BView Publisher Agreement

BView Publisher Agreement (as of 4th June 2009) Please read this Agreement before using the BView API service offered by BView Limited. By using the BView API Service, you agree to all the terms and conditions of this Agreement as well as BView User Terms of Use (located at http://www.bview.co.uk/static/frontend/bv.44/content/terms_of_use.html) and the BView Privacy Policy (located at http://www.bview.co.uk/static/frontend/bv.44/content/privacy_policy.html ) which are incorporated into this agreement by reference. You may not use the Services if you do not accept the Terms. You can accept the Terms by actually using the Services. In this case, you understand and agree that BView will treat your use of the Services as acceptance of the Terms from that point onwards. 1. Definitions 1.1 In this Agreement, the following expressions have the following meanings: Affiliate Network - any entities that provide tracking and payments of affiliate commissions on behalf of Merchants and who have contracted with BView to participate in the Service. Agreement – This BView Publisher Agreement, which includes by reference the BView User Terms of Use and the BView Privacy Policy. BView - BView Limited, a company incorporated in England and Wales with registered number 06483387 whose registered office is 27 City Lofts, 112 Tabernacle Street EC2A 4JU, United Kingdom; also referred to as “We”, “Us”, or “Our”. BView API – the application protocol interface that when added to a website, enables the Technology on the Publisher's site. BView Content – any data, images, text, video and audio, including referral codes and voucher codes originating from the BView API service. BView Website - Web pages accessible following links on and from the www.bview.co.uk URL. Chargeback - any Sales and Referrals that after the event are determined by the relevant Merchants not to be bona fide business transactions. In cases of chargebacks any Commissions either due to be paid or actually paid to the Publisher may be cancelled or reversed to reflect the fact that the Merchant's business never benefited from the transaction. Chargeback rules, including time limits for Merchant claims, are detailed in clause 9. Commissions - monetary payments made to the Publisher in relation to Voucher Downloads and/or Sales or Referrals of Customers to Merchants. Commissions shall be calculated according to the rates that BView has agreed with the Merchant and/or that a Merchant has agreed with the respective Affiliate Networks and shall be paid to the Publisher by BView in accordance with clause 7. Customer - A user of the Publisher's Sites that is referred to the Merchant via the Service and/or interacts with Merchants by purchasing goods or services or providing the Merchants with information. Merchant - Any party supplying goods and services to, and accepting Referrals of, Customers and who have signed up to BView and/or an Affiliate Network or have an affiliate program. Publisher or Publisher Group - The party to this agreement wishing to participate in the Service by adding the Technology to the Publisher's Sites with the intention of earning revenues in the form of Commissions for Customers who create Voucher Downloads and refer Customers to Merchants; also referred to as “You” or “your”. Referral - the act of passing on a Customer to a Merchant's website(s), with or without the aim of monetary reward Sale - the sale of goods or services by a Merchant to a Customer. Service - the provision of the Technology to the Publisher and access to the technological and commercial relationships between publishers, Merchants and Affiliate Networks. Technology - the technology (including the BView API Code) that facilitates the delivery of BView Content to the Publisher, the automated and online Referral of a Customer to a Merchant by the Publisher, the Voucher Download by a Customer, and the software that records the Voucher Downloads, Referrals and the Customer's activity within the Service including their interactions with Merchants such as Sales and/or the provision of information. Voucher Download – a valid download by a bona fide Customer who intends to do business with a merchant as determined at the sole discretion of BView. 2. The service 2.1 You must apply to participate in the service by contacting BView via the contact details on the BView Website. BView will evaluate your application in good faith and communicate with you to determine eligibility. 2.2 BView will inform you via phone or email if your application is unsuccessful. BView may reject your application if BView determines (in their sole discretion) that your Sites are unsuitable for the Service. 2.3 Once you have been accepted into the Service, BView will assign you a unique publisher ID and give you the BView API Code to insert into the your Site. 2.4 You must inform BView if it wishes to use the Service on additional websites, as each new site will need to be individually approved and setup for inclusion in the Service. 2.5 You agree that BView can include any Merchants within the Service. 2.6 BView is constantly innovating in order to provide the best possible experience for its users. You acknowledge and agree that the form and nature of the Services which BView provides may change from time to time without prior notice to you. 2.7 You acknowledge and agree that while BView may not currently have set a fixed upper limit on the number of transmissions you may send or receive through the Services, such fixed upper limits may be set by BView at any time, at BView’s discretion. 2.8 You agree to use the Services only for purposes that are permitted by (a) the Terms and (b) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions (including any laws regarding the export of data or software to and from the United States or other relevant countries). 2.9 You agree that you will not engage in any activity that interferes with or disrupts the Services (or the servers and networks which are connected to the Services). 2.10 Unless you have been specifically permitted to do so in a separate agreement with Google, you agree that you will not reproduce, duplicate, copy, sell, trade or resell the Services for any purpose. 2.11 You agree that you are solely responsible for (and that Google has no responsibility to you or to any third party for) any breach of your obligations under the Terms and for the consequences (including any loss or damage which BView may suffer) of any such breach. 3. Participation requirements 3.1 BView reserves the right to terminate this Agreement if it deems, acting reasonably, that your Sites are unsuitable for the Service. A Publisher's Site is likely to be deemed to be unsuitable if they knowingly engage in any (but not limited to) the following: 3.1.1 Promote violence or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age. 3.1.2 Damages merchant brands or reputations 3.1.3 Does not add value to the content discovery/creation/distribution process 3.1.4 Violates intellectual property rights 3.1.5 Engages in merchant brand name bidding on any pay-perclick (PPC) advertising program using registered brand names of Merchants in the Service Provided that nothing in this clause shall: (i) apply to any content published on any of your Sites other than by you or any of your group companies; and (ii) prevent you or any, of your group companies from publishing reviews of Merchant products or services on any of your Sites and/or fetter you or your group companies' editorial freedom in relation to the same. 3.2 BView reserves the right to terminate this Agreement if it deems, acting reasonably, that your Site is underperforming in its use of the Service. This may include, but is not limited to, any of the following: 3.2.1 low ratio of Referrals and Voucher Downloads relative to the number of requests via the BView API for BView Content 3.2.2 low conversion rate (of sales to clickthroughs) 3.2.3 suspected fraudulent click activity on the Publisher's Site 3.2.4 low traffic and clickthroughs on links on the Publisher Site 3.2.5 any other activity which affects the economic viability of offering the Service to the Publisher We shall inform you in writing or via e-mail if any of the above conditions becomes problematic. You shall have 2 weeks to rectify the reported issue. If the issue is not resolved satisfactorily, We have the right to terminate the Agreement according to clause 11. 3.3 The determination as to whether a Publisher Site is suitable for the BView Content at the sole discretion of BView. We reserve the right to terminate this Agreement and disable access to the Service for any Publisher's Site if it is deemed unsuitable, at Our sole discretion. 3.4 Save as set out in clause 9.2, this Agreement does not grant the Publisher any rights to any BView Content or BView intellectual property rights. The Technology provided for the use of the Publisher shall remain at all times the property of BView. 4. Technical issues 4.1 If the you, or your Sites' Customers have configured their system such that the Technology for confirming the means of Referral or Voucher Download is disabled (including Customers with Javascript or Cookies blocked on their computers) We shall not treat the Customer as having been referred by you. We shall not account for, and you will receive no Commission for any such Referrals or Voucher Downloads. We will use reasonable endeavours to ensure that the Technology works on Customers' and the Publisher's systems. 4.2 The determination of the referring Affiliate Network for Merchants having participation in more than one affiliate programme shall be controlled by the Technology (if both or all programmes are part of the Service). 5. Referral income 5.1 You are entitled to Commissions for Voucher Downloads and for Referrals, where your Sites have been the most recent referrer to a Merchant's website. The calculation of Commissions due to you shall be by performed by BView and the relevant Affiliate Network. Different Merchants use different Commission structures with some using fixed amounts per transaction or Referral whilst others use percentage based methods. Different Merchants also have different cookie life-times (only Sales made during the cookie life-time are eligible for Referral income). 5.2 We shall collect and aggregate the Commissions due to the Publisher from the Merchants via the Affiliate Networks. You shall be paid after Commissions due become unconditional (ie. the relevant time limits for claiming Chargebacks has expired) or any free trial period for a given Merchant has ended. 5.3 Merchants shall have the right to vary their Commission structures or to terminate their involvement in the Service at any time. 6. Payment terms 6.1 We shall not charge you to apply for, install and use the Service on approved sites. We take payment for the Service from you only when Commission is generated through the use of the Service. 6.2 Save as set out below, We shall be entitled to retain 50% of Commissions payable to you by the Merchants through the Affiliate Networks or as contracted directly between the Merchant and BView. The remaining 50% of the Commissions will be paid monthly to you by BView. 6.5 We shall pay Commissions due to you on the last business day of the month following the month in which the Commission due became unconditional in accordance with clause 9. 6.6 For payments in currencies other than the British Pound, the exchange rate used will be that of the date of payments and as calculated by PayPal. 6.7 If the amount of Commission due to you is less than £50 (excluding any VAT element if appropriate) in any month (the "Minimum Threshold"), the amount due will be carried over and aggregated with subsequent month's Commissions and paid when the cumulative amount then due for payment to you exceeds the Minimum Threshold. 6.8 Payments will be made via PayPal or UK bank transfer. 7. VAT 7.1 Commission is a payment made by BView to you for use of the Service and the subsequent generation of Referrals on your Site. This means for VATregistered (Value Added Tax) companies in the United Kingdom, the Publisher shall charge BView VAT on the payable Commissions to the Publisher. 7.2 BView has the authority of United Kingdom Customs & Excise to raise VAT invoices on the Publisher's behalf, and BView will issue this invoice along with payment each month. The Publisher is required to keep BView updated with information relating to their VAT status (including but not limited to VAT registration status, VAT number (if applicable), address and organisation name). 8. Chargebacks 8.1 Merchants are entitled to request Chargebacks where a Sale or Referral is reversed due, but not limited to, goods being returned by the Customer or the subsequent detection of a fraudulent transaction. In order to qualify as a Chargeback the Merchant has to submit a valid Chargeback claim to the relevant Affiliate Network within a specified time after the initial transaction for the Commission payable to be reversed. The maximum specified time for a Commission to become unconditional is 60 days after the Sale and/or Referral. 9. Rights to Technology, intellectual property and warranties 9.1 Nothing in this Agreement grants any rights to you regarding any filed patents, web addresses or domain names owned by or registered to BView. We acknowledge and agree that your Sites shall remain at all times your property and ownership of all of your IPR shall remain wholly vested with you or your licensors. 9.2 BView now grants to you and the Publisher Group a non-exclusive, worldwide, royalty free right to use the Technology on all or part of your Sites, to the extent necessary for you to perform any obligations under this Agreement and for it to utilise the Technology and the Service. 9.3 You shall not be entitled to use the Technology in any other way other than as set out in this Agreement. Any attempt to interfere with the operation of the Service will also be looked upon as breach of this Agreement and may result in termination of inclusion in the Service. 9.4 You shall not use any other competing affiliate marketing link creation service directly alongside the Service in any of those areas of your Sites which contain editorial material. Other affiliate marketing-based widgets and advertising units will not interfere with the Technology. 10. Availability of the Service 10.1 The Services are provided “as is” and BView and its licensors give you no warranty with respect to them. The parties acknowledge that the time to redirect from an Affiliate Network to a Merchant website is outside BView's control and no guarantees are made regarding this process. 10.2 We will use our best endeavours to ensure that the Service is operated professionally with every reasonable effort being made to ensure that the Service is available and operating in accordance with the terms of this Agreement. 10.3 Please report any Service performance issues via e-mail to BView and we will endeavour to resolve the issue. 11. Term of this Agreement 11.1 This BView Publisher Agreement (or “Agreement”) will commence on the date that you begin using the Service and will continue until terminated by either party in accordance with the terms of this Agreement. Either party may immediately terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination. Any such notice of termination must be delivered to the BView Account Manager (as notified to the Publisher) and to the Publisher contact (as is notified to BView from time to time), as applicable. 11.2 Upon the termination of this Agreement for any reason, you will immediately cease use of, and as soon as practicable remove from your Sites, all instances of the Technology and promptly return to BView, or at BView's written request, destroy any and all of its IPR, information and/or materials in your possession. You shall only be eligible to earn Commissions on Voucher Downloads, Sales and Referrals from Customers that occur during the term of this Agreement, and any Commissions earned after the date of termination will remain payable only if the related amounts are not disputed or subject to a Chargeback by the Merchant or Affiliate Network. We may withhold the Publisher's final Commission payment for such time as is reasonable to ensure that the correct Commission amount is paid to you, up to a maximum of 3 months. 11.3 Merchants may terminate their involvement in the Service, either across all publishers or in relation to specific publishers they deem do not meet their terms of use, policies and standards. We will endeavour to minimise the number of Merchants that opt-out of the Service, but cannot warrant that this can be avoided. 11.4 A Merchant may at any time send BView written notice requesting that you remove links or references to the Merchant's brands, products, or anything containing their trade marks and logos where relevant to this Agreement. We will communicate this written notice, and request that you honour the Merchant's requests. 12. Communication 12.1 Any notice under this Agreement may be given as follows: Notice from the Publisher to BView shall be in writing and shall be made either via e-mail or certified mail to BView's registered office address; Notice from BView to the Publisher shall be in writing and shall be made either via e-mail or certified mail. Notices sent by e-mail will be effective 24 hours from the time of sending and 48 hours after posting. 12.2 BView is permitted to publicise its relationship with the Publisher. BView will seek prior written approval from the Publisher before including details about the Agreement in any public announcements or media releases. 13. Modifications 13.1 BView may modify any of the terms and conditions contained in this Agreement, at any time and at its sole discretion, by confirming them in by email, or as a public notice on the BView Site, with 5 business days notice. If the new terms are unacceptable to the Publisher, the agreement may be terminated as documented in clause 11. 13.2 Continued participation in the Service after the notice period will constitute binding acceptance of the change. 14. Relationship of Parties 14.1 Nothing in this Agreement shall be construed as creating a partnership or joint venture of any kind between you and BView. Neither party shall hold itself out to any third party as having authority to bind the other party nor create any liability on behalf of the same in any way. 14.2 You shall not engage in any commercial resale of the BView Content, Service or the Technology without the prior written approval by BView. 14.3 You will be solely responsible for the development, operation, and maintenance of your Site and for all BView Content and other materials that appear on your Site. For example, you will be solely responsible for: 14.3.1 the technical operation of your Site and all related equipment; and 14.3.2 creating and posting Merchant descriptions and links on your Site and linking to Merchant sites 14.3.3 the accuracy and appropriateness of materials posted on your Site (including, among other things, all merchant and merchant's product/service information) 14.3.4 ensuring that materials posted on your Site do not violate or infringe upon the rights of any third party (including, for example, copyrights, trademarks, privacy, or other personal or proprietary rights) 14.3.5 ensuring that materials posted on the your Site are not libelous or otherwise illegal. 14.4 BView disclaims all liability for any of the above. Further, you will indemnify and hold BView harmless from all claims, damages, and expenses, including, without limitation, attorneys' fees and cost of suit, relating to the contents of your Website. 15. Privacy and data protection 15.1 BView will store the following information pertaining to your Site: 15.1.1 Voucher Downloads, Sales and Commissions generated as a result of a Referral from your Site; 15.1.2 Commission balances and payments made to you; 15.1.3 bank and/or PayPal information to enable payment to you of eligible Commissions; 15.2 BView will keep the above information confidential, safe and private, and will retain it for a period of at least 7 years for auditing purposes. 15.3 You may request an audit of data stored by BView, for the purpose of affirming the accuracy of Commissions paid to you. You will be solely responsible for the costs associated with any such audit. 15.4 Each of the parties warrants and undertakes that it (and its subcontractors if applicable) shall duly observe its obligations under the Data Protection Act 1998 and any superseding or amending legislation and all other current data protection legislation applicable to this Agreement. Other terms are outlined in the BView Privacy Policy, incorporated here by reference. 15.5 In order to promote ethical and transparent use of the service, you are required to disclose use of affiliate marketing in their content. This must be displayed in a publicly accessible area of you site such as a “Privacy Policy” or “About Us” section. 16. Limitation of liability 16.1 No party shall be liable to the other, in contract, tort, negligence, precontract or other representations (other than fraudulent or negligent misrepresentations) or otherwise, for any indirect loss of business, data, contracts, profits or anticipated savings or for any other indirect or consequential loss whatsoever. 16.2 Except as set out in this Agreement, We make no express or implied warranties or representations with respect to the Service, the BView Content or the Merchants accessible through the Service (including warranties of fitness, merchantability or any implied warranties arising out of a course of performance, dealing, or trade usage). In addition, We make no representation that the operation of the Service will be uninterrupted or error-free, and We will not be liable for the consequences of any interruptions or errors. 16.3 In the event that you become aware of any BView Content that violates the BView Terms of Use or the BView Privacy Policy, you shall immediately report such via the appropriate “report abuse” links on the BView Site. 17. Force Majeure 17.1 Neither party shall be liable to the other by reason of any event arising which is beyond the reasonable control of the affected party (including any industrial action (save in respect of affected party's employees or suppliers), governmental regulations, fire, flood, disaster, civil riot or war). 18. Severability of clauses 18.1 Each of the provisions of this Agreement are to be construed separately and independently of the other, and if any provision is found by any court or other judicial body of competent jurisdiction to be invalid or unenforceable, the invalidity or unenforceability of such provision will not affect the other provisions of this Agreement which will remain in full force and effect. 18.2 Neither party's failure to enforce the other party's strict performance of any provision of this Agreement will not constitute a waiver of that party's right to subsequently enforce such provision or any other provision of this Agreement. 19. Entire Agreement 19.1 This BView Publisher Agreement incorporates by reference the BView Terms of Use or the BView Privacy Policy. Where any clause in this BView Publisher Agreement conflicts with those in the BView Terms of Use or the BView Privacy Policy, the terms of this BView Publisher Agreement shall replace such terms. These agreements constitute the entire Agreement between BView and you and completely replace any prior agreements between you and BView in relation to the Services. No term may be modified except in writing between by a BView director and a duly authorised representative of the Publisher.