Terms of Service: Rate Management System

1. General

1.1 These Terms of Service set out the terms and conditions on which Skimbit Ltd (a company registered in England and Wales with number 06347796 and its registered office at Aldgate House, 2nd Floor, 33 Aldgate High Street, London EC3N 1DL, United Kingdom) (“Skimlinks”) provides the RMS Service to Merchants.

2. Background

2.1. The Merchant markets its goods and/or services via affiliate links appearing on the websites of Skimlinks Publishers (the “Affiliate Links”).

2.2. The Merchant pays commission (on a CPA or CPC basis) for visitors to the Merchant website identified as having navigated the Affiliate Links.

2.3. The Affiliate Networks are responsible for the tracking of affiliate link traffic and for calculating and billing the Merchant for the Base Commission.

2.4. The Merchant wishes to offer a higher commission rate to certain Skimlinks Publishers to encourage them to deliver more traffic to the Merchant websites.

2.5. Skimlinks will track the affiliate link traffic eligible for the Uplift Percentage, calculate the total Commission Uplift and bill the Merchant accordingly.

3. Definitions

“Agreement”	The agreement between Skimlinks and the Merchant which is created upon Skimlinks issuing e-mail notification to the Merchant that the rate Uplift Percentage has been accepted and processed.
“Affiliate Network”	An entity providing an affiliate marketing service on behalf of multiple Merchants and responsible for tracking, calculating and billing the Base Commission.
“Affiliate Network Bonus Mechanism”	The mechanism offered by Affiliate Networks for a Merchant to make manual payments to publishers.
“Base Commission”	The affiliate commission calculated and billed to the Merchant by the relevant Affiliate Network.
“Base Commission Rate”	The commission rate set with the Affiliate Network use to calculate the Base Commission.
“Commission Uplift”	The additional commission, calculated by Skimlinks by the RMS Service and billed to the Merchant.
“Merchant”	A supplier of goods and/or services who is entitled to use the RMS Service under these Terms of Service.
“Publisher”	A person or other entity who is entitled to access and use the Skimlinks content monetisation services.
“RMS Service”	The service by which Merchants can offer a variable commission rate to different Skimlinks Publishers, above Base Commision Rate applied by Affiliate Networks.
“Uplift Percentage”	The percentage commission rate uplift agreed by the Merchant to apply to traffic from one or more Skimlinks Publishers, used to calculate the Commission Uplift.

4. The RMS Service

4.1. Skimlinks and the Merchant agree the Uplift Percentage will be applied to commission generated from links appearing on designated Publisher websites within the Skimlinks Publisher network.

4.2. Skimlinks will apply the Uplift Percentage to specified Base Commissions in order to calculate the Commission Uplift chargeable to the Merchant.

4.3. Skimlinks will associate each Commission Uplift with a particular Base Commission, such that if the underlying Base Commission is modified or cancelled by the Affiliate Network, Skimlinks will likewise modify or cancel the Commission Uplift.

4.4. Skimlinks may, at its discretion, cancel or reduce any Commission Uplift amount which has not yet been paid to Skimlinks by the Merchant.

4.5. The Merchant may amend or cancel the Uplift Percentage at any time by e-mailing their designated Skimlinks account manager and any change will take effect upon Skimlinks issuing a confirmatory e-mail to the Merchant. Such changes will not have retrospective effect and any amounts calculated and accrued to the date of amendment will be billable to the Merchant in accordance with section 5 of this agreement.

4.6. Should the total Commission Uplift for a calendar month be less than $150 (or equivalent amount in the relevant operative currency), Skimlinks reserves the right to cease provision of the RMS Service and retrospectively cancel the Commission Uplift for the relevant month.

5. Billing and Payment

5.1. Skimlinks will provide the Merchant with a schedule of total Commission Uplift generated within an individual calendar month 45 days after the end of the relevant month.

5.2. The Merchant will process payment for the total Commission Uplift via the relevant Affiliate Network Bonus Mechanism within 15 days of receipt of the monthly schedule.

5.3. The Merchant will add such tracking information to the bonus payment as is specified by Skimlinks to allow reconciliation of the payment amount.

5.4. The Commission Uplift is exclusive of UK value added tax (VAT) or any other applicable sales tax, which may be added by the Affiliate Network as appropriate.

5.5. Skimlinks’ payment of the Publisher share of the Commission Uplift will be conditional upon receipt of the Commission Uplift from the Merchant.

6. Term and Termination of the Agreement

6.1. The Agreement will commence when Skimlinks notifies the Merchant in accordance with these Terms of Service that the Merchant’s RMS Service arrangement is in place and, unless terminated earlier in accordance with clause 6.2, will continue until either party gives the other party written notice of termination at any time via email. Notices to Skimlinks should be sent to rms@skimlinks.com. Notices to the Merchant will be sent to the email address provided by the Merchant on setup of the RMS Service arrangement.

6.2. Either party may terminate the Agreement with immediate effect if:

6.2.1. the other party becomes bankrupt, insolvent or unable to pay its debts in accordance with Section 123 of the Insolvency Act 1986; or

6.2.2. the other party is in breach of any material term of the Agreement and, in the case of a breach capable of remedy, has failed to remedy such breach within three (3) days of having been notified in writing of such breach.

6.3. On termination of the Agreement:

6.3.1. Skimlinks will immediately suspend the Merchant’s RMS Service and cease applying the Uplift Percentage to Base Commission amounts.

6.3.2. Any Uplifted Commissions calculated and accrued before the date of termination will remain payable by the Merchant to Skimlinks and will be billed accordance with section 5 of these Terms of Service.

7. License

7.1. All intellectual property rights subsisting in, relating to or arising out of the RMS Service (or any part thereof) shall at all times be owned by and vest in Skimlinks, including all developments or enhancements to the RMS Service (or any part thereof). The Merchant agrees that the Agreement does not transfer or grant any right, title or interest in Skimlinks’ intellectual property rights in the RMS Service (or any part thereof) to the Merchant.

7.2. Skimlinks grants to the Merchant a non-exclusive, non-transferable, non-sublicensable, revocable, worldwide, licence to use the RMS Service during the term of the Agreement.

7.3. The Merchant shall not be entitled to use the RMS Service in any other way other than as set out in the Agreement. Any attempt to interfere with the operation of the RMS Service (or any part thereof) will constitute a breach of the Agreement.

8. Assignment

8.1. The Merchant may not assign or otherwise transfer its rights and/or obligations under the Agreement, whether in whole or in part.

9. Communication

9.1. Any notice under the Agreement shall be in writing and shall be made either via e-mail or certified mail to the other party’s registered office address. Notices sent by e-mail will be deemed effective 24 hours from the time of sending and notices sent by mail will be deemed effective 48 hours after posting.

9.2. Skimlinks may disclose its relationship with the Merchant in its marketing material (including its website(s)) and in its operational relationship with Affiliate Networks and Publishers, including using for such purposes the Merchant’s name and trademarks.

9.3. The Merchant agrees that Skimlinks may use the Merchant’s contact details (including its email and registered address) to notify it about its account with Skimlinks, any issues relating to, and updates to, the RMS Service, and any modifications to the terms of the Agreement.

10. Modifications

10.1. Skimlinks may modify all or any part of this Agreement, at any time and at its sole discretion, effective immediately upon e-mail notice sent to the Merchant. Continued participation in the RMS Service after receiving notice of such modification will constitute the Merchant’s unconditional acceptance of the modification to this Agreement.

11. Indemnity

11.1. The Merchant shall indemnify, defend and hold harmless Skimlinks against all losses, liabilities, damages and costs (including legal expenses) sustained, incurred or suffered by Skimlinks as a result of any claim, action or proceeding that: (i) the Merchant infringes or is alleged to have infringed the intellectual property rights of any third party; (ii) the Merchant is in breach of its obligations under the terms of the Agreement; or (iii) any third party claims arising from the Merchant’s use of the RMS Service otherwise than in accordance with the terms of the Agreement.

12. Liability

12.1. Except as expressly and specifically provided in the Agreement, all warranties, conditions, representations and other terms of any kind, whether express or implied, are, to the fullest extent permitted by law, excluded from the Agreement. In particular (but without prejudice to the generality of the foregoing), Skimlinks makes no express or implied warranties or representations with respect to the operation or availability of the Service. Skimlinks will not be liable for the consequences of any interruptions to or errors in the RMS Service.

12.2. Skimlinks shall not be liable for: loss of profits; loss of business; depletion of goodwill or similar losses; loss of anticipated savings; or loss of goods; or loss of use; or loss or corruption of data or information; or any special, indirect, consequential or pure economic loss (whether or not falling in any of the foregoing categories), costs, damages, charges or expenses.

12.3. Subject to clauses 12.1 and 12.2, Skimlinks’ total aggregate liability under or in connection with the Agreement, whether for breach of contract, tort (including negligence), misrepresentation or otherwise, shall be limited to an amount equal to total Uplifted Commission during the year preceding the date on which the claim arose.

12.4. Nothing in the Agreement excludes the liability of either party for any other liability which cannot be excluded under applicable law, including fraud, fraudulent misrepresentation, or death or personal injury caused by either party’s negligence.

13. Force Majeure

13.1. 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).

14. Entire Agreement

14.1. The Agreement constitutes the whole agreement between the parties relating to its subject matter and supersedes any prior drafts, agreements, undertakings, representations, warranties and arrangements of any nature, whether in writing or oral, relating to such subject matter save that this clause shall not exclude liability for any fraud or fraudulent misrepresentation of a party.

15. Governing Law and Jurisdiction

15.1. The Agreement shall be governed by, and construed in accordance with, the laws of England and Wales. In relation to any legal action or proceedings to enforce the Agreement or arising out of or in connection with the Agreement each of the parties irrevocably submits to the non-exclusive jurisdiction of the courts of England and Wales.