THIS AGREEMENT is made on 27 March 2013 between:
(i) www.suttonsoap.co.uk, of Prestatyn (‘the Organisation’);and
(ii) Affiliates , of Affiliates name (‘the Host’).
DEFINITIONS AND INTERPRETATION
In this Agreement the following words shall mean:
‘Affiliate’ In relation to any company:(1) any subsidiary or holding company of the company or any subsidiary of the holding company, or(2) any other entity controlling or controlled by such company
‘Agreement’ this agreement.
‘Commission’ in respect of each sale 10.00% of the Price.
‘Customer’ a Visitor who purchases Products from the Organisation Site.
‘Effective Date’ 27 March 2013.
‘Facility’ a facility operated by a payment facility provider enabling a Customer to pay by credit or debit card or direct debit (or similar method) to buy the Products.
‘Host Site’ the site Website Address or such other current location as is agreed between the Parties from time to time.
‘IPR’ The Marks, the Logo and all copyrights (including any such rights in typographical arrangements, websites or software), database rights, source code and object code, rights in design, rights in trade marks (whether registrable, registered or otherwise), patents and rights to apply therefor, know-how and all other related rights whatsoever and in any country vested in the Organisation and in, and relating to, the Organisation Site.
‘Link’ a logged digital connection between the Organisation Site and the Host Site which is facilitated by the Organisation.
‘Logo’ the Organisation logo as notified by the Organisation to the Host from time to time enabling a visitor to the Host Site to access the Link.
‘Marks’ the word mark device any links, logo’s or images or any other device mark relating thereto and any other trade mark of the Organisation (whether registered, owned or licensed by the Organisation).
‘Organisation Site’ the website www.suttonsoap.co.uk or any other domain or sub-domain as is notified by the Organisation to the Host from time to time.
‘Parties’ the Organisation and the Host, and ‘Party’ shall be construed accordingly.
‘Price’ the price paid by a Customer in respect of any Sale, exclusive of any applicable VAT or other sales tax.
‘Products’ Our full product range and ‘Product’ shall be construed accordingly.
‘Quarter’ a period of 3 calendar months beginning on 1st January, 1st April, 1st July or 1st October.
‘Report’ a report prepared at the end of each Quarter detailing in respect of that Quarter the total number of Sales and identifying the Customers to whom such Sales were made and specifying the Commission payable (if any) to the Host.
‘Sale’ a sale of Products or a Product to a Customer as a direct result of that Customer accessing the Organisation Site via the Link.
‘Visitor’ any person accessing the Organisation Site via the Link.
‘Visitor information’ the names, email addresses, contact details and other information collected from Visitors by the Organisation.
Headings in this Agreement are for convenience only and shall not affect its construction.
References in this Agreement to clauses or schedules are to clauses and schedules of this Agreement.
Words denoting the singular shall, unless otherwise specified, include the plural and vice versa and words denoting any gender shall include all genders.
2.1. On and from the Effective Date, the Host shall provide and maintain the Link. The number, content, size, appearance and positioning of the Link and of the Logo on the Host Site shall be determined initially, and may from time to time be varied, by the Host in its absolute discretion.
2.2. The Host shall ensure that, upon using or accessing the Link, every Visitor is made aware that they are leaving the Host Site and entering the Organisation Site.
DUTIES AND OBLIGATIONS OF THE PARTIES
3.1. The Organisation shall:
3.1.1. provide and maintain the Organisation Site offering Products for sale provided that the Organisation shall be entitled in its absolute discretion to modify or withdraw the Products or any of them or to suspend the sale of the Products or any of them;
3.1.2. provide and maintain the Organisation Site offering Products for sale;
3.1.3. ensure that the Organisation Site does not contain any misleading, inaccurate, unlawful, defamatory, abusive, threatening or obscene content; and
3.1.4. not offer anything of an illegal or immoral nature.
3.2. The Host shall:
3.2.1. provide and maintain the Host Site;
3.2.2. ensure that the Host Site does not contain any misleading, inaccurate, unlawful, defamatory, abusive, threatening or obscene content; and
3.2.3. not offer anything of an illegal or immoral nature on the Host Site.
4.1. Nothing in this Agreement grants either Party exclusive rights in relation to the other Party. Either Party is entitled to enter into similar arrangements with third parties during the continuance of this Agreement.
5.1. Subject to any restrictions in law in any part of the world, the Organisation will provide the Host with Visitor information (including name, address, email address and any other relevant information) relating to:
5.1.1. Visitors accessing the Organisation Site; and
5.1.2. any disputes arising between the Organisation Site and Visitors accessing the Organisation Site;
and shall at all times ensure that it has secured the specific, express, informed and written consent, as contemplated by any applicable data protection regulations, of the Visitors to whom the Visitor information relates.
6.1. The Organisation shall:
6.1.1. Maintain a record of each Sale and, in respect of each Sale, the date of that Sale, the identity of the Customer and the amount paid by the Customer.
6.1.2. Within 20 days after the end of each Quarter, send a Report to the Host in respect of the Quarter just ended and pay the Commission in the amount specified in the Report together with any applicable VAT thereon in British Sterling.
6.1.3. Pay interest to the Host at a rate of 1.00% per annum on any balance of the Commission which remains unpaid after the 20-day period mentioned in clause 6.1.2 above.
6.2. The Host will deliver to the Organisation a receipted invoice for each amount paid in accordance with clause 6.1.2 above within 10 days of such payment being made.
6.3. In the event that either the Organisation suffers a charge-back under a Facility or refunds a Customer with the Price paid by that Customer or any part thereof, the Organisation shall advise the Host and may deduct any overpayment of Commission paid in consequence from subsequent payments of Commission.
6.4. The Organisation shall keep proper records and books of account detailing the number of Sales. Such records and books shall be kept separate from any records and books not relating solely to the Sales and be open at all times to inspection and audit by the Host (or its duly authorised agent or representative), who shall be entitled to take copies of or extracts from the same. If such inspection or audit should reveal a discrepancy between the Commission and interest payable under this Agreement and the Commission and interest paid, the Host shall immediately notify the Organisation of the discrepancy. Where such discrepancy constitutes:
6.4.1. A shortfall in the Commission and/or interest paid to the Host, the Organisation shall and reimburse the Host for such shortfall and for any professional charges incurred for such audit or inspection.
6.4.2. An overpayment of the Commission and/or interest by the Organisation paid to the Host, the Host shall reimburse the Organisation for such overpayment.
INTELLECTUAL PROPERTY RIGHTS
7.1. The Host acknowledges that the IPR is the property of the Organisation.
7.2. The Organisation hereby grants to the Host a non-exclusive, worldwide, royalty-free licence to use the IPR on the Host Site and to promote it.
7.3. Nothing herein confers upon the Host any right, title or interest in the IPR and the Host may only use such IPR as is expressly detailed in this Agreement.
7.4. The Host will not use the Marks in any way without the prior written approval of the Organisation and will not claim any right of property therein, register, cause to be registered or apply for registration of a materially similar trade mark or imitation of the Marks.
8.1. Each Party agrees to keep confidential all information concerning the business or affairs of the other.
8.2. This obligation will not apply in the case of:
8.2.1. any disclosure required by law, statute, regulation or any public stock exchange;
8.2.2. information that is already publicly available; or
8.2.3. information disclosed with the prior written consent of the Party to whom such information belongs.
8.3. Without prejudice to any other rights or remedies which may be available, the Parties acknowledge and agree that in the event of a threatened or actual breach of this clause by one Party, the other Party shall, without proof of special damage, be entitled to an injunction or other equitable (whether interim or otherwise) or any equivalent remedy for any such threatened or actual breach of the provisions of this clause in addition to any damages or other remedies to which that Party may be entitled.
8.4. The obligations of the Parties under the provisions of this clause shall survive the expiry or the termination of this Agreement for whatever reason.
9.1. Each of the Parties warrants to the other that they:
9.1.1. shall perform their respective obligations hereunder.
9.2. The Organisation warrants that:
9.2.1. it has all necessary licences, consents and permissions required for it lawfully to sell the Product;
9.2.2. the Product complies with all relevant regulations;
9.2.3. it owns or has a right to use all IPR in, and relating to, the Organisation Site; and
9.2.4. the Organisation Site complies with all applicable laws, government rules and regulations and industry codes including (without limitation) those with respect to data protection and advertising.
10. INDEMNITY AND LIABILITY
10.1. Both Parties shall indemnify and hold each other and each other’s officers and employees harmless from and against all liabilities, losses, damages, costs and expenses in relation to any claims or actions (including, without limitation, any claim in contract or tort or for defamation, obscenity or breach of privacy) relating to or arising out of either the Host Site or the Organisation Site, including but not limited to any Sale, or any breach by either Party of the terms of this Agreement.
11.1. This Agreement shall continue for an initial period of 1 year from the Effective Date and thereafter unless or until terminated by either Party giving to the other not less than 3 months’ notice in writing.
12.1. The Agreement may be immediately terminated by either Party if the other:
12.1.1. commits a breach of any of the provisions of this Agreement and, in the case of a breach capable of remedy, fails to remedy the same within 20 days after receipt of a written notice giving details of the breach and requiring the same to be remedied;
12.1.2. ceases, threatens to cease or otherwise takes steps to cease to carry on the whole or any material part of its business;
12.1.3. gives notice to any of its creditors that it has or may suspend payment;
12.1.4. is unable to pay its debts;
12.1.5. is the subject of an order or resolution for its winding up or administration (other than for solvent reconstruction or amalgamation);
12.1.6. is the subject of a bankruptcy order;
12.1.7. makes any assignment for the benefit of creditors or makes any arrangement or composition with its creditors generally;
12.1.8. has a receiver appointed for all or any part of its assets; or
12.1.9. takes or suffers any similar action in consequence of debt.
12.2. Upon termination of this Agreement for whatever reason, the Host and the Organisation shall remove the Link and the Host shall cease all use of the Logo and the IPR, including the Marks on the Host Site.
12.3. Termination of the Agreement shall be without prejudice to the rights and remedies of the Parties accrued before the termination.
12.4. All provisions expressed to survive this Agreement shall remain in full force and effect.
13. FORCE MAJEURE
13.1. Neither Party shall be deemed to be in breach of this Agreement or otherwise liable to the other Party for any delay in performance or any non-performance of any obligations under this Agreement (and the time for performance shall be extended accordingly) if and to the extent that the delay or non-performance is due to an event or circumstance beyond the reasonable control of that Party (‘an event of force majeure’).
13.2. The Party relying on clause 13.1 shall promptly notify the other Party of the nature and extent of the circumstances giving rise to the event of force majeure.
13.3. If the event of force majeure in question prevails for a continuous period in excess of 1 week after the date on which it began, the other Party may give notice to the affected Party terminating this Agreement. The notice to terminate must specify the termination date, which must be not less than 1 day after the date on which the notice to terminate is given. Once a notice to terminate had been validly given, this Agreement will terminate on the termination date set out in the notice. Neither Party shall have any liability to the other in respect of termination of this Agreement due to an event of force majeure, but rights and liabilities that have accrued prior to termination shall not be affected.
14.1. Each of the Parties shall bear its own legal, accountancy and other costs, charges and expenses connected with the negotiation, preparation and implementation of this Agreement and any other agreement incidental to or referred to in this Agreement.
15.1. A waiver of any term, provision or condition of this Agreement shall be effective only if given in writing and signed by the waiving Party and then only in the instance and for the purpose for which it is given.
15.2. No failure or delay on the part of any Party in exercising any right, power or privilege under this Agreement shall operate as a waiver of it, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise of any other right, power or privilege.
15.3. No breach of any provision of this Agreement shall be waived or discharged except with the express written consent of the Parties.
16.1. If any provision of this Agreement is or becomes invalid, illegal or unenforceable in any respect under the law of any jurisdiction, whether or not pursuant to any judgment or otherwise:
16.1.1. the validity, legality and enforceability under the law of that jurisdiction of any other provision; and
16.1.2. the validity, legality and enforceability under the law of any other jurisdiction of that or any other provision;
shall not be affected or impaired in any way thereby.
16.2. If any provision of this Agreement is held to be void or declared illegal, invalid or unenforceable for any reason whatsoever, that provision shall be divisible from this Agreement and shall be deemed to be deleted from it and the validity of the remaining provisions shall not be affected. If any such deletion materially affects the interpretation of this Agreement, the Parties shall use their best endeavours to negotiate in good faith with a view to agreeing a substitute provision as closely as possible reflecting the commercial intention of the Parties.
17.1. Any notice under or in connection with the Agreement shall be in writing and shall be delivered by hand, post or fax.
17.2. Notice shall be deemed to have been duly given:
17.2.1. if sent by post, 2 days after posting;
17.2.2. if delivered by hand, upon delivery; and
17.2.3. if sent by fax on completion of the transmission.
18.1. The rights and remedies provided for by this Agreement are cumulative with and not exclusive of any rights or remedies provided by law.
19.1. Neither Party may assign, transfer, delegate, sub-contract or otherwise deal with all or any of its rights and obligations under the Agreement without the other’s prior written consent save that either Party (being a company) may assign the benefit and the burden of this Agreement to any of its Affiliates without the prior written consent of the other Party.
19.2. This Agreement constitutes the whole agreement and understanding of the Parties as to its subject matter and there are no provisions, terms, conditions or obligations, whether oral or written, express or implied, other than those contained or referred to herein.
19.3. Nothing in the Agreement creates a partnership or the relationship of employer and employee or principal and agent between the Parties.
19.4. A party who is not a Party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
19.5. The Agreement shall be governed by and construed in accordance with the law of England and Wales and the Parties hereby submit to the non-exclusive jurisdiction of the English and Welsh courts.