Fonepark - Terms and Conditions Text

Standard Affiliation Agreement
Terms & Conditions

Between:

Rok Media Ltd trading as Fonepark Registered with Companies House for UK and Wales under number 04934714, the registered office is ROK HOUSE, KINGSWOOD BUSINESS PARK, HOLYHEAD ROAD, ALBRIGHTON, WEST MIDLANDS WV7 3AU United Kingdom

Hereinafter referred to as FONEPARK

And you the Affiliate Owner

Hereinafter referred to as the AFFILIATE

Fonepark is the organiser of this affiliate programme designed to create links between the Fonepark website and the Affiliate website, allowing Internet Users access to sign up for one or more subscription or single download services via a mobile billing solution.

The Affiliate edits a website for which it is solely liable and wishes to offer Internet Users visiting its site the means of signing up for Fonepark�s services.

In consideration for inserting links on the Affiliate website, Fonepark will pay the Affiliate remuneration based on the number of mobile content services and downloads from the Affiliate website.

The following is now agreed:

Definitions
Internet User refers to a person connected to the Internet and may use the Affiliate website

Affiliate Programme refers to the programme set up by Fonepark where the Affiliate is able to set up a link, in consideration for which the Affiliate will receive remuneration in accordance with Financial Terms.

Services refer to all offers proposed by Fonepark on its websites

Link means any banner, icon, text, search engine, HTML code or form supplied by Fonepark to the Affiliate for directing an Internet User to the Fonepark website to sign up for any services

White Pages refer to web pages designed by the Affiliate in its own brand colours, with tools provided and hosted by Fonepark, from which Internet Users can access the services

Downloads refers to actual retrieval of content to the End User's mobile device

Operators refers to the telecom suppliers of Fonepark who ensure payment of download retrievals whether by sms shortcode and trigger of via credit card

Subject
The subject of this agreement is the Terms & Conditions under which under which the Affiliate will join the Affiliation Programme on a non-exclusive basis.

Terms for joining the Affiliation Programme
To participate in the Affiliation Programme the Affiliate must complete all the blank fields on the on-line Registration form displayed on the Fonepark website and click the "I accept" icon. An account is opened in the name of the Affiliate in receipt of this form.

Fonepark reserves the right to reject any application at its own discretion and in particular where applications relate to websites that:
 Do not comply with current laws and regulations and/or infringe the rights of any third parties
 Are not suitable to market Fonepark's services or that may damage the Fonepark brand or its services

Fonepark's Responsibilities
 Supply the link and the URL address (es) to which Internet Users will be directed, within a reasonable time period from acceptance of the application to join the Affiliation Programme
 Ensure its IT system performs to a standard that allows the services to function properly
 Update statistics of completed Downloads using a performance tool and allow the Affiliate on-line access to these statistics, access to such information will be dependent on User Name & Password
 Pay the Affiliate subject to conditions in Financial Terms

Affiliate's Responsibilities
 To create the white pages using the tools provided by Fonepark and in accordance with the technical guidelines supplied by Fonepark in a way to allow the services to function properly
 To create links allowing access to the white pages without (in any way at all) altering the code (HTML, PHP or other) needed for creating links, communicated by Fonepark
 Not display the Links which may lead the Internet User to confuse the Affiliate site with that of Fonepark
 To promote and market the services actively, honestly and fairly
 To supply Fonepark with an invoice that complies with tax and accounting laws of the UK and in accordance with the technical terms and conditions developed by Fonepark
 To inform Fonepark of any alteration to the content of any of its websites, by all means available and in the shortest time possible
 Must comply with all tax laws and regulations of their relevant country
In the event that the Affiliate fails to carry out any of its responsibilities mentioned above, Fonepark will be entitled to suspend the Affiliate's membership of the Affiliation Programme

Terms & Conditions of Use of the Services
 The Affiliate makes a system of links available on its website that direct Internet Users to the white pages
 The white pages contain links referring the End Users to the services offered by Fonepark as well as the audio text numbers enabling the service(s) to be used
 Fonepark will process connections made by End Users via the links on the Affiliate website separately

Warranty & Liability
Fonepark will not be liable for the content of any of the Affiliates websites, neither shall it be liable for any disputes or claims by third parties relating to rights granted by the Affiliate pursuant to Intellectual Property Rights herein. The Affiliate agrees to hold Fonepark harmless in the event of any such proceedings or action. In the event a third party brings proceedings against Fonepark on the grounds of the content and/or information disseminated by the Affiliate on its website and /or white pages and/or the sub domain name allocated by the Affiliate to its white pages and/or the keywords intended to list such white pages in search engines or in relation to the rights granted by the Affiliate to Fonepark pursuant to this article herein, the Affiliate will assume liability for the costs of defending Fonepark and will compensate Fonepark on first request for any legal fees or amounts paid out on any grounds whatsoever and all costs, expenses and compensation for which Fonepark may be liable pursuant to such action, without any limitation whatsoever.

In all events, in the case of proceedings and/or notice to remedy issued relating to the conduct of the Affliliate in particular regarding concerns, failure to comply with the above warranties Fonepark may:
 Suspend performance of the contract
 Suspend and retain payment of sums due to the Affiliate up to and including the total value of any sums owing to Fonepark

Fonepark shall not be liable for any problems relating to the use of the services attributable to the failure of Internet Users or End Users to comply with the terms and conditions of use or of download of the service

Fonepark will not be liable for problems arising in using the services attributable to:
 Failure by the Affiliate to comply with the technical specifications provided by Fonepark
 Failure by Internet Users to comply with the conditions of use of the services

Fonepark will perform its obligations in this agreement with the skill, care and diligence to the best of their ability. In the event of a serious fault on the part of Fonepark and subject to proof of origin of the fault being established, the Affiliate will be entitled to seek compensation for direct harm where it can provide necessary proof. Fonepark declines all liability in the event of non-performance, even partial, by the Affiliate of any of the obligations incumbent upon it under this agreement.

Fonepark will not be liable for any compensation regarding indirect losses such as: loss of earnings, financial or commercial loss, increase in overheads, loss of brand image, consequences of any third party proceedings or loss originating or arising out of the agreement, as well as damage caused to persons or goods that are distinct from the purpose of the agreement.

In the event that Fonepark were found liable the total amount of compensation that Fonepark will pay the Affiliate shall not exceed the sums collected by the Affiliate under the agreement for the previous three months prior to the event giving rise to the damage

Intellectual Property Rights
The Affiliate declares that it holds the rights necessary to grant Fonepark a worldwide, personal, non-exclusive license free of charge for its trademarks, logos, commercial or trade names and other distinctive signs, for the total period of the affiliation agreement and so authorises Fonepark to use, reproduce same on its white pages. No other rights are granted to Fonepark.

The Affiliate declares and warrants that it will not infringe the rights of third parties, especially as concerns the choice of sub domain names intended to host the white pages, or of the key words designed to list the white pages in search engines.

Fonepark declares that it is the owner of all rights necessary to enter into this agreement and will remain the sole owner of its names, trademarks, logo and other distinctive signs together in particular the operating rights in respect of services and software that have been developed.

Proof and Service of Documents
In the event of a dispute between the parties, the parties agree that all processes of information by electronic means, in particular e-mail, all processes for storing data used by Fonepark and the daily statistics generated by such electronic tools and stored on Fonepark's servers, maybe used to establish such proofs.

Financial Terms
Remuneration
Remuneration for the Affiliate is dependent on the number of downloads made by End User clients.
Out-payments are calculated as follows:
 Per download on the basis of the out-payment table that can be consulted on Fonepark website
 Subject to the downloads having been made lawfully and to the Operators having made payment in respect of the downloads

Out-payment Terms and Conditions
Based on the statistics generated by the Fonepark performance tools and exclusively using the tools made available to the Affiliate by Fonepark. The Affiliate will prepare and send an invoice to Fonepark incorporating the number of downloads made over the period provided in the automatic statement sent by Fonepark via email to the Affiliate on the 1st day of the next month. Fonepark will verify the invoices and, unless there is a dispute will make settlement within sixty days of receipt. If there is a discrepancy Fonepark will present its evidence and both parties will attempt to settle the dispute.

However, if the amount is less than £25.00, payment will be postponed until the following month and/or until the outstanding amount owed to the Affiliate has reached that sum.

Invoices will be drawn up and settled in £GBP, any exchange rate variance will belong to the Affiliate

Modification of Out-payment Scale
The Affiliate acknowledges that Fonepark may modify the out-payment table at any time. The modifications will be made to the website and from that time all Affiliates will be subject to modified out-payments.

Disallowed Remuneration
Any unlawful download by misuse on quantity of calls or any other fraudulent practices shall disallow the Affiliate from any form of out-payment. Fonepark reserves the right to cancel the agreement on the exclusive fault of the Affiliate and will commence legal action against the Affiliate.

Term & Termination
This agreement comes into force with effect from the date of acceptance of the registration form to join the Affiliate Programme submitted by the Affiliate and confirmed by Fonepark by e-mail.

The agreement is entered into for an undetermined period of time. Either party may terminate the agreement at any time in writing subject to one-month notice.

In the event the Affiliate fails to comply with any of the conditions herein, Fonepark reserves the right to cancel the agreement on the fault of the Affiliate. Such termination will be given without notice and is without prejudice to any compensation that Fonepark may be able to claim

The agreement shall cease legally and automatically in the event of termination of any agreement binding the Operator and/or Service Provider and Fonepark. Such termination will not entitle the Affiliate to any compensation whatsoever

On cessation of the contractual relationship, the Affiliate must delete all links established between its website and that of Fonepark. Fonepark will delete the white pages.

Force Majeure
In the case of any event falling within the definition of force majeure as given by the courts, the obligations of the party prevented from performing the agreement shall be suspended. Both parties agree that the following incidents will be treated as force majeure
 Interruptions to services due to fault of telecommunication networks or its service providers or the characteristics and limitations of the Internet networks, in particular in the case of interruptions to access networks, technical performance and response times for consulting, retrieving or transferring information
 Insurrection, civil war, war, military operations, national or local state of emergency, natural disasters, fire, lightning, explosion, flood, storm

In the event of a force majeure preventing either party from performing its obligations under this agreement for a period in excess of two weeks, either party may terminate this agreement in writing, without being able to claim any compensation from the other party

Confidentiality
Both parties agree to keep confidential all information and documents whether commercial, financial, economic, technical etc to which they may have had access during the course of this agreement

However, neither party shall be deemed liable for divulging information or documents if they
 Are already in the public domain
 Were obtained lawfully by third parties not subject to the obligation of confidentiality
 Must be disclosed to a third party due to the effect of law, a court decision or a competent public authority
 Disclosed to a court, including court arbitration, or an expert appraiser or counsel

User Name & Password
The Affiliate has sole liability for using the Username and Password forwarded by Fonepark. On no account should the User Name and Password be divulged to a third party. In the event of unauthorised use of its Username and Password, the Affiliate must inform Fonepark without delay

Independence
The terms of this agreement shall not be interpreted as making one party the principal agent or legal representative of the other party. Each party agrees to refrain from doing anything that may mislead a third party in this respect and further agrees not to make any undertaking or offer any warranty on behalf of the other party

Other
If either party fails to avail itself of any of its rights under the terms of this agreement shall not be construed as a waiver of such rights in the future

If any clause in the agreement is declared null and void that clause will be deemed not to have been included but will not effect the agreement as a whole. The parties will try to agree an equivalent that is valid and reflects both parties' intentions

The agreement forms the whole of the contractual documents between the parties and replaces all previous agreements between them with the same subject; it may not be modified except by supplementary agreement signed by a supplementary agreement signed by both parties

Fonepark reserves the right to alter these standard terms & conditions at any time. The current terms and conditions are accessible on the Fonepark website and it is therefore the responsibility of the Affiliate to check for updates regularly. Fonepark will inform the Affiliate of any alterations to this agreement by any means available.

Applicable Law
This agreement is governed by English law.