AFFILIATE AGREEMENT:
This Agreement is made between Smile 4 You Ltd (registered as a Smile 4 You Limited under Registration No. 6260274) whose registered address is at Unit 19 The Enterprise Village, Prince Albert Gardens, Grimsby, DN31 3AT, (“Smile 4 You”) and you, the Affiliate, and sets out the terms and conditions under which Smile 4 You shall allow you to establish a link to the Smile 4 You websites and act as an Affiliate in relation to the Merchants (as defined below).
This is a Legal Agreement between you, the Affiliate, and Smile 4 You Ltd. By registering to become an affiliate of Smile 4 You you are acknowledging that you have read and understood these terms and you agree to be bound by them. If you do not wish to be bound by them please do not register for the program and you will not then have the opportunity to become a member of the Smile 4 You Affiliate program.
1. How the Terms in this Agreement should be defined.
“Affiliate Website”
means the site operated by the Affiliate, notified to Smile 4 You and linked to the Smile 4 You Website in accordance with the terms of this Agreement via the Link.
“Affiliate’s Resource Area”
means that part of Smile 4 You website accessible by the Affiliate upon approval given by Smile 4 You pursuant to clause 3;
“Advertising Material”
means the Banners and Merchant Information which Smile 4 You identifies on the Affiliate’s Resource Area of the Smile 4 You Website are to be used for the Promotion Activities such material to be used in accordance with the Use Policy;
“Banners”
means banner and/or pop up adverts promoting the Merchants on the Affiliate Website;
“ChargeBack”
means a payment dispute initiated by the cardholder with their credit card issuing bank. The amount of the disputed transaction is withdrawn from the merchant’s bank account. For this agreement the term ChargeBack also refers to a refund obtained by the customer within 7 days due to the Distant Selling Regulations.
“Commencement Date”
means the date the Affiliate is approved by Smile 4 You as an Affiliate in accordance with clause 3;
“Commission”
means the commission payable to the Affiliate in accordance with clause 7 on Transactions completed as a direct result of visits to the Smile 4 You Website via the Link, at the rates set out on Smile 4 You Website ;
“Commission Levels”
means the level at which Commission will be payable to the Affiliate by Smile 4 You from time to time the initial level being provided to the Affiliate prior to the conclusion of this Agreement [via the Affiliate’s Resource Area];
“Confidential Information”
means any and all information acquired by either party about the other party’s business and/or given by one party to the other party and/or generated by either party from the other party’s Confidential Information;
“DPA”
means Data Protection Act 1998;
“Force Majeure”
means any occurrence which hinders, delays or prevents a party performing any of its obligations under this Agreement and which is beyond the control of, and without the fault or negligence of such party and which by the exercise of reasonable diligence it is unable to prevent or provide against, including but not limited to war, act of God , fires, strikes, lock-outs, insurrection or riots, embargoes, unavailability of raw materials, wrecks or delays in transportation, requirements or regulations of any governmental authority;
“Intellectual Property Rights”
means all intellectual and industrial property rights including know how, registered trade marks and service marks, registered designs, patents, applications for and rights to apply for any of the foregoing, unregistered design rights, unregistered trade marks and service marks, rights to prevent passing off or unfair competition and copyright, database rights, domain names and any other rights in any invention, discovery, process, database, computer program or software, method or information in each case in the United Kingdom and all other countries in the world and together with all renewals and extensions;”
“Smile 4 You Brand”
means the name, trade marks, logos and/or other means of branding used by Smile 4 You in respect of the Merchants from time to time including but not limited to the name “Smile 4 You” ;
“Smile 4 You Website”
means such websites owned and operated by Smile 4 You which are offered as within Smile 4 You affiliate program;
“Liability”
means actions, awards, costs, claims, damages, losses (including without limitation any direct or indirect consequential losses), demands, expenses, fines, loss of profits, loss of reputation, judgments, penalties and proceedings and any other losses and/or liabilities;
“Licensed Rights”
means such of the Smile 4 You Brand as is offered on Smile 4 You Website for the Affiliate to use under the terms of this Agreement, the Ingredient Trade Marks and the Intellectual Property Rights in the Advertising Material;
“Link”
means a hypertext link created between the Affiliate Website and Smile 4 You Website subject to the terms of this Agreement being a unique hypertext link which identifies the Affiliate and is made available to the Affiliate by Smile 4 You upon the grant of MoreNiche’s approval under clause 3;
“Personal Data”
means data relating to a living individual who can be identified from the data or from information which is in, or is likely to come into, the possession of either party.
“Merchants”
means those products/services supplied by Smile 4 You and listed on the Smile 4 You Product to Promote page as may be varied by agreement between the parties from time to time in accordance with the terms of this Agreement;
“Product Information”
means information in relation to the Merchants which Smile 4 You has identified and made downloadable to the Affiliate on the Affiliate’s Resource Area of Smile 4 You Website to be used by the Affiliate for the Promotion Activities from time to time in writing;
“Promotion Activities”
means the activation of the Link between the Affiliate Website and the Smile 4 You Website and/or the use of Banners and/or Advertising Material on the Affiliate Website by the Affiliate and any other activity authorised in writing bySmile 4 You from time to time to promote the Products and/or to drive web traffic from the Affiliate Website to the Smile 4 You Website via the Link.
“Transaction”
means a sale of a Merchant from the Smile 4 You Website to a customer arising as a direct result of such customer visiting the Smile 4 You Website via the Link from the Affiliate Website ;
“Use Policy”
means the policy for the establishment of the Link and the use of the Licensed Rights to be notified to the Affiliate from time-to-time an example of which is set out in Schedule 2 to this Agreement.
2. How this Agreement Should be Interpreted
2.1 Reference to any gender shall include all genders. Words indicating a person shall include bodies of persons whether corporate or incorporate
2.2 Reference to any statute or statutory provision includes a reference to the same as from time to time amended, extended, re-enacted or consolidated and all subordinate legislation made pursuant to it and including any other similar legislation in any other jurisdiction provided that either party’s liability is not increased and/or its rights under this Agreement materially altered by such amendment, extension, re-enactment or consolidation.
2.3 Any reference in this Agreement to a Clause or Schedule is to a clause or schedule of this Agreement and any reference to a paragraph is to the paragraph of the Schedule in which the reference is made unless otherwise stated.
2.4 The headings of this Agreement shall not affect its construction or interpretation.
3. Becoming a Smile 4 You Affiliate
3.1 You may apply to be an Affiliate by accessing these terms at https://smile4you.co.uk/affiliate-portal and completing the online form.
3.2 On application the Affiliate must supply to Smile 4 You the following information:
3.2.1 The Affiliate’s full name and date of birth and Company name (if relevant)
3.2.2 The Affiliate’s full valid postal address and telephone number;
3.2.3 The Affiliate’s valid email address;
If and when the Affiliate is accepted into the Smile 4 You Affiliate Program it is the Affiliate’s sole responsibility to ensure that Smile 4 You is kept informed of any changes to the information provided by the Affiliate at all times during this Agreement.
3.3 Approval and acceptance of an Affiliate is at the sole discretion of Smile 4 You and Smile 4 You reserves the right to refuse applications. The Affiliate hereby consents to Smile 4 You using the Affiliate’s details and Personal Details for the purposes of carrying out any checks that it considers to be necessary to confirm the identity of the Affiliate, its suitability for (and the suitability of the Affiliate Website) for the Smile 4 You Affiliate Program and any other matter which is connected to the Affiliate’s application and, where subsequently accepted by Smile 4 You, is connected to its activities and role as a Smile 4 You Affiliate.
3.4 By submitting the application form s://smile4you.co.uk/affiliate-portal the Affiliate agrees to the terms of this Agreement. Smile 4 You shall consider the Affiliate’s application. The Affiliate at time of registration will choose and register with Smile 4 You the Affiliate’s login and password which will enable the Affiliate to gain access to that resource area of Smile 4 You Website that is dedicated to the Affiliate (defined as “the Affiliate’s Resource Area”). On the Affiliate’s registration and access to the Resource Area the Affiliate will be invited to read the Commission Levels set out therein. The Affiliate must notify Smile 4 You immediately after registration if it does not agree to the Commission Levels specified otherwise the Affiliate will be deemed to have accepted the terms of this Agreement including the Commission Levels and the Agreement shall be binding upon the Affiliate and Smile 4 You.
3.5 The Affiliate hereby warrants that they has all rights, permissions and competencies to enter into this Agreement.
4. The Permission We Allow You
4.1 Smile 4 You grants the Affiliate a non-exclusive non-transferable, royalty free licence to use the Licensed Rights and the Link and to promote itself under and by reference to the designation “Smile 4 You Affiliate” subject to and in accordance with the terms of this Agreement and the Use Policy, for the sole purpose of carrying out the Promotion Activities in relation to the Merchants via the Affiliate Website.
5. The Things You Must Do
5.1 Any and all proposed marketing activities, materials, literature and/or website content comprising, using or referring to the Licensed Rights must be approved in writing by an authorised representative of Smile 4 You prior to its use. The Affiliate shall notify Smile 4 You of any changes to the circumstances giving rise to such approval.
5.2 All data supplied via the Link either to or from the Affiliate and/or the Affiliate Website and all Intellectual Property Rights in the same, and any and all goodwill generated by the Affiliate’s use of the Licensed Rights shall accrue to and belong to Smile 4 You.
5.3 The link which Smile 4 You will provide for the Affiliate from the Smile 4 You Website when approved by Smile 4 You identifies the linked site as the Affiliate Website. It is the Affiliate’s sole responsibility to ensure that this unique link is used and maintained as otherwise Commission that might have been earned by the Affiliate may not be tracked, recorded and/or paid. Smile 4 You is not liable for any Commission lost, or unearned or unpaid resulting from the failure to use or maintain the unique link.
5.4 The Affiliate must update the content of the Affiliate Website as and when the Advertising Material and/or Use Policy is updated to maintain consistency and accuracy between the Affiliate Website and the Smile 4 You Website. All maintenance and updating of the Affiliate Website is the sole responsibility of the Affiliate.
5.5 The Affiliate agrees that Smile 4 You are entitled to monitor the Affiliate Website to make sure the Link to the Smile 4 You Website and/or the Affiliate Website and/or the Affiliate’s participation in the Smile 4 You Affiliate Program are appropriate. If in the sole discretion of Smile 4 You, Smile 4 You considers the Link and/or the Affiliate Website or the Affiliate’s participation in the program is not appropriate Smile 4 You may either notify the Affiliate of the changes it requires the Affiliate to make or terminate this Agreement in accordance with clause 8.
5.6 The Affiliate undertakes to comply with all requirements under the DPA or similar or subsequently relating to any Personal Data which is processed, collected, maintained, deleted or transferred to Smile 4 You or any third party by the Affiliate concerning customers, potential customers or any other aspect of the Affiliate’s role and obligations under this Agreement.
6. The Things You Must Not Do
6.1 The Affiliate undertakes not to use any of the content of any websites owned and/or operated by Smile 4 You without Smile 4 You prior written consent and the Affiliate shall not frame any pages or parts of any pages of the Smile 4 You Website or any other website nor will the Affiliate create the impression that the Affiliate Website is Smile 4 You Website or any part of Smile 4 You Website.
6.2 The Affiliate warrants and represents to Smile 4 You that:
6.2.1 the Promotion Activities and the Affiliate Website shall not contain or use:
6.2.1.1 any content which is and/or any links to any website which contains, libellous, defamatory, obscene, abusive, illegal content or content which is, invasive of any privacy and/or publicity rights, infringing of any third party Intellectual Property Rights, criminal, in violation of any law or which is in the opinion of Smile 4 You otherwise objectionable;
6.2.1.2 any information or claims about the Products other than the Product Information;
6.2.1.3 any material that would mislead or cause confusion about the Products or the relationship between the Affiliate and Smile 4 You;
6.2.1.4 any domain name comprising any Smile 4 You Product name, trade mark or similar either in whole or in part unless specifically approved and authorised in writing by Smile 4 You.
6.2.1.5 any activities which involve generating or utilising traffic sources from any form of Spyware, Adware, or Parasiteware applications or involve the use of the practice known as cookie stuffing or similar or which in effect cause a Transaction to result from any illegitimate or unauthorised means. For the avoidance of doubt Smile 4 You considers and the Affiliate agrees that the use of any such unauthorised means is a fundamental breach of the terms of this agreement incapable of remedy and Smile 4 You shall be entitled to terminate this Agreement in accordance with clause 8.3.1.
6.3 The Affiliate shall not and shall not authorise any third party to use the Smile 4 You Brand and/or the Merchant names or any similar names or misspelling of such names including in any written copy of adverts or as domain names or as keywords or key phrases on any pay-per-click search engines or as a meta-tag unless and to the extent expressly permitted by Smile 4 You. This includes using the trademark in the destination URL or advert copy;
6.4 The Affiliate shall not engage in or facilitate any Promotion Activities which would constitute unsolicited emailing or advertising (even if this complies with any law relating to unsolicited e-mails or adverts) or use any technology which has any virus including but not limited to any Trojan horse, worm, logic bomb, time bomb, back door, trap door, keys or other harmful components and the Affiliate shall not use Personal Data for the purposes of Promotion Activities or any activity that would fail to comply with the DPA and/or all relevant data protection legislation in any relevant jurisdiction;
6.5 The Affiliate shall not promote the Merchants by using any incentives, discounts or bonuses or use of any newsgroup, message boards, chat rooms, instant messaging guest books, public forums, electronic newsletters or other web-based means except as approved in the Use Policy;
6.6 In accordance with clause 6.1.2.5 above the Affiliate shall not create or attempt to create a Transaction by any other means than that permitted in this Agreement or the Use Policy. The Affiliate shall not attempt to use any device, program, code or other technology which is intended to create a Transaction which is not in good faith. All Transactions shall be made by Smile 4 You and subject to Smile 4 You’s terms of sale.
6.7 The Affiliate agrees not to make any representations and/or give any warranties and/or guarantees relating to the Products and/or their efficacy other than those given by Smile 4 You in respect of the Products from time to time and/or as otherwise approved by Smile 4 You in writing.
6.8 The Affiliate agrees not to encourage or facilitate any dishonest or illegitimate practice amongst its customers including but not limited to the claiming of refunds for Products of a satisfactory quality (resulting in a satisfactory product being obtained by a customer for free) which has as its objective an increase the number of Transactions and accordingly the value of Commission the Affiliate earns.
6.9 The affilaite agrees not to ping Smile 4 You’s or Merchant servers or undertake any activity that may be considered “cookie stuffing”.
6.10 The Affiliate agrees not to purchase Products under its own name or any other by its Link or otherwise with the purpose of re-sale of the Merchants direct to its customers unless specifically approved and authorised in writing by Smile 4 You. The Affiliate agrees not to undertake any activity which would amount to the re-sale of the Products. If the Affiliate purchases Products then any affiliate commission will be revoked, as will all bonuses due.
7. The Earnings You Can Make
7.1 Smile 4 You shall pay the Commission in relation to all validated Transactions at the Commission Levels specified in the Affiliate’s Resource Area and Smile 4 You reserves the right and Affiliate agrees that Smile 4 You shall be entitled to vary such Commission Levels in accordance with clause 7.2 at any time.
7.2 Smile 4 You shall vary the Commission Levels at any time under this Agreement to reflect increases in the costs of applicable materials, labour, other overheads, fluctuations in taxes and duties currency and exchange rates and any other relevant and applicable costs suffered by Smile 4 You from time to time.
7.3 Payment of the Commission shall be made twice each calendar month subject to the Affiliate having duly accrued the agreed minimum payout in Commission and shall amount to the total Commission for the previous month less all taxes which Smile 4 You may be required in law to withhold or deduct and/or any other deductions permitted pursuant to this Agreement. Any amounts under the agreed minimum payout threshold shall be rolled on to the next payment period. Payment will commence the month after the agreed minimum payout is reached.
Example: Join date, 1st of January, between the 1st of January and the 15th of January $234 in commission was earned. This will be paid on the last working day in February. Subsequent periods are paid in arrears.
Payout are due to be sent out on the 15th and the last workingday of each month.
7.5 If following a Transaction any form of ChargeBack is made to Smile 4 You by or on behalf of any customer, third party processor, credit card company or banking institution no Commission is payable in relation to such Transaction and if Smile 4 You has already paid the Affiliate Commission on such Transaction Smile 4 You may deduct an amount equal to such Commission from the next payment of Commission due to the Affiliate or where no further Commission is due, Smile 4 You shall raise an invoice for such amount and this shall be paid by the Affiliate to Smile 4 You within 30 days of the invoice date.
7.6 No Commission shall be payable to the Affiliate for any customers or transactions secured otherwise than in accordance with the terms of this Agreement and /or for any customers or transactions which are not genuine or which involve use of fraudulent means including but not limited to any of those methods set out at clause 6 above and if Commission has been paid to the Affiliate before Smile 4 You becomes aware of circumstances giving rise to this clause, the provisions of clause 7.5 shall apply to enable Smile 4 You’s recovery of all Commission paid to the Affiliate for customers or transactions referred to in this clause.
7.7 No Commission shall be payable to the Affiliate for any customers or transactions which occur by visits made to the Smile 4 You Website by a link which is not the Link and/or by visits made to the Smile 4 You Website otherwise than via the Link even if those customers have followed the Link previously unless they followed the Link within the requisite number of months prior to the transaction as notified to the Affiliate on Smile 4 You Website [Affiliate’s Resource Area].
7.8 Reissuing Smile 4 You payments that were lost due to Affiliate are subject to extra charges. No payments shall be reissued to Affiliate if payment is claimed after 6 months from date it was issued.
7.9 Smile 4 You can withhold Commision if they believe the Affiliate may be creating transactions which are not genuine or involved in fraudulent means including but not limited to those methods set out at clause 6 above.
7.10 Smile 4 You will enforce the right to deduct any unclaimed affiliate commissions should they become inactive, an inactive affiliate is somebody who has not generated a single validated Transaction within a twelve month period and who has a balance of less than the agreed minimum payout.
8. How this Agreement will End
8.1 This Agreement shall commence on the Commencement Date and shall continue unless and until the Agreement is terminated in accordance with this Agreement.
8.2 Both Parties may terminate this Agreement [on 14 days] notice to the other Party.
8.3 Smile 4 You may immediately terminate this Agreement by written notice if the Affiliate
8.3.1 breaches the terms of this Agreement (and if remediable the breach has not been remedied within 14 days of receiving notice requiring it to be remedied). For the purposes of this Agreement any use of the Licensed Rights other than in accordance with this Agreement any breach of clause 5 and any breach of clause 6.2.1shall be breaches which are not capable of remedy and shall entitle Smile 4 You to terminate this Agreement with immediate effect.
8.3.2 breaches any one or more terms of this Agreement;
8.3.3 ceases or threatens to cease to carry on business; and/or
8.3.4 is declared or becomes insolvent or bankrupt, has a moratorium declared in respect of any of its indebtedness, enters into administration, receivership, administrative receivership or liquidation or threatens to do any of these things, takes or suffers any similar action in any jurisdiction or any step is taken (including, without limitation, the making of an application or the giving of any notice) by it or by any other person in respect of any of these circumstances;
8.4 Upon termination of this Agreement for any reason Smile 4 You shall de-activate the Link and the Affiliate will immediately:
8.4.1 cease carrying out all Promotion Activities;
8.4.2 cease to describe itself or promote itself under or by reference to the designation “Smile 4 You Affiliate” and/or as an Affiliate of Smile 4 You;
8.4.3 cease use of the Licensed Rights and Advertising Materials;
8.4.4 remove all Advertising Material and all material referring to Smile 4 You, the Smile 4 You Website the Smile 4 You Brand, the Licensed Rights and/or the Products from the Affiliate Website;
8.4.5 deliver up to Smile 4 You or if Smile 4 You prefers, permanently erase or destroy as appropriate, all promotional materials and all tangible or other records or storage systems, documents, material, and/or other media including source codes containing or which comprises information all or part of which relates to the Intellectual Property Rights of Smile 4 You which may be in the Affiliates’ possession, power or control.
8.5 When this Agreement ends any Commission due to the Affiliate at the time of termination will be paid at the end of the month following termination subject to any set-off, counterclaim or deduction Smile 4 You may have and any amount due to Smile 4 You from the Affiliate shall be paid within 30 days of termination of this Agreement.
8.6 Termination of this Agreement shall not affect any rights of the parties accrued up to the date of termination and clauses 6.1, 6.3, 7.4, 7.58.4, 9, 11, 12, 13 and 14 shall survive expiry or termination of this Agreement.
Without prejudice to any other right or remedy Smile 4 You may have, the Affiliate agrees to indemnify and keep indemnified Smile 4 You against any and all Liabilities and increased administration and professional and legal costs on a full indemnity basis suffered by Smile 4 You (without set-off, counterclaim and/or reduction) and arising out of or in connection with:
9.1 Without prejudice to any other right or remedy Smile 4 You may have, the Affiliate agrees to indemnify and keep indemnified Smile 4 You against any and all Liabilities and increased administration and professional and legal costs on a full indemnity basis suffered by Smile 4 You (without set-off, counterclaim and/or reduction) and arising out of or in connection with:
9.1.1 any unauthorised use and/or infringement of Smile 4 You’s Intellectual Property Rights;
9.1.2 any breach of this Agreement, any tortious act and/or omission and/or any breach of statutory duty by the Affiliate;
9.1.3 any unauthorised Promotion Activities and all the activities of the Affiliate;
9.1.4 any use of the Link and/or the Licensed Rights other than in accordance with the Use Policy; and
9.1.5 any representation made other than in accordance with the Product Information provided to the Affiliate in the Affiliate’s Resource Area.
whether or not such losses were foreseeable or foreseen at the date of this Agreement
9.2 Smile 4 You shall have no Liability to the Affiliate for any:
9.2.1 loss of profits and/or damage to goodwill;
9.2.2 pure economic and/or other similar losses;
9.2.3 special damages;
9.2.4 aggravated, punitive and/or exemplary damages;
9.2.5 aggravated, punitive and/or exemplary damages;
9.2.6 loss and/or corruption of data; and/or
9.2.7 business interruption, loss of business, loss of contracts, loss of opportunity and/or production.
9.3 Smile 4 You’s total Liability to the Affiliate in connection with this Agreement shall not exceed in any 12 month period the Commission paid by Smile 4 You to the Affiliate under this Agreement in the same 12 month period. For the purpose of this clause the relevant 12 month period means the 12 months immediately prior to the first act/omission giving rise to the Liability.
9.4 Each of the limitations and/or exclusions in this Agreement shall be deemed to be repeated and apply as a separate provision for each of: except the clause above placing financial caps on Smile 4 You’s Liability which shall be deemed to apply once only to cover all of the said types of Liability.
9.4.1 Liability in contract (including fundamental breach);
9.4.2 Liability in tort (including negligence);
9.4.3 Liability for breach of statutory duty; and
9.4.4 Liability for breach of common law and/or under any other legal business;
9.5 Nothing in this Agreement shall exclude or limit the Liability of either party for death or personal injury due to its negligence, Liability for its fraud and/or any other Liability which it is not permitted to exclude or limit as a matter of law.
9.6 Each party acknowledges that, in entering into this Agreement, it does not do so in reliance on any representation, warranty or other provision except as expressly provided in this Agreement.
9.7 Smile 4 You makes no express or implied representations or warranties regarding the Smile 4 You Website or its availability or functionality and all implied warranties of merchantability and/or fitness for purpose are expressly disclaimed and excluded. The Affiliate accepts that the operation of the Smile 4 You Website may not be error free or uninterrupted and Smile 4 You are not liable for the consequences of any interruptions or errors in the performance or content of the Smile 4 You Website.
10. Assignment
10.1 This Agreement is personal to the Affiliate and the Affiliate shall not assign, sub-contract, delegate, transfer, mortgage charge (other than by floating charge), place in trust or dispose of any of its rights or obligations under this Agreement without the prior written consent ofSmile 4 You except to the extent expressly permitted in this Agreement.
10.2 Smile 4 You shall have the right to assign, sub-contract, delegate, transfer, place in trust or dispose of any of its rights and/or obligations under this Agreement.
11. Your Relationship With Smile 4 You
11.1 Nothing in this Agreement is intended or will be construed as constituting a partnership, agency, employment or joint venture relationship between the parties. All activities by the parties under this Agreement will be performed by them as independent contractors.
11.2 No third party shall have the right to enforce any terms of this Agreement between the parties. Any rights of a third party to enforce the terms of this Agreement between the parties may be varied and/or extinguished as agreed between the parties without the need for the consent of any such third party.
12. Your Relationship With Smile 4 You
12.1 Neither Party shall directly and/or indirectly use and/or disclose any Confidential Information of the other party except in the proper performance of this Agreement.
12.2 The obligations of confidentiality and non-use set out above shall continue indefinitely except they shall not apply to information:
12.2.1 Neither Party shall directly and/or indirectly use and/or disclose any Confidential Information of the other party except in the proper performance of this Agreement.
12.2.2 The obligations of confidentiality and non-use set out above shall continue indefinitely except they shall not apply to information:
12.2.3 which is after the date of this Agreement disclosed to the receiving Party without any obligations of confidentiality by a third party who is not in breach of any duty of confidentiality in doing so;
12.2.4 which is or becomes generally available to the public in printed publications through no default and/or omission on the receiving party’s part; or
12.2.5 To the extent it is required to be disclosed by law and/or the rules of any recognised stock exchange and/or regulatory authority on condition that the receiving Party gives as much advance notice of such disclosure to the disclosing Party as possible
12.3 The Link and the login and password to enable the Affiliate to access the Affiliate Resource Area comprise Confidential Information and the Affiliate shall effect and maintain reasonable measures to safeguard them from access or use by unauthorised persons and/or for any unauthorised purpose.
13. General
13.1 This Agreement including the Schedules the Use Policy and any revisions of the Use Policy together with the Commission Levels and any variations to the Commission Levels as contained within the Affiliate’s Resource Area constitute the whole agreement between the parties and supersede any prior written or oral agreement between them and is not affected by any other promise, representation, warranty, usage, custom or course of dealing
13.2 No waiver by either party of any breach of this Agreement shall be considered as a waiver of any subsequent breach of the same provision or any other provision.
13.3 Each party shall from time to time, at the other party’s request and cost, do all such acts and execute all such documents and/or deeds that may be reasonably necessary in order to give effect to the provisions and this Agreement.
13.4 Smile 4 You may vary the terms of this Agreement at any time on providing the Affiliate with 14 days’ prior notice. No purported variation of this Agreement by the Affiliate shall take effect unless made in writing, referring to this Agreement and signed by an authorised representative of each party.
13.5 If any part of this Agreement is held to be void and/or unenforceable that part shall be struck out and the remainder of this Agreement shall remain in full force and effect. The parties agree that in the event of any such deletion they shall negotiate in good faith in order to agree the terms of an enforceable obligation or term which achieves or is closest to achieving the commercial aim of the deleted part. The failure of the parties to agree such a replacement provision shall not affect the validity of the remaining part of this Agreement.
13.6 Each party shall be responsible for paying its own costs and expenses incurred in connection with the negotiation, preparation and execution of this Agreement.
13.7 Smile 4 You may set off against any sums payable by Smile 4 You to the Affiliate any amounts due to Smile 4 You from the Affiliate whether under this Agreement or otherwise.
13.8 Neither Party shall be liable for loss, damage, detention, delay or failure to deliver and/or perform all or any part of its obligations (other than payment) under this Agreement as a result of a Force Majeure Event.
13.9 A Party affected by a Force Majeure Event shall inform the other Party as soon as practicable of the occurrence of the Force Majeure Event giving full details in writing of its expected effect and duration. A Party affected shall take all reasonable efforts to resume performance of its obligations as soon as practicable and in the meantime to mitigate the effects of any such event or to find a solution by which this Agreement may be performed. If and to the extent the Force Majeure Event continues and the party affected will have an extension of time for performance which is reasonable. As regards such delay or stoppage:
13.9.1 any costs arising from the delay or stoppage will be borne by the Party incurring those costs; and
13.9.2 either Party may, if the delay or stoppage continues for more that 6 months, terminate this Agreement with immediate effect on giving written notice to the other and neither party will be liable to the other for such termination
13.10 Smile 4 You undertakes to process the Affiliate’s Personal Data in accordance with the principles of the DPA.
14. Law and Jurisdiction
14.1 THIS AGREEMENT IS GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH ENGLISH LAW THE PARTIES SUBMIT TO THE NON-EXCLUSIVE JURISDICTION OF THE ENGLISH COURTS.