Affiliate Window terms and conditions
These are the publisher terms and conditions.
DIGITAL WINDOW LTD AFFILIATE WINDOW SERVICE MEMBERSHIP AGREEMENT
Terms & Conditions
Please read this Agreement carefully before registering and using the Service. By clicking the "I have read and accept the Affiliate Window Service Membership Agreement" box at the bottom of the signup page; you indicate your acceptance of this Agreement and its terms and conditions. If you do not accept these terms and conditions you will not be allowed to participate in the Service.
INTRODUCTION AND DEFINITIONS
1.1 This Service Membership Agreement (the "Agreement") is made between Digital Window Ltd, (Company Number 4010229) (“DWL”) and you, as user of the “Affiliate Window Service” (“the Affiliate”).
1.2 In this Agreement, the following words and expressions shall have the following meanings:
1.2.1 “Affiliate Property”: any Affiliate Website or other venues where the Affiliate has placed Links;
1.2.2 “Affiliate Website”: any website where the Affiliate has placed Links;
1.2.3 “Applicant”: an entity that wishes to become an Affiliate;
1.2.4 “Code of Conduct”: the obligations and covenants of the Affiliate detailed on the Schedule (as amended from time to time) which are a condition of the Agreement;
1.2.5 “CPA”: (cost per acquisition) the payment of a fee to an Affiliate which is contingent on a Visitor reaching a Advertiser’s Website through a Valid Click, and purchasing goods or services from the Advertiser in the Relevant Period;
1.2.6 “CPC”: (cost per click) the payment of a fee to an Affiliate which is contingent on a Visitor reaching a Advertiser’s Website through a Valid Click, regardless of whether the Visitor subsequently purchases any goods or services from the Advertiser;
1.2.7 “Links”: the hyperlink references (whether text, button, banner or any other format) from Affiliate Properties to Advertiser Websites;
1.2.8 “Advertiser”: the person or entity selling goods or services online or using the internet to raise its profile which has accordingly entered into a contract with DWL to participate in the Service;
1.2.9 “Advertiser’s Website”: any website owned or operated by the Advertiser which sells goods or services to Visitors or endeavours to raise the Advertiser’s profile;
1.2.10 “Minimum Thresholds”: in relation to CPA or CPC the sum of (if the Affiliate is paid by credit transfer) £25 or (if the Affiliate is paid by cheque) £100;
1.2.11 “Programme”: the participation of (as the case maybe) an Affiliate or Advertiser in the Service;
1.2.12 “Referer Logs”: data collated and retained by DWL that identifies the Affiliate Property which directed any particular Visitor to any particular Advertiser’s Website;
1.2.13 “Relevant Period”: the time period which will determine whether an Affiliate earns a CPA or CPC following a Visitor’s purchase from a Advertiser. The Relevant Period will be agreed, on a case by case basis, between the Advertiser and DWL;
1.2.14 “Sale”: (as the case maybe) a Visitor making a Valid Click (for CPC relationships) or a Visitor making a Valid Click and purchasing a good or service from the Advertiser within the Relevant Period which is subsequently validated by the Advertiser (for CPA relationships);
1.2.15 “Selected Venues”: the Affiliate Properties where the Applicant will, if subsequently invited to become an Affiliate, place Links;
1.2.16 “Service”: the online marketing system known as “Affiliate Window” which is provided by DWL whereby DWL introduces Affiliates to the Advertisers so that the Advertisers can increase online sales and raise their profile;
1.2.17 “Service Website”: means DWL’s extranet system which operates the Service;
1.2.18 “VAT”: Value Added Tax as referred to in the Value Added Tax Act 1994;
1.2.19 "Valid Click”: a click which a bona fide Visitor voluntarily makes on a Link within an Affiliate Property, in order to access a Advertiser’s Website. Valid Clicks only include clicks consistent with the terms of this Agreement and the Code of Conduct;
1.2.20 "Visitor": any person or entity that clicks on a Link.
1.3 In this Agreement unless the context otherwise requires, reference to:
1.3.1 the singular shall include reference to the plural and vice versa;
1.3.2 any gender shall include references to the other, and words importing a gender shall include every gender;
1.3.3 a "person" includes an individual, company, limited liability partnership or partnership;
1.3.4 a statute, enactment, order, regulation or other similar instrument shall be construed as a reference to it as from time to time amended, consolidated or re-enacted and includes all instruments or orders made under such enactment.
2.1 The success of the Service requires that DWL maintains high standards for participating Affiliates. DWL therefore vets all Affiliate applications.
2.2 DWL will decide at its discretion whether any Applicant will be permitted to become an Affiliate. DWL’s decision will be final and not subject to scrutiny or challenge.
2.3 Each Applicant must provide to DWL full details of no more than five Selected Venues. DWL will vet the Selected Venues.
2.4 Each Applicant must submit a valid credit card number and pay a £5 administrative charge to DWL. The rules governing the repayment of the administrative charge by DWL are as follows:
2.4.1 if the Applicant becomes an Affiliate, this fee will be repaid by DWL to the Affiliate when the CPA or CPCs due to be paid by DWL to the Affiliate equal or exceed the Minimum Thresholds. DWL will repay the administrative charge simultaneously with the payment to the Affiliate of the CPA or CPCs in question;
2.4.2 until the CPA or CPCs reach the Minimum Thresholds DWL shall retain the administrative charge;
2.4.3 if DWL rejects the Applicant, then DWL will retain the administrative charge;
2.4.4 the Affiliate acknowledges that if the circumstances set out in clauses 2.4.2 and 2.4.3 occur then under no circumstances will the administrative charge be repaid by DWL to the Affiliate.
2.5 Each Applicant must provide DWL with its physical address. PO boxes and other mail forwarding services are not allowed.
2.6 If the Applicant is a company or LLP, the Applicant must inform DWL of its registered office and registration number.
2.7 Applicants may only participate in the Service after attaining 18 years of age. If an Applicant has not reached the age of 18, a parent or legal guardian must give DWL his/her consent to the Applicant participating as an Affiliate.
2.8 It is each Affiliate’s responsibility to (if necessary) register with HMRC for VAT, and once registered to promptly inform DWL of its VAT registration number.
2.9 In addition to DWL approving the Selected Venues the Affiliate recognises that DWL will at all times and without reference to the Affiliate monitor the Affiliate Properties and any Links to ensure that the Affiliate is not in breach of the terms of this Agreement.
2.10 DWL may from time to time offer Affiliates the opportunity to participate in other “affiliate marketing” applications which DWL may organise. Those Affiliates which participate in such applications acknowledge that they will be bound by separate terms and conditions which pertain to the application in question. Unless such terms and conditions expressly say to the contrary the terms and conditions of the application will override the terms of this Agreement.
2.11 Each Affiliate acknowledges that DWL will (as set out in clause 5.3) generate invoices for CPC or CPAs paid by DWL to the Affiliate. The Affiliate further acknowledges that the Service can only operate on the basis that DWL (as opposed to the Affiliate itself) generates and submits the invoices. Accordingly, by continuing to participate in the Service the Affiliate acknowledges that it continues to consent to the generation of invoices by DWL which may or may not include VAT.
THE AFFILIATE’S OBLIGATIONS
3.1 An Affiliate may only place Links on its Affiliate Properties, Subject to the provisions of this Agreement, each Affiliate may at any time place and remove whatever Links it so elects.
3.2 If a Selected Venue is no longer active or is used / owned by another entity then the Affiliate will immediately inform DWL of this and provide to DWL details of an alternative Selected Venue for DWL to vet in accordance with clause 2.3.
3.3 Links must not mislead Visitors. Links may only be placed with the intention of delivering Valid Clicks.
3.4 Affiliates must not “spam” or use unsolicited email. If DWL discovers that an Affiliate is “spamming” or using unsolicited email, DWL will immediately terminate that Affiliate’s participation in the Service.
3.5 DWL will provide each Affiliate with a password which the Affiliate agrees to keep secure.
3.6 The Affiliate agrees not to select the name of another person with the intent to impersonate that person or deceive other users as to the Affiliate’s true identity.
3.7 The Affiliate agrees to provide DWL accurate, complete and non-misleading information regarding the Affiliate’s identity and practices.
3.8 The Affiliate acknowledges that DWL shall act upon any information or instructions that DWL reasonably believes comes from the Affiliate. DWL shall not be liable to the Affiliate if it transpires that such information has come from another source.
3.9 The Affiliate shall immediately notify DWL by email at firstname.lastname@example.org if:
3.9.1 the Affiliate believes that any unauthorised use has or may be made of the password referred to in clause 3.5;
3.9.2 the Affiliate suspects or is aware of any other actual or possible abuses of the Service.
3.10 The Affiliate recognises that hard coding any banner, button or Link may impact on the future accuracy of those Links. The Affiliate understands that any breach of this clause
3.10.1 lead to Visitors receiving inaccurate information with the reputation of the Service consequently being brought into disrepute;
3.10.2 entitle DWL to terminate the Agreement pursuant to clause 10.3;
3.10.3 lead to a Visitor seeking redress directly from the Affiliate.
3.11 All content that the Affiliate provides to and uses in connection with the Service must be owned by the Affiliate.
3.12 The Affiliate must ensure that it has all necessary registrations and consents to participate in the Service. This includes, but is not limited to, registration with the UK Financial Services Authority. It is the Affiliate’s responsibility to take its own independent advice as to which consents are required. DWL will not advise any Affiliate. The Affiliate covenants to adhere to any such regulatory requirements whilst participating in the Programme.
CODE OF CONDUCT
4.1 The Affiliate covenants with DWL to adhere to the Code of Conduct.
4.2 DWL reserves the right to modify and update the Code of Conduct from time to time so that the Code of Conduct reflects, to the extent possible, ethical practice in light of changing technology. DWL will place the updated Code of Conduct on the Service Website. It is the Affiliate’s responsibility to review the Code of Conduct and remain aware of such changes.
4.3 The Affiliate agrees to adhere to any additional code of conduct or terms of business which any Advertiser may require those Affiliates which participate in that Advertiser’s Programme to adhere to.
5.1 Once a Sale has occurred then (subject to the remaining provisions of this clause 5) the Affiliate will be paid a CPC or CPA by DWL.
5.2 DWL will invoice the Advertisers twice each month. Payment should be made by the Advertiser in question to DWL by the end of the month in which (as the case maybe) validation or a Valid Click occurs.
5.3 Once the Advertiser has paid DWL then DWL will prepare and send the Affiliate an invoice together with payment in respect of the CPC or CPA that the Affiliate has earned by generating the Sale. DWL will endeavour to pay the CPC or CPA to the Affiliate during the month following payment of the invoice by the Advertiser.
5.4 If DWL cannot recover monies from the Advertiser then DWL will be under no obligation to pay the CPC or CPA in question to the Affiliate.
5.5 Time shall not be of the essence regarding these payments and notwithstanding the Late Payment of Commercial Debts (Interest) Act 1998 and Late Payment of Commercial Debts Regulations 2002 interest shall not accrue on any CPA or CPC which pursuant to this Agreement are due to the Affiliate.
5.6 All statistics are collected and calculated by DWL and these will be the only valid statistics used by DWL when determining whether CPA or CPC are payable.
5.7 CPA or CPC shall not be paid to the Affiliate if the aggregate of CPA or CPC owed by DWL to the Affiliate is less than the Minimum Thresholds.
5.8 The Affiliate recognises that a Advertiser may change or discontinue CPA or CPC payments at any time. Each Advertiser is responsible for informing the Affiliate of any such changes.
5.9 If the Affiliate is registered for VAT the CPC or CPAs paid by DWL will include VAT. If the Affiliate is not registered for VAT then the CPC or CPAs will be paid by DWL excluding VAT. If DWL pays any CPC or CPAs inclusive of VAT to an Affiliate when such CPC or CPAs should have been paid exclusive of VAT then the Affiliate will on written demand reimburse DWL for the monies which were paid by DWL to the Affiliate in error which equal the VAT in question.
6.1 DWL will pass data about the Affiliates to Advertisers. The Affiliate pursuant to the Data Protection Act 1998 gives its consent for such data to be disclosed.
6.2 The Advertisers have covenanted to DWL to abide by the provisions of the Data Protection Act 1998 with regard to the personal data pertaining to the Affiliates which DWL pursuant to this Agreement discloses to the Advertisers but DWL will accept no liability for the acts and omissions of the Advertisers in this regard.
RESERVATION OF RIGHTS
7.1 DWL reserves the right to modify this Agreement at any time. Furthermore, DWL may add to, change, suspend or discontinue any aspect of the Service at any time. In either case DWL will notify the Affiliate via email, newsletter or the Service Website of such changes. On receipt of such notice, the Affiliate may immediately withdraw from the Service by giving DWL written notice. If no such notice is given to DWL within one week, then the Affiliate will be deemed to have consented to the changes.
7.2 Notwithstanding the provisions of clause 7.1 DWL may update the Code of Conduct as prescribed in clause 4.2. In such circumstances the Affiliate will not be entitled to terminate the Agreement.
7.3 DWL reserves the right to charge a monthly administrative fee if in any six month period, the Affiliate does not earn a CPA or CPC and the Affiliate does not log into or access its section on the Service Website.
7.4 If DWL discovers a breach of this Agreement, DWL may suspend the Affiliate’s participation in the Programme and/or remove or disable any Links. In such circumstances, pursuant to clause 10.3, DWL may withhold any money that would otherwise be due to the Affiliate from use of the Service prior to termination.
7.5 If a Valid Click is made to a Advertiser’s Website which has been closed or is for any other reason inaccessible, DWL reserves the right to redirect the Visitor to a suitable alternative operational Advertiser’s Website, provided that the Affiliate is associated with that alternative Programme. This will not affect the payment of any CPA or CPC.
LIMITATION OF LIABILITY AND INDEMNITY
8.1 The Service, its use and the results of such use are provided "as is" to the fullest extent permissible pursuant to applicable law. DWL disclaims all warranties express or implied, including, but not limited to, implied warranties of satisfactory quality and fitness for a particular purpose, in relation to the Service, its use and the results of such use. Without limiting the foregoing, DWL specifically disclaims any warranty
(a) that the Service will be uninterrupted or error-free,
(b) that defects will be corrected,
(c) that there are no viruses or other harmful components,
(d) that the security methods employed will be sufficient, or
(e) regarding correctness, accuracy, or reliability. The Service relies on the performance of third parties beyond DWL’s control.
8.2 DWL shall not be liable for (i) any indirect, special, incidental or consequential loss of any nature arising out of DWL’s obligations as set out in this Agreement, DWL’s negligence, the use of or inability to use the Service or any information provided on the Service Website or any other hyperlinked website, such loss will include, without limitation, damages for loss of goodwill, lost profits, business interruption, loss of software, or other data on Affiliate’s information handling system or otherwise, even if DWL has been advised of the possibility of such damages or (ii) any claim attributable to errors, omissions or other inaccuracies in the Service Website or any hyper linked website.
8.3 DWL is the neutral host of the Service and has no responsibility or liability in relation to the arrangements that are entered into with Advertisers as part of the Service. No warranty can be made as to the performance of the Advertisers or the number of Visitors that any Affiliate Website may receive.
8.4 The Affiliate may from time to time apply to Advertisers to participate in their Programmes. DWL cannot guarantee which Advertisers will accept which affiliate or what terms or what CPA or CPC the Affiliate may earn.
8.5 Nothing in this clause 8 excludes liability for fraudulent misrepresentation or death or personal injury caused by DWL’s negligence.
8.6 The Affiliate will indemnify, defend, and hold harmless DWL and its, officers, directors, employees and agents from and against any and all liability, claims, losses, damages, injuries or expenses (including reasonable legal fees) directly or indirectly arising from or relating to any matter related to this Agreement or the subject matter hereof and any dispute relating thereto.
8.7 DWL makes no representations and gives no warranties whatsoever about any other website which may be accessed through the Service. In addition, a link to a website not owned or under the control of DWL does not mean that DWL endorses or accepts any responsibility for the content or the use of such website.
DISCLOSURE AND COLLECTION OF INFORMATION AND CONFIDENTIALITY
9.1 The following information may be posted on the Service Website:
9.1.1 the Affiliate’s identity as one of the entities that has subscribed to the Service;
9.1.2 any information (other than information expressly marked as being confidential) that is disclosed by the Affiliate to DWL.
9.2 In order to enable DWL to improve, promote and/or market the Service, DWL may produce statistics or summaries relating to the use of the Service. None of this information shall identify the Affiliate.
9.3 DWL may contact the Affiliate by email, telephone or post for feedback regarding the Service.
9.4 DWL shall keep all information submitted by the Affiliate confidential except as provided within this Agreement.
9.5 The confidentiality obligations in this clause 9 shall not apply to the following information:
9.5.1 any information which comes into the recipient party’s possession (from someone other than the party disclosing the information in question) with no obligation of confidentiality attached;
9.5.2 any information which is disclosed with the prior approval of the disclosing party;
9.5.3 information which is either in the public domain or comes into the public domain through no act or omission of the party receiving the confidential information.
9.6 The Affiliate shall keep all information disclosed to the Affiliate by DWL relating to DWL’s business or affairs or the business or affairs of any Advertiser or any potential Advertiser strictly confidential unless one of the exceptions stated in clause 9.5 shall apply.
TERM AND TERMINATION
10.1 This Agreement shall commence on the date of this Agreement.
10.2 Either party may terminate the Agreement immediately if the other party is in breach of its obligations. In accordance with clause 7.4, if the Affiliate is in breach of its obligations, DWL shall be under no duty to pay to the Affiliate any CPA or CPC that that would otherwise be due to be paid to the Affiliate by DWL.
10.3 DWL may terminate this Arrangement with immediate effect on written notice if:
10.4.1 the Affiliate ceases or threatens to cease to carry on its business;
10.4.2 a receiver, administrative receiver or similar officer is appointed over the whole or any part of the Affiliate’s business or assets;
10.4.3 an application is made (in respect of an Affiliate) either for the appointment of an administrator or for an administration order, an administrator is appointed, or notice of intention to appoint an administrator is given;
10.4.4 the Affiliate makes any arrangement for the benefit of its creditors;
10.4.5 the Affiliate goes into liquidation save for the purposes of a genuine amalgamation or reconstruction.
10.5 If the Affiliate is in breach of any of the provisions of clauses 3 and 4 and a Advertiser consequently asks DWL to remove the Affiliate from that Advertiser’s Programme, then DWL will immediately suspend that Affiliate’s membership of that Advertiser’s Programme. At its discretion, DWL may permit the Affiliate to continue to participate in other Advertisers’ Programmes.
10.6 If the Affiliate accepts that if it (as a member of the Service) acts fraudulently then DWL shall terminate the Agreement and in addition to the provisions of clause 10.3 will also be under no obligation to pay any further CPA or CPC to the Affiliate.
10.7 The termination of this Agreement shall not limit the enforceability of any of the rights or obligations of the parties that accrued before the termination date.
CONSEQUENCES OF TERMINATION
11.1 Upon the termination of the Agreement, the Affiliate shall immediately remove all Links from its sites. The Affiliate shall not be entitled to receive any CPA or CPC for Sales which occur after the termination date.
11.2 Clauses 9.6, 11.3 and 11.4 shall survive the termination of this Agreement.
11.3 The Affiliate shall acquire no rights following the termination of this Agreement to use any
(1) registered or unregistered trade marks or design rights;
(2) works attracting copyright protection;
(3) domain names;
(4) any text, or images, banners created or commissioned by or for DWL or the Advertisers.
11.4 The Affiliate covenants to DWL that for the six months following the termination of this Agreement, the Affiliate will not have any commercial dealings with any Advertiser which the Affiliate has been introduced to via the Service.
12.1 This Agreement is personal to the Affiliate who shall not, without the prior written consent of DWL assign or transfer any of its rights and obligations under or arising out of this Agreement. The Affiliate consents to the assignment or delegation by DWL of its rights, benefits and duties under this Agreement and to DWL giving anyone information in connection with the proposed transfer of this Agreement.
12.2 Except as provided for in clause 7.1, all notices proceedings or other formal documents to be served by either party on the other shall be delivered by hand or by recorded delivery to the other’s address and all notices shall be deemed to be received upon delivery.
12.3 This Agreement sets out the entire agreement and understanding between the parties. No other representation or statement (excluding those which are fraudulent), whether or not in writing, shall form a term of this Agreement.
12.4 Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, labour conditions, earthquakes or any other cause which is beyond the reasonable control of such party.
12.5 Nothing in this Agreement is intended to, or shall be deemed to:
12.5.1 establish any partnership or joint venture between DWL and the Affiliate;
12.5.2 constitute any party to be the agent of another party;
12.5.3 create any arrangement whereby one party holds monies or other benefits under this Agreement on trust for the other.
12.6 This Agreement is governed and construed in accordance with the laws of England. The parties submit to the exclusive jurisdiction of the English courts.
12.7 No third party shall acquire rights pursuant to the Contracts (Rights of Third Parties) Act 1999.
CODE OF CONDUCT
This Code of Conduct (as amended from time to time by DWL) is part of the DWL Service Membership Agreement (as amended from time to time) “Agreement” and uses the same definitions.
If an Affiliate breaches these rules, then DWL may terminate the Agreement or the Affiliate’s participation in a particular Advertiser’s Programme. Pursuant to clause 10.3 of the Agreement, DWL will be under no obligation to pay any CPA or CPC to the Affiliate.
1 Content of Affiliate Website
1.1 An Affiliate may place Links on its Affiliate Properties.
1.2 The Affiliate agrees not to provide DWL with any information or material that infringes the rights of any other person (including any intellectual property rights). This includes both the unauthorized placing of any links to any website or other application owned or operated by DWL and the selection of Links which are not in keeping with the image that the Advertiser’s Website is presenting.
1.3 The Affiliate further acknowledges to at all times respect the intellectual property and other rights of DWL and the Advertisers.
1.4 Each Affiliate Website must reflect favourably on DWL and Advertisers. Affiliates agree not to provide, promote, distribute, place or otherwise publish any content which is libellous, defamatory, obscene, pornographic, abusive, or otherwise objectionable, fraudulent or violates any law. Affiliates further agree not to place Links on any websites that are pornographic (or display pornographic material or advertisements); that promote or condone violence, bigotry or hatred; or that promote any illegal activity including (but not limited to) warez, cracking, ROM or emulator sites, or hacking. As DWL is not in a position to review all information provided or used by Affiliates, each Affiliate remains solely responsible for the content of its website.
1.5 Each Affiliate Website must conform to good advertising practices. Affiliates must not support, advertise, or promote downloadable advertising software (commonly known as “adware” or “spyware”), whether by promoting those applications on any Affiliate Website or in any other way.
1.6 Affiliates must ensure that any information on the Affiliate Website which refers to any goods or services sold by any Advertiser is accurate, comprehensive and not misleading.
Manipulation of the Service
2.1 Affiliates must act ethically and reasonably in their use of the Service and their provision of Visitors to Advertisers. Affiliates must not do anything (or cause or permit anything to occur) which will cause any Advertiser to pay CPA or CPC to an Affiliate on sales made by the Advertiser which the Affiliate did not procure legitimately.
2.2 DWL will only pay CPA or CPC to an Affiliate when the Affiliate procured a Visitor who actually and intentionally accessed the Advertiser’s Website by means of a Valid Click from an Affiliate Property.
2.3 Affiliates must not use spyware, adware, malware, robots (not including link checkers), forced clicks, automatic openings, automatic cookie dropping, or cookie stuffing.
2.4 Each Affiliate is responsible for the quality and origin of the traffic it provides to the Service and to the Advertisers. Accurate and not misleading traffic origins “Traffic Data” must be immediately disclosed to DWL on request so that DWL can verify the Traffic Data disclosed against the corresponding content of the Referer Logs. Even if DWL grants an Affiliate permission to acquire traffic through third party suppliers, the Affiliate remains responsible for the quality and origin of that Traffic Data.
2.5 The Affiliate will not do anything or permit anything to happen which may lead to inaccurate or incomplete Traffic Data to (pursuant to clause 2.4 of this Code of Conduct) be disclosed to DWL.
2.6 Affiliates must not place any software on a Visitor’s personal computer which may override cookies or promote or display Links (whether “adware,” “spyware,” “shopping assistant,” “price comparison,” “reminder,” or otherwise), nor may Affiliates use any such software placed by others.
2.7 Affiliates must not purchase, license, or operate any domain name which is confusingly similar to the URL of any Advertiser’s Website.
2.8 These prohibitions are not exhaustive. If an Affiliate violates the spirit of these requirements, or if DWL otherwise regards an Affiliate’s behaviour as unethical, DWL may terminate that Affiliate’s participation in the Service and not pay CPA or CPC to the Affiliate pursuant to clause 10.3 of the Service Agreement. DWL’s decision in this regard will be final and not subject to scrutiny or challenge.