| WARNING |
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| No employee, worker, consultant, agent or other representative of the Company who is not a director of the Company has any authority to bind (whether by signature, by course of dealings or otherwise) the Company to any terms relating to the payment of affiliate commission:
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| Registered affiliates will be given access to our image database and to our dedicated affiliate interface. Using the affiliate interface, affiliates can view details about transactions in respect of which commission has been earned, including the referring URL, landing URL, product(s) purchased, billing country and commission earned. The affiliate interface can be accessed at www.masterofmalt.com/affiliates/ by registered affiliates. If you require any further information regarding our affiliate scheme, please contact [email protected] |
| Please read these Terms of Business carefully. The affiliate’s attention is drawn in particular to clause 8 in connection with the limitation of the Company’s liability to the Affiliate. |
Affiliates Terms of Business
1. Interpretation
1.1 In these Terms, the following definitions apply:
- Acceptable Use Policy: the Company’s acceptable use policy, currently having the uniform resource identification www.masterofmalt.com/acceptable-use-policy/, as amended from time to time.
- Affiliate: the operator of the Affiliate Website.
- Affiliate Interface: the electronic interface provided by the Company which allows the Affiliate to track amounts payable to him pursuant to the terms of the Contract, as that interface shall be amended from time to time.
- Affiliate Web Link Pages: the web pages of the Affiliate Website which provide a hyperlink directly to the Company Website.
- Affiliate Website: the website owned and operated by the Affiliate including any future version or replacement of that website.
- Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
- Commission Rate: in respect of each Transaction, the rate set out in clause 5.1. Any rate agreed with a director of the Company on or before 30th August 2016 shall continue in force as agreed until amended and pursuant to the terms of these Terms (and Commission shall be construed accordingly).
- Company: Atom Supplies Limited, a company registered in England and Wales under company number 3193057 having its registered office at Unit 1, Ton Business Park, 2-8 Morley Road, Tonbridge, Kent, TN9 1RA and the VAT registration number GB 662241553.
- Company Assets: images, text or other content belonging to the Company forming part of the Company Website.
- Company User: a user who has clicked through directly to the Company Website from the Affiliate Web Link Pages.
- Company Website: the website owned and operated at any time and from time to time, currently having the uniform resource identification www.masterofmalt.com, and including all code, databases, software, domain names, technology and infrastructure comprising that website and all future versions and replacements of, and successors to, that website.
- Contract: the contract between the Affiliate and the Company which is calculated solely on the basis of these Terms.
- Control: the beneficial ownership of more than 50% of the issued share capital of a company or the legal or de facto power to direct or cause the direction of the general management of a company, and the expression Change of Control shall be construed accordingly.
- Cookie Period: the maximum length of time that can elapse between the introduction of a Company User and a Transaction (subject to the Transaction not resulting directly from any other interaction with an alternative affiliate website) in order for that Transaction to qualify for Commission.
- Force Majeure Event: any event beyond a party’s reasonable control, which by its nature could not have been foreseen or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, default of suppliers or subcontractors, the termination of the UK’s membership of the European Union or change in law or regulation.
- Formal Insolvency Event: any procedure connected with the inability of the relevant party to pay its debts as they fall due, in any jurisdiction, which involves negotiations or agreements with creditors; the filing of any document in connection with the winding up of that party or the management of that party’s affairs; an application to court or any formal insolvency arbiter in connection with the appointment of a manager, receiver, security holder, trustee in bankruptcy or other insolvency professional in connection with the management of that party’s affairs; the appointment of any such manager, receiver, security holder, trustee in bankruptcy or other insolvency professional; or the enforcement of any security (or steps preparatory to the enforcement of any security), not being (in any case) a spurious or unsubstantiated step or procedure which is discharged (or otherwise not upheld).
- Intellectual Property Rights: patents, rights to inventions, copyright and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
- Net Revenue: in respect of each Transaction, the gross revenue received by the Company for that Transaction, exclusive of VAT and any other tax, and after deduction of any rebate, allowance, chargeback, discount, credit or other adjustment granted, applied or allowed in relation to that Transaction, any packaging and fulfilment costs and any service fees or other charges (including in relation to payment processing) paid or payable by the Company to any third party (other than the Affiliate) in relation to that Transaction.
- VAT: value added tax chargeable under the Value Added Tax Act 1994.
1.2 In these Terms, the following rules apply:
1.2.1 references to a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
1.2.2 references to a party and references to the parties are to the Company and the Affiliate;;
1.2.3 unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular; and a reference to the masculine shall include a reference to the feminine;
1.2.4 references to a clause are references to a clause of these Terms;
1.2.5 references to a statute or statutory provision are references to that statute or statutory provision as amended, extended or re-enacted from time to time. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
1.2.6 references to writing or written include email (but not faxes); and
1.2.7 any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2. Basis of the Contract
2.1 These Terms apply to the Contract to the exclusion of any other terms that the Affiliate seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing or to any previous version of these Terms.
2.2 The request by an Affiliate to become an affiliate of the Company or creation by the Affiliate of an Affiliate Web Link Page without making such a request constitutes an offer by the Affiliate to become an Affiliate of the Company on and subject to these Terms. The offer shall only be deemed to be accepted by the Company when the Company issues logon credentials for the Affiliate Interface to the Affiliate.
2.3 No employee of the Company (who is not a director of the Company) has any authority (actual or otherwise) to negotiate any changes to the Contract or to enter into any contract with an Affiliate on any terms of business other than these Terms. No variations of or additions to or substitutions for the Contract shall be binding on the Company unless accepted in writing by a director of the Company.
2.4 The Contract constitutes the entire Agreement between the parties. The Affiliate acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Company which is not set out in the Terms.
2.5 The Affiliate acknowledges that all Transactions shall take place on and subject to the Company’s Consumer Terms of Business or Trade Terms of Business (as the case may be).
2.6 The Contract is non-exclusive and does not prevent or restrict the Company from entering into similar or different agreements with third parties. The Company makes no representation that the terms of the Contract are similar or the same as the terms of any other agreement it has entered or may enter into with any third party.
3. Company’s obligations
3.1 The Company shall be responsible for developing, operating and maintaining the Company Website and the Affiliate Interface. The Company shall be under no obligation to guarantee that the Company Website and Affiliate Interface, or any content on them, will always be available or that access will be uninterrupted.
3.2 The Company shall provide to Company Users access to and use of the Company Website in accordance with the Company’s terms of use and all other Company terms of business, policies and procedures as amended, replaced or supplemented from time to time.
3.3 The Company may at any time or times without notice to the Affiliate:
3.3.1 change the name and/or the uniform resource identification of the Company Website;
3.3.2 change the appearance, features, branding, style, get-up, functionality, structure, content, technology stack or any other features of the Company Website; or
3.3.3 target the Company Website at potential customers in such additional countries as it chooses, provided it maintains that part of the Company Website targeted at the United Kingdom.
3.4 The Company shall calculate and pay the Commission to the Affiliate in accordance with clause 5.
4. Affiliate’s obligations
4.1 The Affiliate shall use all reasonable commercial efforts to market and promote the Company Website and the products advertised for sale thereon, and to maximise the value of those Transactions so as to generate the maximum number of Transactions.
4.2 When using Company Assets, the Affiliate shall include a text link back to the relevant product page with the product name as the anchor text. The Affiliate hereby unconditionally acknowledges that the use by the Affiliate of any Company Assets shall be on and subject to the Company’s Intellectual Property Licence Terms, as amended from time to time, mutatis mutandis, save that the provisions of those terms which relate to the payment of a license fee shall not apply to the Affiliate.
4.3 When accessing the Affiliate Interface, the Affiliate must comply in all respects with the Company’s Acceptable Use Policy, as amended from time to time, mutatis mutandis.
4.4 The Affiliate shall submit to the Company before any such change takes effect any proposed use by the Affiliate of any amended or replacement name.
4.5 The Affiliate shall be responsible for developing, operating and maintaining the Affiliate Website and for all materials that appear on it. In particular, the Affiliate shall be responsible for:
4.5.1 the proper functioning and maintenance of the Affiliate Website and all Affiliate Web Link Pages;
4.5.2 compliance with the Company’s Acceptable Use Policy as amended from time to time, mutatis mutandis; and
4.5.3 compliance with all laws and regulations which are applicable to its activities under the Contract and to the conduct of its business generally.
4.6 The Affiliate shall provide to the Company within five Business Days of any request at no cost to the Company:
4.6.1 all cooperation in relation to the Contract; and
4.6.2 all access to such information as may be required by the Company, as is necessary for the proper performance of the Company’s obligations under the Contract.
4.7 The Company shall be entitled to adjust any dates for performance or delivery in circumstances where the Affiliate fails to provide such cooperation or information.
4.8 The Affiliate acknowledges and agrees that it has no authority legally to bind the Company in relation to Company Users, other users of the Company Website or anyone else, and that it has not been appointed as, and is not, the agent of the Company for any purpose. The Affiliate agrees that it shall not make to anyone any representation or commitment about the Company, the Company Website or any of the products or services available on the Company Website.
5. Charges and Payment
5.1 Subject to the provisions of this clause 5 (and subject to any other agreement between the Company and the Affiliate), the Company shall pay the Affiliate an amount equal to the Commission Rate of 6% of Net Revenue for each Transaction.
5.2 In circumstances where the total amount payable in respect of any single month pursuant to this clause 5 is less than or equal to £10, the Company shall have no liability to make any payment to the Affiliate in respect of that month. Amounts calculated in respect of any one month shall not be carried forwards or backwards in respect of any other month(s).
5.3 The Company shall have no liability to the Affiliate in respect of any Transaction which takes place after the expiry of the Cookie Period.
5.4 The Company shall have no liability to the Affiliate to the extent that any Transaction is subject to any adjustment to reflect any rebate, allowance, charge back, discount, credit or other adjustment granted, applied or allowed in respect of that Transaction (an Adjustment). In circumstances where an Adjustment is granted, applied or allowed after the date on which the Company has made a payment to the Affiliate pursuant to this clause 5, the Company shall have the right to deduct the relevant amount from subsequent amounts payable to the Affiliate on any account whatsoever.
5.5 The Affiliate acknowledges and agrees that no payments are due to it in respect of any Transaction otherwise than as expressly set out in these terms.
5.6 If an Affiliate has a VAT number, the Company shall notify that Affiliate of the amount which is payable by the Company to that Affiliate in respect of a month on or about the day which falls 15 days after the end of that month. The Affiliate shall provide a valid VAT invoice to the Company in respect of the relevant amount. The Company shall pay that invoice on or before the date which falls 30 days after the date on which it receives that invoice.
5.7 If an Affiliate does not have a VAT number, the Company shall calculate the amount which is payable by the Company to that Affiliate in respect of a month on or about the day which falls 15 days after the end of that month. The Company shall pay that amount to the Affiliate on or before the day which falls 30 days after the date of calculation.
5.8 The time of payment of any amount by the Company shall not be of the essence of the Contract. Any calculation of any amount under the Contract by the Company shall be conclusive evidence (in the absence of manifest error) of the matter to which it relates.
5.9 If any payment becomes due on a day that is not a Business Day, the due date for payment shall be extended to the next following Business Day.
5.10 Payments to be made by the Company pursuant to this clause 5 shall be paid by the Company into the bank account nominated by the Affiliate in writing to the Company from time to time.
6. Proprietary Rights
6.1 The Affiliate acknowledges and agrees that the Company and its licensors own all Intellectual Property Rights in the Company Website and all the Company’s products and services. Except as expressly stated herein, the Contract does not grant the Affiliate any rights to, or in any Intellectual Property Rights belonging to the Company. All such rights are reserved to the Company.
6.2 In circumstances where the Affiliate becomes aware of any actual, suspected or threatened infringement of any of the Intellectual Property Rights referred to in clause 6.1, or becomes aware of any claim that any of those Intellectual Property Rights infringe the rights of any third party, the Affiliate shall immediately notify the Company of the fact and circumstances of that infringement. The Company shall have exclusive control over, and conduct of, all claims and proceedings relating to the Intellectual Property Rights referred to in clause 6.1 and the Affiliate shall (at the Company’s cost) provide such information and assistance as the Company may reasonably require. The Affiliate shall not make any admissions in respect of such claims or proceedings. As between the Company and the Affiliate, the Company shall be entitled to retain all sums recovered in any claims and proceedings relating to the Intellectual Property Rights referred to in clause 6.1 for its own account.
7. Confidentiality
7.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 7.2. Neither party shall use the other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
7.2 Each party may disclose the other party’s confidential information:
7.2.1 to those of its employees, officers, representatives or advisers who need to know such information for the purposes of exercising that party’s rights or carrying out its obligations under or in connection with the Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information shall comply with clause 7; and
7.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
7.3 For the purposes of training, security and fraud prevention, the Company may record telephone conversations between representatives of the Company and the Affiliate and store correspondence between representatives of the Company and the Affiliate indefinitely.
7.4 This clause shall survive termination of the Contract, however arising.
8. Limitation of Liability
8.1 This clause 8 sets out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Affiliate:
8.1.1 arising under or in connection with the Contract; and
8.1.2 in respect of any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with the Contract.
8.2 Nothing in these Terms shall limit or exclude the Company’s liability for:
8.2.1 death or personal injury caused by its negligence or the negligence of its employees, agents or subcontractors (as applicable);
8.2.2 fraud or fraudulent misrepresentation; or
8.2.3 any other matter in respect of which it would be unlawful for the Company to exclude or restrict liability.
8.3 Subject to clause 8.2:
8.3.1 the Company shall under no circumstances whatsoever be liable to the Affiliate, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, loss of opportunity, loss of savings, loss of reputation, or any indirect or consequential loss arising under or in connection with the Contract; and
8.3.2 the Company’s total liability to the Affiliate in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the amount paid under the Contract by the Company to the Affiliate during the 12 months preceding the date on which the claim arose.
9. Termination and Suspension
9.1 The Company may terminate the Contract at any time if the Company discontinues or withdraws, in whole or in part, its affiliate marketing programme. The Company will endeavour to give the Affiliate as much notice as reasonably practicable, but any such termination will be without liability to the Affiliate.
9.2 If the Affiliate becomes subject to any of the events listed in clause 9.3, the Company may (without any liability to the Affiliate and without limiting any other rights available to the Company) terminate the Contract with immediate effect by giving written notice to the Affiliate.
9.3 For the purpose of clause 9.2, the relevant events are:
9.3.1 the Affiliate is the subject of a Change in Control;
9.3.2 the Affiliate suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business or suspends, ceases or threatens to cease or suspend the payment of its debts as they fall due or admits an inability to pay its debts as they fall due;
9.3.3 the Affiliate is subject to a Formal Insolvency Procedure; and
9.3.4 (where the Affiliate is an individual) the Affiliate dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
9.4 Without limiting its other rights or remedies, the Company may (without any liability to the Affiliate) suspend payment under the Contract, or any other agreement between the parties, if the Company reasonably believes the Affiliate is about to become subject to any of the events listed in clauses 9.3.1 to 9.3.4 inclusive.
9.5 Without limiting its other rights or remedies, if the Company considers (acting reasonably) that the Affiliate:
9.5.1 is in material breach of the Contract:
9.5.2 is in repeated or persistent breach of the Contract in such a manner as to justify the opinion that the Affiliate’s conduct is inconsistent with it having the intention or ability to give effect to the Contract,
then the Company may (without liability to the Affiliate):
9.5.3 terminate the Contract with immediate effect by giving written notice to the Affiliate; and
9.5.4 suspend any payment under the Contract or any other agreement between the Affiliate and the Company.
10. Consequences of Termination
10.1 On termination of the Contract for any reason:
10.1.1 all licenses and benefits granted under the Contract shall immediately terminate;
10.1.2 each party shall return and make no further use of any equipment, property, materials and other items (and all copies of them) belonging to the other party; and
10.1.3 the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
11. Force Majeure
If the Company is prevented, hindered or delayed in or from performing any of its obligations under the Contract by a Force Majeure Event, the Company shall not be in breach of the Contract or otherwise liable for such failure or delay in the performance of its obligations under the Contract. The time for performance of such obligations shall be extended accordingly.
12. Waiver
A waiver of any right or remedy under the Contract or law is only effective if given in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
13. Severance
13.1 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
13.2 If any provision or part-provision of the Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
14. Assignment and other dealings
14.1 The Affiliate shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Company.
14.2 The Company may at any time assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract.
15. No Partnership or Agency
15.1 Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
15.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
16. Variation
The Company shall have the right to amend these Terms from time to time. Changes to these Terms shall take effect at the time at which, following those changes, the Affiliate creates an Affiliate Web Link Page.
17. Third Party Rights
A person who is not a party to the Contract shall not have any rights to enforce its terms.
18. Notices
18.1 Any notice or other communication given to a party under or in connection with the Contract shall be sent by email.
18.2 Emails to the Company shall be sent to [email protected] and shall be deemed received when they are expressly acknowledged on behalf of the Company, are responded to by the Company or are the subject of an automated read receipt. Emails to the Affiliate shall be sent to the address notified by it to the Company from time to time and shall be deemed received when they are expressly acknowledged as received by the Affiliate, are responded to by the Affiliate or are the subject of an automated read receipt.
19. Governing law and jurisdiction
19.1 The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the law of England and Wales.
19.2 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).
Copyright in these terms belongs exclusively to ATOM Supplies Ltd.
All rights (including moral rights) are asserted and reserved.