Publisher Terms and Conditions
General
This agreement is made between you (“you”) and Falcon Invest Group Ltd T/A TopCar (“TopCar”, “us”, “we”) to govern the advertising and commission arrangements between you and TopCar via Awin’s Network.
T&Cs
1. Definitions
1.1. In this Agreement, the following defined terms apply:
1.1.1. Approved URL: means any website, application or service of TopCar that is set out in the Request or otherwise notified to you.
1.1.2. Brand Guidelines: means the TopCar brand guidelines included in a Request or otherwise notified to you by us from time to time.
1.1.3. Commission: means the amount you will earn per Qualifying Transaction, as set out in the Request.
1.1.4. Data Protection Law: means all applicable laws relating to privacy and data protection (including the UK GDPR which has the meaning given to it in section 3(10) (as supplemented by section 205(4) of the Data Protection Act 2018, the Data Protection Act 2018, the Privacy and Electronic Communications Regulations 2003 and all subordinate legislation, directions of any competent privacy regulator, common law and other relevant court decisions and all relevant privacy and/or data protection codes of practice, in each case as may be amended or replaced from time to time).
1.1.5. Intellectual Property Rights: means any intellectual property rights of any kind, whether registered or unregistered, and including applications, renewals, extensions, and rights to claim priority, in each case anywhere in the world
1.1.6. Our Site: means topcar.co.uk or any other website, application or service of TopCar that is set out in the Request or otherwise notified to you.
1.1.7. Product: means a product or service offered for sale on TopCar on any Advertiser URL, as set out in a Request;
1.1.8. Qualifying Link: means a link from Your Site to Our Site using an Approved URL.
1.1.9. Qualifying Transaction: means the situation where a Visitor completes a transaction for a Product from Our Site, having arrived on Our Site from a Qualifying Link, with the Qualifying Link being the last link to Our Site that the Visitor used during the session in which the Visitor completes a transaction for the Product. A "session" is the period beginning when a Visitor visits Our Site via a Qualifying Link and terminating on the earlier of the date on which: (i) the Visitor returns to Our Site other than via the Qualifying Link; or (ii) the Agreement terminates.
1.1.10. Services: means marketing or promoting TopCar or its Products by placing Qualifying Links on Your Site, as detailed in the Request and Application (and as otherwise notified to you by us in writing).
1.1.11. Visitor: means any person who visits Our Site via a Qualifying Link.
1.1.12. Your Site: means your website, application or service, as set out in your Application.
2. Requests and Applications
2.1. TopCar may post details on the Awin (B2C) of an advertising opportunity (each, a “Request”). Each Request will set out the Commission payable to you in return for providing Services leading to a Qualifying Transaction.
2.2. By replying to our Request, you are offering to provide the Services on the terms set out in the Request, and you agree and accept these terms and conditions (an “Application”).
2.3. TopCar will review and decide (in its sole discretion) whether to accept or decline your Application.
2.4. If TopCar accepts your Application, the Request, Application and these terms and conditions will together constitute a legally binding agreement entered into by you and TopCar (the “Agreement”). If TopCar rejects your Application, no agreement will be formed.
3. Your responsibilities
3.1. You are only permitted to market TopCar and its Products on the terms contained in this Agreement.
3.2. When providing the Services under this Agreement, you must at all times:
(a) comply with all applicable laws (including Data Protection Laws);
(b) comply with our Brand Guidelines;
(c) comply with our reasonable written instructions;
(d) ensure that any adverts on Your Site are clearly recognisable as adverts;
(e) only use advertising that has been approved by TopCar;
(f) comply with advertising standards and the CAP code;
(g) promptly remove any advertising that does not comply with our Brand Guidelines;
(h) use best efforts to maintain TopCar’s current pricing information;
(i) obtain valid consent from Visitors to Your Site to enable you to perform the Services where required to do so by Data Protection Laws;
(j) not make any representations, warranties or other statements about us, Our Site or our Products unless expressly authorised by us to do so;
(k) not run any CSS Google Shopping activity without our specific written permission;
(l) not promote or run promotions via search campaigns across any category;
(m) not alter any of the creative or text links available through the Awin (B2C), or use hardcode banners in Your Site;
(n) not put Our Site into frames or use masked URLs;
(o) not scrape Our Site; and
(p) notify us immediately on becoming aware of any malfunctioning of the Approved URLs.
3.3. You must not bid on search terms which are variations of the brand name “TopCar” or variations of any brand owned by TopCar or sold on Our Site.
3.4. You must not purchase “TopCar” related domains.
3.5. You must add “TopCar” and common misspellings of “TopCar” as phrase match negative terms to all paid search campaigns conducted under this Agreement.
3.6. You must not engage in any of the following activities in providing the Services and in respect of Your Site:
(a) operate an illegal business;
(b) engage in any illegal activity of any kind;
(c) promote illegal content or offer or promote illegal goods or services;
(d) promote or include any content which is misleading, fraudulent, violent, abusive, hate-orientated, bigoted, violent, obscene or pornographic;
(e) place Approved URLs or any other content relating to TopCar anywhere other than on Your Site in accordance with the Agreement;
(f) modify or alter Your Site to resemble Our Site;
(g) infringe any intellectual property rights or other proprietary rights;
(h) engage in activities that dilute, blur or tarnish our trademarks or brand;
(i) use or promote any product or service that installs software or code on a user’s computer without prominent notice and express consent from the user;
(j) display Approved URLs in a way that expresses or may imply affiliation, endorsement, sponsorship or approval by us (other than as contemplated by the Agreement); and
(k) use the Approved URL or any TopCar content in a way that may create potential confusion as to who owns the Approved URL or TopCar content.
4. Pay Per Click Search Policy
4.1. You must not undertake any pay per click (“PPC”) activities in relation to TopCar without our written permission. This includes using Facebook ads, banner exchanges, revenue sharing programs or other internet marketing activities.
4.2. If you are generating traffic to your own sites, you must also abide by the following rules.
(a) You must not use “TopCar” in the sub folder of the display URL (e.g. www.[YourSite].com/ TopCar);
(b) You must not use “TopCar” in the sub domain of the display URL (eg www. TopCar.[YourSite].com);
(c) You must not use “TopCar” or a misspelling of “TopCar” in the display URL (e.g. www.topcar.com) or (www. Topcars.com);
(d) You must not use the TopCar brand in the title of your advert (although you may use the TopCar brand in the text of your advert);
(e) You must not bid on the brand term “TopCar”;
(f) You must not bid on any misspellings or extensions of the TopCar brand (eg “TopCars, top car, topcar.com”);
(g) You must not bid on TopCar brand or generic terms (eg “TopCar Used Cars”);
(h) You must not bid on the URL for our Site; and
(i) You must not show adverts for any competitor of TopCar;
Commissions
5.1. We will pay you Commission if a Visitor has consented to the use of cookies on Our Site and makes a Qualifying Transaction which has not been returned, cancelled or refunded within 30 days of the delivery date of the Product involved in the Qualifying Transaction.
5.2. Commissions will be validated within 60 days of the Qualifying Transaction and TopCar reserves the right to claim back or withhold payment of Commission where Products are returned by Visitors or where the Qualifying Transaction is otherwise cancelled by us or the Visitor.
5.3. Only Qualifying Transactions generated via topcar.co.uk will generate Commission. Commission will not be paid for any Qualifying Transaction placed on our international sites or any sales leads that are generated by Visitors.
5.4. We may decline any Commission. Reasons for declined Commissions will be provided.
5.5. Commission will not be paid if you are in breach of the Agreement.
6. Termination
6.1. If you fail to comply with any of the terms of this Agreement, we may terminate the Agreement with immediate effect and we will not be obliged to pay you for any Commission earned during the period of non-compliance.
6.2. Either party may terminate this Agreement at any time, by providing five days written notice of their intention to terminate to the other party.
6.3. Upon termination of this Agreement, you must immediately cease to provide the Services and shall not market or promote TopCar or its Products.
6.4. All rights to payment for Commission earned up to the date of termination, causes of action and any provisions which are intended to survive termination, shall survive termination of this Agreement.
7. Liability
7.1. You will indemnify us for any loss suffered or incurred by TopCar arising out of your failure to comply with the terms of this Agreement.
7.2. Nothing in these terms will restrict either party’s liability for death or personal injury resulting from negligence, fraud or fraudulent misrepresentation or any other liability that cannot be restricted by law.
7.3. Subject to clause 7.2 and any liability arising from the indemnity in clause 7.1, a party’s total liability to the other party arising out of or in connection with these terms shall not exceed an amount equal to the total Commission paid by TopCar in the relevant calendar year in which the liability arises.
7.4. Each party shall only be liable for direct losses arising out of or in connection with the terms. Neither party shall have any liability for indirect or consequential loss.
8. General
8.1. You are responsible for all content, links and activities conducted on Your Site. We reserve the right to monitor Your Site to ensure compliance with this Agreement.
8.2. You must keep any non-public information we share with you confidential. This clause 8.2 shall survive termination of the Agreement.
8.3. Each party retains ownership of all its Intellectual Property Rights that exist before the date of the Agreement.
8.4. TopCar grants you a non-exclusive, non-transferable, worldwide, royalty free licence to use the Intellectual Property Rights detailed in the Request as you may reasonably require for the purpose of delivering the Services.
8.5. Nothing in this Agreement is intended to or shall be deemed to establish any partnership or joint venture between the parties, constitute any party the agent of another party or authorise any party to enter into any commitments for or on behalf of any other party.
8.6. Any notice given to a party in connection with this Agreement must be sent by email to the email address specified in the Request and Application (as applicable). Notices are deemed to have been received at the time of transmission or, if sent outside of 9.00 – 17.00 on a Business Day, the next Business Day after transmission.
8.7. Neither party may assign or otherwise create any interest in any of its rights or obligations under this Contract without the prior written consent of the other party.
8.8. A person who is not a party to this Agreement does not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms.
8.9. This Agreement constitutes the entire agreement between the parties relating to its subject matter and supersedes anything previously passing between them relevant to that subject matter.
8.10. Each party acknowledges that, in entering into this Agreement, it does not rely on anything that is not set out in this Agreement.
8.11. The construction, validity and performance of this Agreement and all non-contractual obligations arising out of or in connection with this Agreement are governed by English law and the parties hereby irrevocably submit to the exclusive jurisdiction of the English courts to resolve any dispute between them.
