Definitions and interpretation

In the Agreement:

“Acceptance Email” means an email sent by the Company to an Affiliate in accordance with Clause [2.3] confirming that the applicant has been accepted into the Affiliate Programme;

“Affiliate” means the person (natural or legal) specified as the applicant for our Affiliate Programme on the Registration Form;

“Affiliate Programme” means the Company's website affiliate programme detailed in the Agreement and on the Company Website;

“Affiliate Website” means the website or websites owned and operated by the Affiliate and specified on the Registration Form;

“Agreement” means the agreement between the Company and the Affiliate incorporating these Affiliate Terms, the Registration Form and the Acceptance Email, and any amendments to it from time to time;

“Company” means FunToSee, a limited company incorporated in England and Wales (registration number 4223295) having its registered office at Suite 4, Swan Wood Park, Gun Hill, East Sussex, TN21 0LL, UK;

“Effective Date” means the date the Agreement comes into force as specified in Clause [2];

“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of or problems with the internet or a part of the internet, hacker attacks, virus or other malicious software infections or attacks, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);

“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registered or unregistered, including any application or right of application for such rights (and the “intellectual property rights” referred to above include copyright and related rights, moral rights, database rights, confidential information, trade secrets, know-how, business names, trade names, domain names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);

“Link” means a hyperlink (whether embedded in text or an image or otherwise) from the Affiliate Website to the Company Website in the form, of the design, and in a position on the Affiliate Website specified on the Company Website

“Payments” means payments of

15% (or higher if agreed separately by FunToSee) of the relevant sale price (excluding VAT/Tax and any delivery charges on the sale) to be made by the Company to the Affiliate in respect of each Payment Trigger during the Term (subject to the provisions of the Agreement)

“Payment Trigger” means a purchase of the Company's goods on the Company Website made by a user who visited the Company Website by means of a Link and who made such purchase within 90 days of the date of that first visit;

“Prohibited Materials” means content, works or other materials that the Company determines (acting reasonably) constitute:

“Registration Form” means the HTML form on the Company Website enabling users to apply to become Affiliates;

“Term” means the term of the Agreement; and

“Company Website” means the website accessible via the URL www.funtosee.com.

In the Agreement, a reference to a statute or statutory provision includes a reference to:

The Clause headings do not affect the interpretation of the Agreement.

The ejusdem generis rule is not intended to be used in the interpretation of the Agreement; it follows that a general concept or category utilised in the Agreement will not be limited by any specific examples or instances utilised in relation to such a concept or category.

2.

The Agreement

In order to apply to become an Affiliate, the applicant must complete and submit the Registration Form.

If the applicant makes any input errors during the order process, these may be identified and corrected by the applicant before the Registration Form is submitted by email

The Agreement will come into force if and when the Company sends to the Affiliate the Acceptance Email, following the submission of a completed Registration Form by the Affiliate. This should be sent without “undue delay” (Ecommerce Regulations, Regulation 11(1)(a)).

The Agreement will continue in force indefinitely, unless and until terminated in accordance with Clause [11].

3.

Affiliate Programme

The Affiliate will within 30 days following the Effective Date include one or more Links on the Affiliate Website, and will maintain those Links on the Affiliate Website during the Term.

The Company may from time to time during the Term request amendments to the Links and/or the Affiliate Website for the purpose of ensuring consistency and quality in the use of the Company's trade marks and branding, and [to the extent that such requests are reasonable the Affiliate will make such amendments within 14 days of the request.

The Affiliate will be granted access to an Affiliate control panel on the Company Website during the Term, from which the Affiliate will be able to:

4.

Affiliate obligations

The Affiliate will provide the Company with:

The Affiliate must:

The Affiliate must not:

The Affiliate will not take any action in connection with the Affiliate Programme which might reasonably be expected to lead to the possibility of damage to the reputation and goodwill of the Company and/or the Company Website.

5.

Intellectual Property Rights

The Company grants to the Affiliate during Term a worldwide, non-exclusive, royalty-free licence to reproduce electronically and publish on the Affiliate Website only the Links.

The Company does not warrant that the use of the Links by the Affiliate will not infringe any third party Intellectual Property Rights or give rise to any other liability on the Affiliate.

6.

Payments

In respect of each Payment Trigger which can be verified by the Company (acting reasonably) the Company will make a Payment to the Affiliate.

The Company will account to the Affiliate for all Payments due in respect of [a calendar month] within 45 days, unless the amount due is less than £100, in which case the Payments may be held over to the next payment date.

All Payments stated in or in relation to the Agreement are stated inclusive of VAT, and the Affiliate is solely responsible for paying VAT.

If the Company is required by law to deduct withholding tax or any other taxes or duties from any Payments, then the Company will deduct such amounts from the Payments before paying them to the Affiliate.

Payments to the Affiliate will be made in UK Pounds Sterling by cheque or bank transfer (using such payment details as are provided by the Affiliate on the Registration Form).

If the Company does not pay any amount properly due to the Affiliate under or in connection with the Agreement, the Affiliate may charge the Company simple interest on the overdue amount at the rate of 2% per year above the base rate of [HSBC Bank Plc] from time to time.

No Payments will be due in respect of:

Both before and after termination, the Company will be entitled to set off any amount owed to the Affiliate against any amount the Affiliate owes to the Company whether under the Agreement or otherwise, and against any loss or damage suffered by the Company whether in relation to the Agreement or otherwise arising out of the Affiliate's acts or omissions.

7

Warranties

Each party warrants to the other party:

All of the parties' liabilities and obligations in respect of the subject matter of the Agreement are expressly set out in the terms of the Agreement. To the maximum extent permitted by applicable law, no other terms concerning the subject matter of the Agreement will be implied into the Agreement or any related contract.

8.

Indemnity

The Affiliate will indemnify and keep indemnified the Company, and the Company's officers, employees, representatives, agents and subcontractors, against all damages, losses and expenses (including legal expenses) arising as a result of any breach by the Affiliate of any term of the Agreement.

9

Liability

Nothing in the Agreement will exclude or limit the liability of either party for:

Subject to Clause 9.1, the Company's liability to the Affiliate under or in connection with the Agreement or any collateral contract, whether in contract or tort (including negligence), will be limited as follows:

10.

Force Majeure Events

Where a Force Majeure event gives rise to a failure or delay in either party performing its obligations under this Agreement, those obligations will be suspended for the duration of the Force Majeure event.

A party who becomes aware of a Force Majeure event which gives rise to, or which is likely to give rise to, any failure or delay in performing its obligations under this Agreement, will promptly notify the other.

The affected party will take reasonable steps to mitigate the effects of the Force Majeure event.

11.

Termination

Either party may terminate the Agreement forthwith at any time by giving written notice to the other party.

The Company may terminate the Agreement immediately (with or without giving written notice to the Affiliate) if the Affiliate:

12.

Effects of termination

Upon termination all the provisions of the Agreement will cease to have effect, save that the following provisions of the Agreement will survive and continue to have effect (in accordance with their terms or otherwise indefinitely): [Clauses 1, 8, 9, 12 and 13].

If the Agreement is terminated by the Company under Clause [11.2], the Company will not have any obligation to make any further Payments to the Affiliate.

Subject to Clause [12.2]:

13.

General

Any notice given under the Agreement must be in writing (whether or not described as “written notice” in the Agreement) and must be delivered personally, sent by pre-paid first class post, or sent by fax or email, for the attention of the relevant person, and to the relevant address, fax number or email address specified on the Registration Form (in the case of the Affiliate) or the Company Website (in the case of the Company) (or as notified by one party to the other in accordance with this Clause).

A notice will be deemed to have been received at the relevant time set out below:

No breach of any provision of the Agreement will be waived except with the express written consent of the party not in breach.

If a Clause of the Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other Clauses of the Agreement will continue in effect. If any unlawful and/or unenforceable Clause would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the Clause will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant Clause will be deemed to be deleted).

Nothing in the Agreement will constitute a partnership, agency relationship or contract of employment between the parties. The Affiliate will not make any statement on the Affiliate Website or otherwise which expressly or impliedly suggest that there is any such relationship between the parties.

The Agreement may be varied by the Company posting a new version of the Agreement on the Company Website [and notifying the Affiliate in writing that the Agreement has been varied]. The Affiliate's continued participation in the Affiliate Programme after receipt of such a notice will constitute the Affiliate's acceptance of the varied Agreement.

The Company may freely assign its rights and obligations under the Agreement without the Affiliate’s consent to any successor to all or substantial part of the its business from time to time. Save as expressly provided in this Clause or elsewhere in the Agreement, neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise dispose of or deal in the Agreement or any rights or obligations under the Agreement.

The Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to the Agreement are not subject to the consent of any third party.

The Agreement constitutes the entire agreement and understanding of the parties in relation to the subject matter of the Agreement, and supersedes all previous agreements, arrangements and understandings between the parties relating to the subject matter of the Agreement. Subject to Clause [9.1], each party acknowledges that no representations or promises not expressly contained in the Agreement have been made by or on behalf of the other party.

The Agreement will be governed by and construed in accordance with the laws of England and Wales.

The courts of England and Wales will have exclusive jurisdiction to adjudicate any dispute arising under or in connection with the Agreement.