Terms & Conditions
These Terms & Conditions ("Terms") apply to the appointment by Hutchison 3G UK Limited, of Star House, 20 Grenfell Road, Maidenhead, Berkshire. SL6 1EH (registered number 3885486) ("SMARTY") of [ ]
("Affiliate") as a non-exclusive representative to introduce customers to 3.
1. Introduction
1.1 Affiliate is subject to approval either
(i) via SMARTY´s internal tracking system, Direct Track; or
(ii) by Awin (the "Approved Affiliate Network").
1.2 Affiliate is permitted to promote SMARTY’s products and services through approved on-line means and these Terms sets out the terms and conditions of Affiliate’s appointment as a non-exclusive representative of 3.
13 Affiliate agrees to be bound by these Terms and acknowledges that a breach of these Terms by Affiliate will result in termination.
1.4 Affiliate should contact the SMARTY Affiliate Team uk-SMARTY@awin.com with any queries regarding these Terms or any other matters relating to its appointment by 3.
2. General Obligations of Affiliates
2.1 Affiliate must not make, give or apply any conditions, promises, warranties, guarantees, terms, representations or other commitments in respect of, or concerning SMARTY Services or Equipment, other than generally prescribed by SMARTY in writing.
2.2 Affiliate must not mislead or deceive, nor make any false statements or representations to any person in respect of SMARTY or the SMARTY Services.
23 Affiliate must not receive any payments from customers for SMARTY Services.
2.4 Affiliate must not engage in any call (includes outbound and inbound calling) activity with customers or any other third parties on SMARTY’s behalf (for the avoidance of doubt, the Affiliate may only introduce customers to SMARTY through approved on-line means in accordance with these Terms).
2.5 Affiliate must co-operate with SMARTY’s reasonable directions, particularly with regard to standards and quality of promotion and service.
2.6 Affiliate must keep secret and confidential these Terms and all Confidential Information disclosed to it and shall not disclose such Confidential Information without the prior written consent of SMARTY except where Affiliate can show the Confidential Information is in or has become part of the public domain other than as a result of a breach of the obligations of confidentiality under these Terms.
2.7 Affiliate must ensure that all procedures notified by SMARTY relating to the promotion and marketing of SMARTY Services and Equipment to customers and the introduction of customers to SMARTY are fully complied with.
2.8 Affiliate must fully indemnify and hold harmless SMARTY (and its directors, officers, employees and agents) (“Indemnified Parties”) from and against any losses, damages, costs (including legal fees) and expenses suffered or incurred by the Indemnified Parties or awarded by a court of competent jurisdiction against the Indemnified Parties as a result of or in connection with any claim or action arising out of:
2.8.1 any breach by the Affiliate of these Terms;
2.8.2 any claim brought by a third party (including breach of third-party Intellectual Property Rights) in relation to an act or omission of the Affiliate; or
2.83 any breach by Affiliate of any statute or regulation.
2.9 Affiliate acknowledges that Customer Data is a valuable and confidential asset of SMARTY and that SMARTY owns all Customer Data relating to SMARTY Services and Equipment and that Affiliate must not store any Customer Data on the Affiliate Site.
3. SMARTY Intellectual Property and Marks
3.1 All Intellectual Property Rights in the SMARTY Services, the Confidential Information and the SMARTY Marks are the property of SMARTY ("SMARTY IP").
3.2 Affiliate acknowledges that its right to use SMARTY IP is only as expressly set out in these Terms. Affiliate acknowledges and agrees that its use of the SMARTY IP pursuant to these Terms does not give Affiliate any rights, title or interest in the SMARTY IP except the right to use the SMARTY IP as expressly permitted by these terms, and that all goodwill in or associated with the SMARTY IP, including any goodwill generated by or arising through Affiliates’ activities under these Terms accrue for the benefit of, and belong exclusively to, SMARTY or any other party nominated by SMARTY.
3.3 From time to time, Affiliate may be permitted to use the SMARTY Marks. In using the SMARTY Marks, Affiliate must:
3.3.1 comply with the SMARTY Marks Guidelines set out in Appendix A to these Terms;
3.3.2 ensure that each reference to and use of the SMARTY Marks is in accordance with any written instructions from SMARTY;
3.3.3 observe SMARTY’s Brand Guidelines and directions regarding the use of the SMARTY Marks notified by SMARTY;
3.3.4 submit details of any use of the SMARTY Marks to 3.
3.4 Affiliate must not licence, permit or otherwise authorise any third party to use the SMARTY Marks.
3.5 Affiliate must immediately inform SMARTY if it becomes aware of any improper or wrongful use by any person of the SMARTY IP.
3.6 Affiliate must not do, cause or authorise to be done, anything which may impair, damage or be detrimental to the reputation or goodwill associated with SMARTY which may adversely affect the value or validity of the SMARTY IP, or which may bring the SMARTY IP into disrepute or which may jeopardise or invalidate any registration or application of registration of the SMARTY IP or SMARTY’s title to the SMARTY IP.
3.7 Affiliate may only register the words "SMARTY" or "three," or any similar name or mark in a website domain name if the products and services promoted on that site are exclusively those of 3.
3.8 SMARTY reserves the right to prevent Affiliate from bidding on certain search terms on Internet search engines, as it deems appropriate, including but not limited to the following;
3.8.1"Facebook" terms
3.8.2"O2" & "02" terms
3.8.3"Orange" & "I am" terms
3.8.4"Vodafone" & "Vodaphone" terms
3.8.5"T-Mobile" terms
4. Affiliate Site
4.1 Affiliate must ensure that the Affiliate Site includes up to date information regarding the SMARTY Products and Equipment.
4.2 The Affiliate Site must have a minimum of one landing page before directing potential customers to the SMARTY Site.
. The Affiliate Site must be submitted to SMARTY for approval prior to going live. SMARTY reserves the right to accept or reject the Affiliate Site at its sole discretion.
4.3 The Affiliate, on request, must be able to provide full visibility into which websites drive traffic and transactions within the Awin user interface by utilising different publisher IDs or passing a specific value in the click reference that allows for the origin of a sale to be easily distinguished. Should this not be provided, we reserve the right to decline sources from non-approved sources or suspend the publisher from the programme.
5.Termination & Consequences of Termination
5.1 SMARTY may terminate the appointment of Affiliate immediately if:-
5.1.1 Affiliate is in breach of these terms and such breach is incapable of remedy or the breach continues unremedied for 14 days after Affiliate receives written notice from SMARTY requiring it to remedy such breach; or
5.1.2 Affiliate goes into voluntary or involuntary liquidation or is declared insolvent either in bankruptcy proceedings or other legal proceedings, or has begun negotiations with its creditors.
5.2 SMARTY may terminate the appointment of Affiliate on giving not less than SMARTY0 days written notice.
5.3 On termination of its appointment Affiliate must:
(ii) immediately cease to promote, market or advertise the SMARTY Services; and
(iii) immediately stop using the SMARTY IP.
6. Payment
6.1 The commission payable by SMARTY in respect of each SMARTY customer where the Commission Trigger has occurred will be calculated with reference to and in accordance with the SMARTY Affiliate Interface.
6.2 On the 25th day of each calendar month SMARTY will issue a statement of commissions and pay to Affiliate the aggregate amount of the commission where the Commission Trigger has occurred during the previous month.
6.3 In the event that Affiliate disputes the amount of commissions in a statement of commissions, within 30 days of receipt of the statement of commissions, Affiliate must submit a notice in writing to SMARTY setting out, in detail, the basis of such dispute. No appeals will be considered outside this period.
7. Miscellaneous
7.1 Affiliate shall not assign, sub-contract, transfer, charge or make over this appointment or any of its rights or obligations without SMARTY’s prior written consent.
7.2 Affiliate shall act as principal on its own account in all circumstances and shall not hold itself out as the agent of SMARTY or purport to act on SMARTY’s behalf in dealings with third parties.
7.3 Affiliate shall not appoint or purport to appoint any referral partners, dealers or sub-dealers.
7.4 SMARTY reserves the right to update these Terms from time to time on notice and with immediate effect. SMARTY will endeavour to give reasonable notice of such variation prior to it taking effect.
7.5 No changes or variations to these Terms shall be effective unless agreed in writing by 3.
7.6 The construction, validity and performance of these Terms and any dispute relating to their subject matter will be governed by the law of England and Wales and the parties submit irrevocably to the jurisdiction of the English courts.
Definitions:
"SMARTY Affiliate Interface" means the site managed by SMARTY where Affiliate can obtain up-to-date information on sales statistics and earnings;
"SMARTY Marks" means the service marks, trade marks, logos, related brands and other distinctive brand features of SMARTY as owned by or licensed to SMARTY from time to time;
"SMARTY Services" means the content and services provided by SMARTY by means of a SMARTYG network including voice and/or data an/or audio and video communication services;
"SMARTY Site" means SMARTY’s website located at www.SMARTY.co.uk or such other URL as notified by SMARTY to Affiliate;
"Affiliate Site" means a site operated by Affiliate for the purposes of directing potential customers to the SMARTY Site;
"Brand Guidelines" means the guidelines setting out the conditions in which Affiliate may use the SMARTY IP and supplied separately to Affiliate;
"Commission Trigger" means where a potential customer who is referred to SMARTYby the Affiliate (using designated web links) successfully applies for and is accepted by SMARTY for connection to the SMARTY Services; and seventeen (17) days have passed from the date that the customer has concluded the purchase of their Handset and entered into a contract for the provision of SMARTY Services by SMARTY;
"Confidential Information" means secret or confidential, commercial, financial, marketing, technical or other information, know-how, trade secrets and other information relating to SMARTY
"Customer Data" means any personal or account information concerning customers of SMARTY that is recorded by, in the knowledge of, or otherwise in the possession or control of Affiliate;
"Equipment" means a Handset, accessory or USIM pack;
"Handset" means a device or mobile handset approved by SMARTY for use on the SMARTYG network and which may be used to access the SMARTY Network;
"Intellectual Property Rights" means all intellectual property rights, including patents, registered designs, trade marks and service marks, rights in the nature of unfair competition rights, copyright, database right, design right and all similar property rights;
Appendix A
SMARTY MARKS GUIDELINES
Where Affiliate is entitled to use SMARTY Marks in accordance with these Terms Affiliate must:
1. strictly abide by and observe SMARTY’s instructions, requirements, directions and specifications regarding colour references and style guides for reproduction of the SMARTY Marks, and in particular Affiliate must abide by and observe the Brand Central (the extranet through which Affiliate will have access to any applicable guidelines and branded material as notified to Affiliate from time to time);
2. only apply the SMARTY Marks to materials that comply with SMARTY’s written approval;
3. ensure any trade mark/copyright notice specified by SMARTY (or such other notice as SMARTY may in writing require) is affixed adjacent to the SMARTY Marks or in any other position as SMARTY directs on all material using or incorporating all or any part of the SMARTY Marks;
4. not use the SMARTY Marks in juxtaposition or in conjunction with any other symbol, logo, mark or other means of identification or merchandising, except with the prior written approval of SMARTY;
5. not use the SMARTY Marks in a partial or fragmentary form but always in its complete form as depicted in accordance with SMARTY’s written instructions (unless otherwise agreed in writing by SMARTY);
6. if cropping the SMARTY Marks, only do so in accordance with the cropping guide (as notified to Affiliate);
7. not use the SMARTY Marks on any product or other material (including stationery, business cards or correspondence or any other form of written communication) unless prior written approval is obtained from SMARTY;
8. not use the SMARTY Marks otherwise than as permitted by these Terms or in any manner that would be in contravention of any law, regulation or applicable standard except in accordance with SMARTY’s written instructions;
9. not cause or permit anything which may challenge, damage or endanger the SMARTY Marks or SMARTY’s title to the SMARTY Marks or assist or allow any other person to do so except in accordance with SMARTY’s written instructions;
10. not register or attempt to register any part of the names or words forming part of the SMARTY Marks or any work substantially identical or deceptively similar to as or as part of a business name or corporate name;
11. not register or attempt to register any part of the SMARTY Marks or any name, word, mark, design, emblem, visual representation or slogan substantially identical with or deceptively similar to as or as part of a trade mark or design;
12. not represent that it has any right, title or interest in the SMARTY Marks or in any application for registration of it or in any fraudulent, obvious or colour imitation of it other than pursuant to the rights expressly granted by these Terms; and
13. not use any name, word, mark, design, emblem, visual representation or slogan similar or capable of being confused with any part of the SMARTY Marks.
