AFFILIATE AGREEMENT

 

TCCHE LIMITED incorporated and registered in England and Wales with company number 08223171 whose registered office is at 110 Viglen House, Alperton Lane, Wembley, Middlesex, HA0 1HD (Company).

BACKGROUND

(A) The Company operates the Company affiliate network and the Affiliate wishes to become a member of the Company affiliate network on the terms and conditions of this agreement so that a user of the Affiliate Website clicking directly through from the Affiliate Web Link Pages to the Company Website will be entitled to receive an agreed commission on completed sales. The Company may agree that the Affiliate can sell product of the Company from their own website with an agreement funds will be transferred on set periods to be agreed in writing upon commencement of this agreement.

(B) The Affiliate wishes to either sell tickets for the events that the Company promotes or market the Companies products on the terms of this Agreement.

Agreed Terms

1. Interpretation

The definitions and rules of interpretation in this clause apply in this agreement.

Affiliate: the party with whom the Company has contracted whether it is a company, limited partnership, sole trader, charity, individual or other entity.

Affiliate Programme Manager: the person named in Schedule 1.

Affiliate Web Link Pages: the web pages of the Affiliate Website that provide a hyperlink directly to one or more Co-Branded Landing Pages or other pages of the Company Website.

Affiliate Website: Affiliate’s site located at the domain name set out in Schedule 1 and any future version or replacement of that site or if there is no site such other web address as the Affiliate may have.

Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

Co-Branded Landing Pages: the web pages (including the Welcome Page) of the Company Website that the Company is to develop and maintain.

Commission Rate: in respect of each Transaction, the rate set out at clause 4.1.

Company Programme Manager: the member of the Company’s personnel who looks after the Company’s Affiliate Programme as notified by the Company to the Affiliate from time to time.

Company Trade Mark Guidelines: the written guidelines for use of the Company’s Trade Mark, logo and branding that may apply from time to time.

Company User: a user who has clicked through to the Company Website from the Affiliate Web Link Pages.

Company Website: the Company’s website at any time and from time to time, currently called https://tcche.org and at www.tcche.org and including all databases, software, domain names, infrastructure, products and services that the Company markets for use by individual users to shop for the Company’s products and services. Company Website includes all future versions and replacements of, and successors to, the site.

Effective Date: being the date this agreement will be deemed to have commenced as evidenced by emails or other data.

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, credit or other adjustment granted or allowed in relation to that Transaction and any service fees or fulfilment or other charges, (including in relation to credit cards), paid or payable by the Company to any third party, (other than the Affiliate), in relation to that Transaction.

Pages: web pages where any purchase is made.

Transaction: a purchase of any products or services offered for sale on the Company Website by a Company User who has clicked through directly to the Company Website from the Affiliate Web Links or Pages where that purchase is completed during a single browser session.

VAT: Value added tax or any equivalent tax chargeable in the UK or elsewhere.

Welcome Page: the first of the Co-Branded Landing Pages that a Company User lands on when clicking through to the Company Website from the Affiliate Web Link or Pages.

1.1 Clause, Schedule and paragraph headings shall not affect the interpretation of this agreement.

1.2 A person includes a natural person, corporate or unincorporated body, (whether or not having separate legal personality).

1.3 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.4 Unless the context otherwise requires, words in the singular shall include the plural and in the plural, include the singular.

1.5 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

1.6 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.

1.7 A reference to writing or written includes faxes and email.

1.8 References to clauses and Schedules are to the clauses and Schedules of this agreement and references to paragraphs are to paragraphs of the relevant Schedule.

1.9 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. Company’s Obligations

2.1 The Company shall create, operate and maintain the Landing Pages.

2.2 The Company shall be permitted to use the Affiliate’s logo for the purposes of clause 2.1 solely in accordance with any reasonable written guidelines or instructions provided by the Affiliate to the Company.

2.3 The Company undertakes that the Affiliate logo link on the Landing Pages will link back directly to the home page of the Affiliate Website.

2.4 The Company shall provide the Affiliate with one or more uniform resource locators, (URLs), to link from the Affiliate Web Link Pages to the Welcome Page or other Landing Page.

2.5 The Company shall be responsible for developing, operating and maintaining the Company Website.

2.6 The Company shall provide to Company Users clicking through directly from the Affiliate Web Link Pages access to and use of the Company Website in accordance with Company’s standards terms of use and other terms and conditions, policies and procedures from time to time.

2.7 The Affiliate will have access to the Company’s Affiliate system which gives the Affiliate the ability to login and see how many clicks their links have got and how many conversions have happened.

2.8 The Company may at any time or times without notice to Affiliate:

(a) change the name of the Company Website;
(b) change the Company Trade Mark Guidelines; and
(c) target the Company Website at potential customers in such additional country or countries as it chooses, provided it maintains that part of the Company Website that is directed at the UK.

2.9 The Company shall request prior approval for any use of any Affiliate trade mark, domain name, logo or branding that the Company may wish to make. The Affiliate shall review the proposed use within a reasonable time, (being ordinarily not longer than seven days) and shall not unreasonably refuse or delay approval.

2.10 This agreement 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 this agreement are similar to or the same as the terms of any other agreement it has entered or may enter into with any third party.

3. Affiliate’s Obligations

3.1 The Affiliate shall use all reasonable commercial efforts to market and promote the Company Website and the products and services available for sale on it so as to generate the maximum number of Transactions.

3.2 The Affiliate undertakes promptly, and in any event within 14 days after the Effective Date, to submit to the Company Programme Manager for approval by the Company before publication on the Affiliate Website:

(a) the initial version of the Welcome Page;
(b) any change to the Welcome Page since the most recent version provided to the Company;
(c) the template designs for the Affiliate Web Link Pages;
(d) the first set of Affiliate Web Link Pages; and
(e) any change to any of the template designs for, or to any of, the Affiliate Web Link Pages since the versions last submitted to the Company.

3.3 The Affiliate shall be responsible for developing, operating and maintaining the Affiliate Website and for all materials that appear on it. In particular, but without limiting the generality of the foregoing, the Affiliate shall be responsible for:

(a) the proper functioning and maintenance of all hyperlinks to the Company Website;
and
(b) compliance with any Company Trade Mark Guidelines.

3.4 The Affiliate shall submit to the Company for prior approval any proposed use of any Company trade mark, domain name, logo, and other elements of branding or any image connected with persons appearing at an event that the Affiliate may wish to make. The Company shall review the proposed use within a reasonable time (being ordinarily not longer than 14 days) and shall not unreasonably refuse or delay approval.

3.5 The Affiliate shall provide the Company with:

(a) all co-operation in relation to this agreement; and
(b) 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 this agreement.

3.6 The Affiliate shall at all times while this agreement is in force have an Affiliate Programme Manager or a point of contact for the Company.

3.7 The Affiliate Programme Manager shall have the authority to contractually bind the Affiliate on all matters relating to this agreement. The Affiliate shall use reasonable endeavours to ensure as far as reasonably possible the continuity of the Affiliate Programme Manager.

3.8 The Affiliate acknowledges and agrees that it has no authority to legally bind the Company in relation to Company Users, other users or anyone else and that it has not been appointed 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 to be bought on the Company Website.

3.9 The Affiliate shall comply with all applicable laws and regulations with respect to its activities under this agreement and to its business.

3.10 In the event of any delays in the Affiliate’s provision of assistance as agreed by the parties, the Company may adjust any dates for performance or delivery provided to the Affiliate as reasonably necessary but is not obliged to extend dates beyond 7 working days.

3.11 The Company will perform its obligations under this Agreement by providing a link that will put a cookie on the user’s computer or provide an allocation of tickets to be sold.

4. Charges and Payment

4.1 The Company will pay the Affiliate at the Commission Rate in respect of Net Revenue for each Transaction in accordance with the following basis:

The Company will pay Affiliates a rate set by email once the Company has assessed their business. Standard rate will be 20% of net sum received. It is possible we may add lifetime Affiliate payouts or a standard 2 year pay-out on any user that makes a purchase that has come from an Affiliate on other products and increase the commission rate of sales over an agreed amount to reward good performance. The Company may also either sell or give affiliates tickets to sell on their own site at a certain rate that they will need to either pay in advance or 7 days prior to the event.

(4.2 A sum of 20% of the net receipts that the Company receives as a result of the introduction. A payment of 15% from such introduction will be payable on future sales to such parties in future years for up to 2 years only.)

4.3 Commission is payable on a receipt, not accruals, basis so if the Company receives no revenue on any Transaction, no commission is payable. Any tickets sold in part or in part payment may have to be canceled if full payment is not received by the date of redemption.

4.4 The Affiliate acknowledges and agrees that no payments are due to it under this agreement otherwise than as expressly set out in this agreement or in any confirmatory email.

4.5 All sums payable under this agreement are exclusive of VAT and if VAT is chargeable it shall be paid in addition or subtracted from gross sales should this be applicable. For the duration of this agreement, the Affiliate agrees to the Company invoicing the Affiliate for commission payable under a self-billing arrangement or by a remitter payment basis and the Affiliate further agrees that:

(a) It is registered for VAT and will, within 14 days of this agreement, provide the Company with its VAT registration number or it will confirm that it is not registered for VAT;
(b) For so long as the self-billing arrangement is in place, it will not raise VAT invoices for supplies made under this agreement; and
(c) It will notify the Company immediately if the Affiliate ceases to be registered for VAT, transfers its business as a going concern or becomes registered for VAT under another VAT registration number.

(4.6 The Company is an NGO and is not liable for VAT in the UK therefore any Affiliate that sells tickets on the Company’s behalf should not deduct VAT in doing so.) Please check with your accountant.

4.7 The Affiliate shall notify the Company of any change in its contact or address
details and shall duly complete all relevant forms requiring completion by any taxation or other government authority in relation to its activities under this agreement.

4.8 Those parts of the Company’s website in which such information is held shall be deemed to be correct in all respects. Except in the case of manifest error, the Company shall pay the Affiliate the amount thereby shown to be due within 30 days after the date of the report.

5. Proprietary Rights

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, this agreement does not grant the Affiliate any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences belonging to the Company. All such rights are reserved to the Company. Neither shall the Affiliate use the images or image rights of any individuals who may be contained on any of the Company’s literature to suggest any association of those personalities with the Affiliate’s brand or to suggest that they approve or have consented to their image or brand being associated with the Affiliate’s products. The Affiliate will not involve themselves with any improper use of such images. Any breach of this provision could result in an immediate termination of this Agreement.

6. Confidentiality

6.1 Each party undertakes that it shall not at any time during this agreement, and for a period of five years after termination of this agreement, 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 15.2.

6.2 Each party may disclose the other party’s confidential information:

(a) To its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 6; and
(b) As may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

6.3 No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.

6.4 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.

6.5 This clause 6 shall survive termination of this agreement, however arising.

7. Indemnity

Each party shall indemnify the other party against all liabilities, costs, expenses, damages and losses, (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses), suffered or incurred by the beneficiary of the indemnity arising out of or in connection with the indemnifier’s website, (being the Company Website or the Affiliate’s website or other offering platform as the case may be), or the marketing or sale of products or services on that website, provided that:

(a) The indemnifier is given prompt notice of any such claim;
(b) The beneficiary provides reasonable co-operation to the indemnifier in the defence and settlement of such claim, at the beneficiary’s expense; and
(c) The indemnifier is given sole authority to defend or settle the claim.

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:

(a) Arising under or in connection with this agreement; and
(b) In respect of any representation, misrepresentation, (whether innocent or negligent), statement or tortious act or omission, (including negligence) arising under or in connection with this agreement.

8.2 Except as expressly and specifically provided in this agreement, all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement.

8.3 Nothing in this agreement excludes the liability of the Company:

(a) For death or personal injury caused by the Company’s negligence; or
(b) For fraud or fraudulent misrepresentation.

8.4 Subject to clause 8.3:

(a) The Company shall not be liable whether in tort, (including for negligence or breach of statutory duty), contract, misrepresentation, (whether innocent or negligent), restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss costs, damages, charges or expenses however arising under this agreement; and
(b) The Company’s total aggregate liability in contract, (including in respect of the indemnity in clause 7), tort (including negligence or breach of statutory duty), misrepresentation, (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to £1,000 or the amount paid under this agreement by the Company to the Affiliate during the 12 months preceding the date on which the claim arose.

9. Duration and Termination

9.1 This agreement shall commence on the Effective Date and shall continue for the period of two years, unless otherwise terminated as provided in this clause 9. After two years, this agreement shall automatically renew for yearly periods, unless either party notifies the other, in writing, at least 90 days before the end of the then current term.

9.2 The Company may terminate this Agreement on notice at any time if it discontinues or withdraws, in whole or in part, its affiliate marketing programme. The Company will endeavour to give Affiliate as much notice of the same as reasonably practicable, but any such termination will be without liability to Affiliate.

9.3 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate this agreement without liability to the other if:

(a) The other party commits a material breach of any term of this agreement which breach is irremediable or, (if such a breach is remediable), fails to remedy that breach within a period of 30 days after being notified in writing to do so;
(b) The other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or, (being a company or limited liability partnership), is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
(c) A petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party, (being a company), [other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party];
(d) An application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party, (being a company);
(e) An application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party, (being a company);
(f) The holder of a qualifying floating charge over the assets of that other party, (being a company), has become entitled to appoint or has appointed an administrative receiver;
(g) A person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party;
(h) A creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within [14] days;
(i) The other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors [other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party];
(j) The other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
(k) There is a change of control of the other party within the meaning of section 1124 of the Corporation Tax Act 2010; or
(l) Any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 9.3(b) to clause 9.3(k) (inclusive).

10. Consequences of Termination

On termination of this agreement for any reason:

(a) All licences and benefits granted under this agreement shall immediately terminate;
(b) 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
(c) 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

Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances, the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for six months, the party not affected may terminate this agreement by giving 30 days’ written notice to the affected party.

12. Waiver

No failure or delay by a party to exercise any right or remedy provided under this agreement 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. Rights and Remedies

The rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

14. Severance

14.1 If any provision or part-provision of this agreement 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 this agreement.

14.2 If one party gives notice to the other of the possibility that any provision or part-provision of this agreement 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.

15. Entire Agreement

15.1 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

15.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty, (whether made innocently or negligently), that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation [or negligent misstatement] based on any statement in this agreement.

15.3 Each party agrees that the only rights and remedies available to it arising out of or in connection with a Representation shall be for breach of contract as expressly provided in this agreement.

15.4 Nothing in this clause shall limit or exclude any liability for fraud.

16. Assignment and Other Dealings

16.1 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 this agreement without the prior written consent of the Company.

16.2 The Company may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under this agreement.

17. No Partnership or Agency

Nothing in this agreement 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, nor authorise any party to make or enter into any commitments for or on behalf of any other party.

18. Variation

No variation of this agreement shall be effective unless it is in writing and signed by the parties, (or their authorised representatives).

19. Third Party Rights

A person who is not a party to this agreement shall not have any rights under the Contracts, (Rights of Third Parties), Act 1999 to enforce any term of this agreement.

20. Notices

20.1 Any notice or other communication given to a party under or in connection with this agreement shall be in writing and shall be:

(a) Delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office, (if a company) or its principal place of business (in any other case); or
(b) Sent by email to its main email address that is info@tcche.org with a confirmation of receipt or delivery report to be received where possible.

20.2 Any notice or communication shall be deemed to have been received:

(a) If delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
(b) If sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; or
(c) A notice given under this agreement is not valid if sent by email.

21. Governing Law

This agreement and any dispute or claim, (including non-contractual disputes or claims), arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with, the law of England and Wales.

22. Jurisdiction

Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim, (including non-contractual disputes or claims), arising out of or in connection with this agreement or its subject matter or formation.

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