|TERMS AND CONDITIONS
These Terms and Conditions regulate Company’s business and have been established to protect the Member’s business and the Company’s best interests. The Terms and Conditions explain and regulate the relationship between each and every Coinspace Member and where the context so admit joint-Members and the Company.
In these Terms and Conditions:
• “Business” means the business opportunity to purchase the Products or Service and sell and or promote the Products or Service available to Coinspace Member and introduce others to do the same;
• “Company” means Coinspace Limited;
• “Marketing plan” means the document entitled to the Coinspace Marketing plan that sets out the financial rewards for Members;
• “Customer” means any consumer or end user of Products or Service;
• “Member” means the person, company or partnership named on the online Application Form under Join Now section;
• “Member Agreement” or “the Agreement” means the online Application Form, these Terms and Conditions, and the Marketing plan which is available on the Coinspace website, each of which documents are incorporated by reference into the Agreement;
• “Member Manual” means the manual issued to the Member, which shall contain information, procedures and guidelines in relation to the Member business and details of the Products;
• “Genealogy Reports” means the information held by the Company relating to its Members and supplied to Members, which at the Company’s option may include but is not limited to its relationships with each of its Coinspace Member, the sponsorship of each Member, the Member’s upline and downlines and historical purchasing information for each Coinspace Member and his/her Customers;
• “Coinspace” means the trading name of the Company;
• “Network” means the sales organisation of Members for the Products or Services;
• “Products” means all products and services supplied by the Company or by third parties and promoted by the Company, details of which are contained on the Coinspace website and which may be varied from time to time by the Company in its absolute discretion.
3. CODE OF ETHICS
The Members agree to conduct his/her business according to the following Code of Ethics (here and after: The Code). This Code ensures high standards of integrity and professionalism throughout the Network of Coinspace Members and protects the business image of the individual Coinspace Members as well as the overall image of the Company.
The Member promises and agrees in conducting his/her business that he/she will:
• Conduct him/herself and deal with Customers and other Members with the highest standards of honesty, integrity and fairness;
• Use his/her active and best endeavours to promote and market the Products of the Company and the Business;
• Carry on business and sales of Products in an honest, lawful and ethical manner;
• Not imply that he/she is an officer, employee or partner of the Company. The Member cannot and shall not purport or attempt to bind or contract on behalf of the Company in any manner, nor pledge the credit of or otherwise incur any liability on behalf of the Company;
• Only use information contained in official literature of the Company and on Company websites to promote the Products and the Business;
• Not accept any payment for the introduction of a potential Coinspace Member;
• Represent the Marketing plan completely and professionally to all potential Coinspace Members and without making any misleading or exaggerated income claims;
• Make estimates of earnings that are based only on reasonable predictions for what an average Coinspace Members would achieve in normal circumstances; the Members understand that Coinspace Members are not guaranteed any specific amounts of earnings and that any earnings and success will depend on the successful sale of Products and the sales of other Coinspace Members;
• Represent that past earnings in a given set of circumstances do not necessarily reflect future earnings;
• Not misrepresent the amount of expenditure that an average Coinspace Member might incur in carrying on the Business;
• Not misrepresent the amount of time an average Coinspace Member would have to devote to the Business to achieve the earnings estimated and not state that earnings are guaranteed for any individual Coinspace Member;
• Never state or infer that a Coinspace Member will build a downline organisation for anyone else;
• Never state that any consumer, business or government agency has approved or endorsed the Products or Marketing plan unless otherwise published by the Company;
• Fulfill all obligations concerned with sponsoring other Coinspace Members, including training, motivation and support;
Familiarise him/herself with and abide by these Terms and Conditions as amended from time to time and ensure that he/she at all times is operating in accordance with the most current version of the Terms and Conditions; and Familiarise him/herself with and abide by all applicable laws, common laws, regulations and statutes.
4. BECOMING A COINSPACE MEMBER
To become a Coinspace Member, the online Application Form must be completed in full and submitted by the Member (and any joint-Member). Following receipt of the e-mail confirming acceptance of the online Application Form the Member must print a copy of the hard copy Application Form and Terms and Conditions from the website, sign the Application Form and keep a signed copy for his/her own records. Upon acceptance by the Company, the Member’s details will be recorded on Company’s computer files. The Applicant must have reached the age of 18 years. The Applicant will be allocated an Member ID Number subject to successful finalisation of application procedure. This number will be recorded on the Company computer system together with the Member’s personal details. Members may not have an ownership interest in or management control of more than one Member position, whether direct or indirect or whether as an individual or joint Member. The Company may terminate or merge any positions, which in Company’s reasonable opinion are not independently engaged in active business building but are simply surrogates for other positions. The Company will accept as a Member individuals, partnerships and companies (Trading names for individuals or partnerships are permitted, subject to the prior written approval of the Company). Only one position per household will be permitted unless specific permission is obtained from the Company (except man/wife and/or partners other members of respectful household don’t have this restriction).
5. MEMBER RIGHTS
The Company grants to the Member in accordance with these Terms and Conditions the non-exclusive right and privilege to purchase, promote and sell the Products. Members are entitled to receive Company literature and other communications, to participate in Company sponsored support, service, training, motivational and recognition functions (subject to applicable charges) and to participate in promotional and incentive competitions and other Company sponsored programmes.
The Member Agreement is conditional upon acceptance of the online Application Form by the Company and will remain in effect unless or until it is terminated by the Member or the Company. The Company reserves the right in its sole discretion to accept or reject an application to register as a Coinspace Member.
6. INDEPENDENT BUSINESS RELATIONSHIP
• Members are independent contractors and are not purchasers of a franchise. The Member Agreement between the Company and its Members does not constitute an employer/employee, partnership or joint venture relationship. Members shall have no legal right or authority to bind the Company to any obligation or to make representations or warranties on behalf of the Company.
• Any verbal or written statements made by the Member, as an independent contractor, with regard to the Products and the Business must be based strictly on the written information issued by the Company, for example, on the current Company website and sales promotion literature. The Member is liable for all statements he/she may make which deviate from the aforementioned and shall indemnify the Company from any loss, damages, claims, costs (including legal fees or court costs) or fines arising from unauthorised and unjust representations made by the Members, or otherwise not complying with these Terms and Conditions.
• The Member is encouraged to determine his/her own hours of work, sales methods and sales operation provided they comply with applicable laws and regulations. The Member is responsible for payment of all expenses incurred in the running of his/her Coinspace Member business.
7. TAXES AND LICENSES
As an independent contractor the Member shall be responsible for the filing of all necessary tax returns and registering for and paying all applicable taxes due in relation to the Member’s business, if any. This shall include (but not be limited to) the obligation to make, execute or file, all reports and obtain licences (including, if applicable, VAT registration) as are required by law and/or the acquisition, receipt, holding, selling, distribution or promotion of the Products and Service. The Member shall on application to become a Member, or if he/she registers for VAT during the term of this Agreement provide to the Company immediately a copy of his/her VAT registration certificate.
8. MEMBERS SALES REPRESENTATIONS
The Member agrees to give a true and fair description of the Products and Service and the Business in all discussions with Customers, fellow Members and potential Coinspace Members. This obligation to give a true and complete representation shall include the following points:
(a) Terms and Conditions and Marketing plan
The Member shall neither mis-state nor omit any essential details regarding the Marketing plan or abuse or improperly manipulate the Marketing plan. In discussions with potential Coinspace Members, the Member will ensure that the following points are made clear:
• The Business is based on the promotion of Products and Service to Customers.
• Members will not be successful merely by sponsoring other Members without endeavouring to promote Product and Service sales themselves.
• Exclusive or undue emphasis on sponsoring is not permitted.
(b) Income Representations
The Member shall not make any exaggerated representations as to potential income to be realised by prospective Coinspace Members when presenting the Coinspace business opportunity or the Marketing plan.
(c) Product/Service Claims
The Member shall not make claims for the Products other than those found in information contained in current Company literature and Company websites.
(d) Non Disparagement
In setting a proper example for their downline, Members must not disparage other Coinspace Members, the Products, the Service, the Marketing plan, Company employees, officers, agents and any other associated persons.
It is the responsibility of the Members to ensure that he/she complies with his/her obligations under applicable consumer protection and any other respectful legislation in respect of the sale of Products and services to consumers.
10. ORDER TERMS
The Products and Services can only be ordered in accordance with the procedure set out on the Company website and other Company literature as amended from time to time.
11. PAYMENT OF BONUSES
• The Company agrees to pay the Member in accordance with the Marketing plan as amended,by the Company, from time to time. All payments shall be made by transfer to the Member’s e-wallet, bank transfer to the Members personal account or prepaid card account nominated by the Member.
• The Company will pay all sums earned by the Member within 7 business days of the end of the week of activity (end of the week meaning each respectful Friday). The payment of all monies which may become due to the Member is conditional on full compliance of this Agreement.
12. QUALIFYING FOR BONUS
In order to receive Bonuses the Member must comply with the following obligations:
• To fulfil his/her obligations regarding sponsoring of other Members and;
• To fulfil the qualification requirements as set out in the Marketing plan.
• Every Member must have and can only have one of his/her own sponsor at any given time. It is an unwritten courtesy that the prospective Coinspace Member will name as his/her sponsor the first Member who introduced him/her to the Business. However, each new Member has the right to choose his/her own sponsor. The Member shall neither unduly influence the prospective Coinspace Member nor offer as enticement exaggerated prospects with regard to possible income or business development in order to gain a new Member.
• The Company recognises as sponsor the name shown on the first Member online Application Form to be submitted and recorded in Company’s computer system. The Company has full discretion to change, decline and/or allow a specific sponsor for the respectful Member.
• If the Member sponsors other Coinspace Member, the Member must use his/her best efforts to provide, on an on-going basis, bona fide support and training of sponsored Member and his/her downline, which shall mean such activities as ongoing contact, communication, encouragement and support of his/her organisation including, but not limited to, providing information and training to sponsored Member in connection with the legislative and regulatory requirements to be complied with in the Republic of Malta and/or any other applicable regulation.
• Where the Member provides training for his/her downline relating to the Products, the Service or the Business, he/she shall ensure that all materials used in such training comply with these Terms and Conditions. Any changes made by him/her for training materials is allowed only with prior permission by the Company. The Member understands that providing payment for training does not replace the obligation on the sponsor to provide ongoing support and assistance to his/her downline.
14. INTERNATIONAL SPONSORING
Any Member in good standing with the Company can sponsor Members in other countries than the country in which the Member is registered, provided that the Company is operating in that country. In case the member is not sure the Company is operating in the respectful country he/she must check that fact with the Company prior committing any further action in such country. The newly sponsored Member will be registered in his/her country of residence and local law Member Agreements valid for the home country of the newly sponsored Member should be obtained. The Member will be responsible for making returns and payment of all applicable taxes in countries other than his/her country of registration where appropriate. Member sponsoring internationally must familiarise him/herself with the laws, regulations and the Company’s Terms and Conditions for the country in which he/she is sponsoring.
The Company reserves the right to permit international sponsorship in future foreign markets from time to time, subject to any conditions that the Company shall deem appropriate to impose.
15. SALE OF PRODUCTS AND SERVICES
• The Member shall refer all enquiries, comments and complaints relating to the Products and Service to the Company using communication channels/tools within the Company’s website.
• The Member shall not make any promises or representations to Customers or potential Customers nor give any guarantees or warranties in relation to any Products and Service other than as detailed in Company literature or expressly authorised by the Company or by this Terms and conditions, nor shall the Member admit liability or attempt to settle any Customer claims with respect to the Products and Service on behalf of the Company.
• The Member shall refrain from actively marketing, advertising or establishing any distribution facilities for the Products and Service outside countries the Company is operating in.
• The Member shall place orders in accordance with the procedure set out on the Company website and shall be responsible for the accuracy and completeness of all the orders he/she places with the Company.
• The Company reserves the right to sell Products and Service to other Members and nothing in this Agreement shall entitle the Member to any priority of supply in relation to the Products and Service as against the Company’s other Members.
• The Company reserves the right to decline any order in its entire discretion.
16. GENERAL SALES AND DELIVERY CONDITIONS
The Company shall be under no obligation to the Member or any other person to release any Products and Services to the Member or any other person unless and until the Company has received payment in full for the same.
• Service range
All packages remain subject to alteration. From receipt of order the Company reserves the right to alter the specification, design and colour of services provided that such alteration is not extreme and is reasonably acceptable to the purchaser.
All prices are in euros (€).
Payment for Product and Service orders may be made by credit/debit card or by bank transfer. The Member shall pay for the Products and Services when placing his/her order, in accordance with the payment terms set out on the Company Back Office section website.
17. TRADE MARKS
The Company has certain Trade Mark(s), trade names, slogans, symbols, and colour schemes, which are proprietary. Except for marketing materials, sample products, and advertising provided or sold to the Member by the Company, the Member shall not use or display such Trade Mark(s), trade names, slogans, symbols, and colour schemes without the Company’s prior written permission or otherwise in accordance with these Terms and Conditions.
The Member shall have no rights in respect of the Trade Mark(s) or other trade names used by the Company and he/she shall not acquire any rights in respect of the same. The Member shall promptly and fully notify the Company of any actual or threatened infringement of the Trade Mark(s) or any other intellectual property of the Company in the Products and Service or any claim that the same infringes any third party’s rights. At the request and expense of the Company the Member shall assist the Company in taking or resisting any proceedings in relation to such infringement or claim.
(i) Members may advertise the Products and Services or the Business subject to the terms of these Terms and Conditions. All advertisements must state clearly that the Member is a Coinspace Member and include the address or other contact details of the Member.
(ii) Members are prohibited from using Company Trade Mark(s), trade names, slogans, symbols, and colour schemes in advertising in a manner that would suggest or imply that they are employed by the Company.
• Literature and Sales Aids
(i) The copyright in all Company promotional materials, whether printed matter or audio-visual or electronic items, shall remain the property of the Company at all times and may not be reproduced in whole or in part either by the Member nor shall the Member permit any other persons to do so, without expressed written consent from the Company.
(ii) Members may not advertise on or through any electronic media, including but not limited to the Internet, mobile devices, mail services etc.
(iii) Members may not record or reproduce any materials from any Company corporate function event or speech without the expressed written permission of the Company.
(iv) Members may not record or reproduce or copy any presentation or speech by any Company spokesperson, representative, speaker, officer, director or other Coinspace Members without the prior written approval of the Company and the speaker.
(v) Members must not use the names of any individuals or companies connected with the Company or any Company supplier or vendor’s names in any advertising and/or promotional materials of any kind without the expressed written permission of the Company. Further, the Member may not contact directly or indirectly or speak to or communicate with any representative of any vendor, supplier, partner or manufacturer of the Company except at a Company sponsored event at which the representative is present at the request of the Company.
• Telephone Answering Messages
All Members are independent contractors. When answering the telephone or leaving a message on the answering machine, this must be done in such a manner as to avoid any possible mistaken assumption on the part of the caller that he/she is speaking directly to the Company or that the Member is employed by the Company.
• Telephone Directory Listing
Members may be listed in the official telephone directory or in any business/commercial telephone directory as follows:
Smith, Jane and John
Smith, Jane and John
All publicity material originated by Members or replies to enquiries from newspapers, magazines or any other print media must be submitted to the Company for approval prior to publication. Please allow fourteen (14) days for approval.
• Stationery and Business Cards
Any printed Member materials including business cards must indicate the statement that the Member is an independent Coinspace Member.
19. CROSS LINE SPONSORING AND POST TERMINATION
In consideration of the granting of the Member position for the duration of the Agreement and after the expiry or termination of the Agreement for a period of one hundred and eighty (180) days the Member agrees not to take or encourage any action, the purpose or effect of which would be to circumvent, breach, interfere with or diminish the value or benefit of the Company’s contractual relationships with any Members and in particular not to cross line sponsor, or (whether directly or indirectly) contact, solicit, persuade, sponsor or accept any Coinspace Member other than those personally sponsored by the Member into, or in any way promote, opportunities in marketing programmes or businesses of any direct sales company that offers competing Products and Services to the Company.
20. RETURN POLICY
The Member has the right within a period of 15 (fifteen) days, after entering into the Agreement to cancel (via Company support communication channel) the Agreement subject to return policy stipulated in Article 21.
21. PRODUCT AND SERVICE RETURN AND REFUND WITHIN FIRST 15 DAYS
Where the Member terminates the Agreement within fourteen (14) days after entering into the Agreement the Member must return to the Company any Products and Services the Member has purchased. He/She has to receive from the Company the following:
• where the Member has terminated the Agreement the price which the Member paid for the Products and Services, less
(i) a handling charge of ten per cent (10%) of the price;
• The money has to be refunded within a period of twenty eight (28) days after the written notice of termination upon receipt.
• The Member understands and agrees that all pertaining bonuses or commissions will be reduced upon request of refund.
22. COMMISSIONS CLAWBACK
The Member understands and agrees that bonuses or commissions paid within the preceding one hundred and eighty (180) days from the date of return of Products and Services returned by Members in his/her downline, may be deducted from his/her account with the Company. This amount will be itemised on the monthly statement.
23. PAYMENT OF REFUNDS
Payment of refunds will be made in the same form, as the original payment i.e. if the purchase was made on the Member’s credit card then the payment will be in the form of a credit to the credit card account.
24. DATA PROTECTION
This policy describes the Company’s duty of care, in relation to the collection and use of data, in relation to the Member with regard to the data (whether personal or otherwise) that is held by it. In this regard, the Company is committed to:
• Obtaining and processing personal data or the information constituting personal data fairly;
• Ensuring personal data is accurate and, where necessary, kept up-to-date;
• Keeping personal data for only one or more specified lawful purpose;
• Not using or disclosing personal data in any manner incompatible with such lawful purpose;
• Ensuring that personal data is adequate, relevant and not excessive in relation to such purposes;
• Not keeping personal data for longer than is necessary for such purposes;
• Taking appropriate security measures against unauthorised access or alteration, disclosure or destruction of personal data and against their accidental loss or destruction.
• The Member acknowledges that he/she has been informed by the Company that the information which he/she gives to the Company (including information relating to the Member, his/her address and other details) will be retained by the Company on a computer database and will be used by the Company for the purposes of calculating the marketing commissions payable and for the performance of the Company business. The Member also acknowledges that the Company may disclose this information, provided it is in connection with such purposes to other Members of the Company, which may be situated inside or outside the EEA and to other persons and, in particular, may disclose it to other Members as part of Company’s Genealogy Reports. The Member consents to the Company retaining, processing and disclosing the information referred to as set out above.
25. CHANGES IN MEMBER STATUS
• Change of Name
The trading name of the Member may be changed by forwarding written notification to the Company through Company Support channel. Such notification must include the consent of any joint-Member or partner.
• Line of Sponsorship
The integrity of the lines of sponsorship is fundamental to the organisation’s functionality and success. Once a Member is sponsored, the Company believes in protecting his/her relationship to the fullest extent possible. However, the following exceptions may be made at the sole discretion of the Company:
(i) By terminating the Members Agreement and remaining inactive for a period of six (6) months before re-applying under a different sponsor;
(ii) In the case of proven unethical sponsoring by the original sponsor; or
(iii) In exceptional circumstances at the discretion of the Company.
In the case of (ii) above only the Members position will be transferred with any and all downline intact.
• Separation of Joint Members and Partnerships
If Members operating their business jointly or as a partnership wish to dissolve their jointly held position or partnership or being husband and wife, wish to divorce, then the Company must be notified as to which of the former joint Members or partners will assume ownership of the Coinspace Members business as determined by agreement between the parties or by an order of a court of competent jurisdiction. A change in the ownership of the Members position will not take place until the Company receives a copy of documentation evidencing agreement between the parties as to the dissolution of their relationship or a court order. Should the party who does not assume ownership of the Members position desire to remain a Member, he/she may do so by submitting a new online Application Form. He/she shall then be accepted as a new Member at the discretion of the Company. If there is any question over the disposition of the Member business or the income from the Member position, the Company may suspend the Member position and hold all commissions and/or bonuses until the dispute over the disposition is resolved by agreement between the parties or by an order from a court of competent jurisdiction. Under no circumstances will the Company divide a downline organisation or split or apportion bonus or commission cheques or payments between joint Members or partners.
• Inherited Member Businesses
Upon the death of a Member, the rights and responsibilities of the Member are passed on to the rightful heir(s) who shall be eligible to receive all sums due or to elect to accept the Member position on the terms and conditions of the Member Agreement as if they were a party thereto or final payment of sums due (if any) under the Member Agreement. The Company reserves the right to suspend the Member position until receipt of documentation evidencing the entitlement of the heir to the deceased’s Member position.
• Incapacity of a Member
Upon the incapacity of a Member, the rights and responsibilities of the Member can be assumed by his/her attorney who may handle the Member’s affairs even though he/she may him/herself hold a Member position. The Company reserves the right to suspend the Members position until receipt of documentation evidencing the authority of the attorney.
26. BREACH OF THE MEMBERS AGREEMENT
In order to protect the integrity of the Network and the business environment in which the Company operates, the Member upon discovering or suspecting a breach of these Terms and Conditions should first discuss the problem with the Member alleged to be in breach. If this does not resolve the problem within 14 days from the discovery of the breach it should be reported to his/her upline to resolve the issue at a local level. If the matter cannot be resolved on the local level within the next 14 days from the receipt it should be reported in writing to the Company, including details of the date, location and nature of the breach and the identity of the Member alleged to be in breach. The Member alleged to have violated the Terms and Conditions will be suspended in accordance with Section 28 and required by the Company in writing, to respond to the allegations within a period of ten (10) days after the receipt through Company communication channel. On receipt of the Member’s response, the Company’s Compliance Department will investigate, review the submissions and determine what action is appropriate to be taken. Where a breach is proven or not refuted by the Member in question, this may result in a written warning, suspension or termination of the Member Agreement (see Sections 27 and 28).
The Company shall notify the Member in writing of any determination. The Member will then be allowed twenty one (21) days from the date of the notice of determination in which to appeal the determination in writing to the Company.
The Member Agreement may be terminated:
• by the Member with or without cause or reason at any time upon not less than fourteen (14) days written notice through Company communication channel; and
• by the Company forthwith for any one or more of the following grounds:
(i) the Member directly or indirectly engages in any conduct prejudicial to the business or reputation of the Company or the Products and Services;
(ii) a material breach by the Member of this Agreement which is proven or not refuted in accordance with the procedures set out in Section 26 of these Terms and Conditions;
(iii) the Member becomes bankrupt, if any judgment is entered against him/her, or if he/she makes any composition or settlement with his/her creditors; or
(iv) the Member supplies false information at any time of cooperation..
A Member who has terminated his/her Member Agreement or whose Member Agreement has been terminated by the Company must wait six (6) months from the date of termination before reapplying to become a Member. The right of a terminated Member to receive commissions or bonuses from the Company ceases immediately from the date of the termination. Furthermore, a terminated Member must stop sponsoring Coinspace Members, using Company promotional materials, Trade Mark(s), trade names, logos and colour schemes, representing him/herself as a Member or act in any way which may be adverse to the business of the Company or its Members. On termination of the Member Agreement the existing downline of the Member moves up. Notwithstanding the foregoing the Company reserves the right, following the Member’s termination for whatever reason to hold open his/her Member position. Upon termination of the Member Agreement, all Genealogy Reports in the possession of the Member shall be returned to the Company.
Except where the obligation on the Member is specified to apply after termination of the Agreement in respect of non-competition in accordance with the Agreement, the Member shall be released from all future contractual liabilities toward the Company on termination of the Agreement at any time.
The Company shall be entitled to place a Member on suspension for a maximum period of ninety (90) days. The right of a suspended Member to receive commissions or bonuses from the Company ceases immediately from the date of suspension through to the end of the suspension period. A suspended Member must cease selling the Products, Service, sponsoring Member, using Company promotional materials, Trade Mark(s), trade names, logos and colour schemes, representing him/herself as a Member or acting in any way which may be adverse to the business of the Company or its Members. At the expiration of the suspension period the Member may be reinstated to good standing with the Company and commissions paid for the suspended period as appropriate, or where the suspension is for breach of these Terms and Conditions the Agreement may be terminated in accordance with these Terms and Conditions.
29. CUSTOMER ENQUIRY PROCEDURE
In the case of enquiries made directly to the Company without reference to a Member, the Company will endeavour to ascertain whether the contact with the Company was initiated by a Member. If so, the person making such enquiry will be requested to contact the Member in question.
All details of the Products, Service and endorsements, testimonials and reports relating to them, and information relating to other Members and customers of the Company are the sole and exclusive property of the Company and may only be used in the proper promotion of the Business as provided for under these Terms and Conditions. They may not otherwise be used by the Member in any other context, whether before or at any time after termination of the Member and Terms and Conditions and all copies of the same shall be returned to the Company forthwith on termination of the Member Agreement.
The Company’s Genealogy Reports contain confidential information which is highly sensitive and valuable to the Company’s business and which shall at all times remain the sole and exclusive property of the Company. In the event that the Company shall agree to disclose details of any of its Genealogy Reports to the Member:
• the Member shall (to the extent such details are not publicly available other than by breach of these Terms and Conditions) at all times and without limit in time, treat such details as confidential information in the nature of a trade secret and shall not use, disclose or permit the use or disclosure of such details to any other person (and shall take all reasonable steps to protect and maintain the security of the information) and shall use the details solely for the benefit of the Member’s Business and of the Company and for the stated purpose for which they were provided; and
• the Member shall return immediately copies of any such information to the Company forthwith upon the termination of the Agreement for whatever reason.
“Confidential Information” means all non-public technical or business information that the Company hereto (the “Disclosing Party”) designates as being confidential and/or marked as proprietary which, under the circumstances surrounding disclosure known to the other Party hereto (the “Receiving Party”), ought to be treated as confidential or any information of such nature that a reasonable person would understand that such information is confidential. Confidential Information includes, without limitation, any information, including technical, business or commercial information, specifications, drawings, sketches, models, samples, data, computer programs, software, or documentation, in whatever form recorded or orally provided, and information received from others that Disclosing Party is obligated to treat as confidential. Confidential Information shall not include any information that: (i) is or consequently becomes publicly available otherwise than by Receiving Party’s breach of this Terms and Conditions or by breach of any legal provision; or (ii) information which was previously known by a Party free of any obligation to keep it in confidence.
The Receiving Party shall take reasonable security precautions, at least comparable to the precautions it takes to protect its own confidential information of similar nature and importance (which shall be no less than reasonable precautions), to keep confidential the Confidential Information. The Receiving Party may disclose Confidential Information only on a need-to-know basis to its and its Affiliates’ employees, officers, directors and representatives including, without limitation, counsel and consultants (collectively “Representatives”), who agree to be bound by this Terms and Conditions.
The Receiving Party shall notify the Disclosing Party immediately upon discovery of any unauthorised use or disclosure of Confidential Information, or any other breach of these Terms and Conditions by the Receiving Party, and will co-operate with the Disclosing Party in every reasonable way to help the Disclosing Party regain possession of the Confidential Information and prevent its further unauthorised use.
The Receiving Party shall return all originals, copies, reproductions and summaries of Confidential Information (prepared by or on behalf of the Disclosing Party) at the Disclosing Party’s request or after the termination of the Agreement. All documents, memoranda, notes and other writings whatsoever, including without limitation electronic copies such as e-mail and computer files, whether machine or user readable, prepared by the Receiving Party or its Representatives based on the Confidential Information shall be destroyed at the Disclosing Party’s request, and such destruction shall be certified in writing to the Disclosing Party.
Each Member acknowledges that a breach of the Confidential Treatment provisions of this Terms and Conditions will cause the Company irreparable injury for which the Company cannot be reasonably or adequately compensated in damages. The Members, therefore irrevocably agree and warrant that the Company shall be entitled, in addition to all other available remedies, and without waiver of available defences, to injunctive and other equitable relief, along with reasonable legal and other fees, such as travel and out-of pocket expenses, and management time as may be deemed proper by a court of competent jurisdiction, to prevent a breach of this Terms and to secure its enforcement.
By disclosing information to the Receiving Party, the Disclosing Party does not grant any express or implied right or license to the Receiving Party to or under the Disclosing Party patents, copyrights, trademarks, trade secrets or other proprietary information.
31. SET OFF
In addition to any other rights and remedies available to the Company, if any amount payable by the Member to the Company becomes overdue, the Member gives approval and the Company may deduct such amount from any monies due from the Company to the Member.
32. ENTIRE AGREEMENT
The online Application Form, these Terms and Conditions and the Marketing plan, each of which documents is hereby incorporated by reference into the Agreement shall constitute the entire agreement between the parties with respect to the subject matter of the Agreement and supersedes all previous agreements and representations (whether written or oral) made between the parties prior to the Member entering into the Agreement. Except as specifically provided in these Terms and Conditions in the case of conflict between these Terms and Conditions and any other document, these Terms and Conditions shall prevail.
If at any time any term or provision in the Member Agreement including these Terms and Conditions shall be held to be illegal, invalid or unenforceable in whole or in part under any rule of law or enactment such term or provision or part shall to that extent be deemed not to form part of the Member Agreement or these Terms and Conditions but the enforceability of the remainder of the Member Agreement or these Terms and Conditions shall not be affected.
34. EXCUSE FOR NON-PERFORMANCE
The Company shall not be liable for any failure of or delay in the performance of its obligations thereunder for the period that such failure or delay is due to causes beyond its reasonable control, including but not limited to acts of God, war, strikes or labor disputes, fire, death, curtailment of the Company’s usual source of supply, internet downtime, processor downtime, embargoes, government orders or any other force majeure event.
All notices to be given pursuant to the Member Agreement and the Terms and Conditions shall be given by each party by sending the notice by registered or recorded first class post or where appropriate by publication on the Company’s website, newsletter or by e-mail addressed to the Member at the last address on file with the Company or as notified from time to time.
The Company may, at any time and at its sole discretion, make alterations to the Member Manual (as amended from time to time).
37. THIRD PARTY RIGHTS
No third party which is not a party to this Agreement may enforce any terms of this Agreement under any applicable law in question.
38. NON WAIVER PROVISION
Failure of the Company to exercise any rights stated in the Member Agreement, these Terms and Conditions and other relevant documentation shall not constitute a waiver of Company’s right to demand exact compliance therewith and waiver by the Company of any breach in such documentation shall not constitute a waiver of any prior, concurrent, or subsequent breach by the Member. Any waiver by the Company must be issued in writing by the Company.
The Company may assign this Agreement or any of its rights and obligations hereunder upon its own discretion.
This Agreement is personal to the Member and neither this Agreement nor any benefit under this Agreement may, without the prior consent in writing of the Company, (which may be given on such terms as to guarantee or indemnify or otherwise as the Company thinks fit) be assigned, mortgaged, charged or otherwise disposed of.
40. GOVERNING LAW
The terms and provisions of the Member Agreement, including the Marketing plan and the Terms and Conditions and all other relevant documentation and any dispute arising thereunder shall be governed by Maltese law and the Member and the Company hereby submit to the exclusive jurisdiction of the Maltese Courts.
41. LAST AMENDMENDS
This Terms and Conditions were amended for the last time on June 26th, 2015.