to the Affiliate, including without limitation the licence referred to in Clause 6.3, by Simply Online Media will immediately terminate, however, all licences granted to Simply Online Media by the Affiliate will continue.
11.5 Simply Online Media will, within thirty (30) calendar days of termination of this Agreement, pay to the Affiliate any unpaid Affiliate Payments, including any Success Leads un-invoiced by the Affiliate due to Clause 5.4, unless termination of this Agreement has occurred due to one or more breaches by the Affiliate, or pursuant to Clause 9.3.
12. Affiliate Guide
12.1 The Affiliate Guide is a guide to Affiliates that intend to supply Customer Leads using the Simply Online Media Affiliate Programme. The Affiliate Guide has been prepared for information purposes only for Simply Online Media based on the interpretation of the Financial Services Market Act 2000 and the FCA handbook for rules and guidance.
12.2 No representation is made by Simply Online Media that the Affiliate Guide is complete or comprehensive in any respect. The Affiliate Guide should not be relied upon by any third party for FCA compliance purposes or otherwise, and Simply Online Media accepts no liability or responsibility whatsoever for any loss, damage or regulatory sanction of any kind suffered by any third party which arises from any reference to, use of or purported reliance upon the content of the Affiliate Guide.
13. Force Majeure
13.1 If either party is affected by Force Majeure it shall not be in breach of this Agreement or otherwise liable to the other by reason of any delay in performance or non-performance of any of its obligations due to such event.
13.2 If such Force Majeure persists for a period of three (3) months then either party shall be entitled whilst the Force Majeure persists, to terminate this Agreement immediately upon notice to the other party.
14. Assignment and Sub-contracting
14.1 The Affiliate shall not assign, delegate, sub-contract, transfer or otherwise dispose of any of its rights or responsibilities under this Agreement without the prior written consent of Simply Online Media.
14.2 Simply Online Media shall be permitted to assign, delegate, sub-contract, transfer or otherwise dispose of any of its rights or responsibilities under this Agreement without the prior written consent of the Affiliate.
15. Contracts (Rights of Third Parties) Act 1999
15.1 The Parties to this Agreement do not intend any third party to have any benefit under this Agreement. The Parties therefore agree that no third party shall have the right to enforce any term of this Agreement.
16. No Partnership
16.1 Nothing in this Agreement shall create, or be deemed to create, a partnership or joint venture or relationship of employer and employee or principal and agent between the parties to this Agreement.
17.1 Subject to any express provisions in this Agreement, including the schedules, which provide for variation, this Agreement may be varied by Simply Online Media by notifying such changes to the Affiliate by way of email or by supplying the Affiliate with a URL containing the updated Agreement. In the event that the Affiliate disagrees with such changes the Affiliate shall be entitled to terminate this Agreement on notice without further liability to Simply Online Media. No other variation of this Agreement shall be effective unless it is in writing and is signed by an authorised representative of each party.
18.1 If at any time any part of this Agreement or a clause of this Agreement becomes void or unenforceable under any applicable law it shall be deemed to be deleted from this Agreement and the remaining provisions of this Agreement shall continue unaffected.
19. No Waiver
19.1 No provision of the Agreement shall be waived unless agreed to be waived by both parties in writing. If any provision is waived, then that waiver shall operate for that instance only and not future instances, unless agreed otherwise by both parties in writing.
20. Entire Agreement
20.1 This Agreement contains the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all other written and oral communications between the parties. The express terms, conditions and warranties of this Agreement are in lieu of all warranties, conditions, terms, representations, statements, undertakings and obligations whether express or implied by statute, common law, custom, usage or otherwise all of which are hereby excluded to the fullest extent permitted by law. The parties hereby confirm that they have not relied upon any representations, communications or other matters which have not been expressly stated in this Agreement. Notwithstanding any provision to the contrary, nothing in this Agreement limits or excludes either party‟s liability for fraudulent misrepresentations.
21.1 Unless expressly stated in this Agreement, all notices relating to this Agreement must be provided in writing, in the case of Simply Online Media, to its registered address and, in the case of the Affiliate, to the address provided on Registration, by post, courier, fax or email or (solely in the case of Simply Online Media) by way of a system notification to users of its web sites where the Affiliate is a user of such site. A notice will be deemed to be served: in respect of notices delivered by post two working days after the date of posting or by courier, on the date the notice is received by a party as indicated by the signature of the party on the courier receipt. A notice will be deemed to be served in respect of notices delivered by fax, email or system notification on the day that such notice is successfully sent (if sent before 5pm on a working day, otherwise it will be deemed served at 9.30am the next working day) provided that the sending party retains a copy of a successful transmission report or other evidence that such notice was sent.
22. Law and Jurisdiction
22.1 This Agreement and any dispute or claim arising in connection with it shall be governed by the laws of England and shall be subject to the exclusive jurisdiction of the English Courts to which the parties irrevocably submit.
Schedule 1 – Acceptable Use Policy
1. Acceptance of Acceptable Use Policy
1.1 By accessing any part of the Simply Online Media Website or using Simply Online Media systems and services, the Affiliate shall be deemed to have accepted this Acceptable Use Policy. If the Affiliate does not accept the terms of this Acceptable Use Policy, they must leave the Simply Online Media Website immediately and not use any Simply Online Media systems and services.
1.2 Where the Affiliate enters into any additional contract with Simply Online Media for Simply Online Media goods and services via the Simply Online Media Website or otherwise, this Acceptable Use Policy will form a part of such contract that the Affiliate has with Simply Online Media.
1.3 Simply Online Media advises that the Affiliate reads this Acceptable Use Policy carefully since it sets out important information regarding the Affiliate’s rights and obligations including the consequences of breaching this Acceptable Use Policy.
2. Acceptable Use
2.1 Simply Online Media requires that, in using the Simply Online Media Website and Simply Online Media systems or services, the Affiliate does not:
a) Say or do anything that would cause annoyance, inconvenience, harassment or needless anxiety to others;
b) Advertise or promote third party or the Affiliate’s own products or services by way of the distribution of 'spam' mail;
c) Use foul, defamatory, threatening, offensive, or sexually explicit language;
d) Make insulting remarks to or about other users of the Simply Online Media Website or Simply Online Media systems or services, Simply Online Media or third parties;
e) Distribute illegal, indecent or offensive material or any messages or content that may incite or encourage illegal activities including, without limitation, distributing files that contain viruses, trojans or other harmful programs or any material infringing the intellectual property rights of any person;
f) Impersonate Simply Online Media or another person;
g) Use the Simply Online Media Website, Simply Online Media systems or services to conduct any fraudulent activity;
h) Breach or otherwise fail to comply with relevant licence terms in connection with any hardware or licensed content that the Buyer may access via the Simply Online Media Website, Simply Online Media systems and services;
i) Connect any insecure computer hardware or other machines to the Simply Online Media systems which may be exploited by third parties to carry out activities that are in breach of this Acceptable Use Policy;
j) monitor or make bids by means of any automated process, computer programs or software other than that provided by Simply Online Media; or
k) Access or attempt to access the accounts of other users or to penetrate or attempt to penetrate the Simply Online Media Website or Simply Online Media's security measures.
2.2 Simply Online Media may take any or all of the following action at its discretion:
a) Remove any material that, in Simply Online Media's sole discretion may be inappropriate or that Simply Online Media may suspect to be illegal, may subject Simply Online Media to liability, damage Simply Online Media's reputation or which may violate this Acceptable Use Policy or where Simply Online Media is required to do so by law;
b) Issue the Affiliate with verbal or written warnings and take such further action as Simply Online Media deems appropriate if such warnings are not heeded;
c) Suspend or terminate the Affiliate’s access to any or all of the Simply Online Media Website or Simply Online Media systems and services without notice at any time;
d) Inform the appropriate authorities and provide them with information regarding any suspected illegal activity; or
e) Bring legal action against the Affiliate or any other user in relation to any breach by the Affiliate or such other user of this Acceptable Use Policy or any illegal or suspected illegal activity.
f) Reserve the right not to pay for leads under our invalid lead policy which have been identified as
2.3 Simply Online Media will determine what action is appropriate to be taken against a user on a case by case basis.
2.4 The Affiliate’s breach of this Acceptable Use Policy constitutes an irremediable breach of the Agreement which entitles Simply Online Media to terminate immediately under Clause 10.3(c) of the Agreement and may also give rise to termination of or further action under any other contract that the Affiliate may have with Simply Online Media that incorporates this Acceptable Use Policy.
2.5 In addition to the obligations set out in paragraph 2.1, the Affiliate agrees that in using the Simply Online Media Website, Simply Online Media services and systems, the Affiliate will at all times comply with all relevant laws and regulations including ICO requirements.
3.1 Simply Online Media reserves the right to amend this policy at any time.
3.2 Any revisions to this policy will be published on the Simply Online Media Website and all changes will be notified through the Affiliate Control Panel.
3.3 Continued use of the Simply Online Media Website after changes to this policy are posted on the Simply Online Media Website will constitute acceptance of any new or additional terms of the policy that result from those changes.
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