1. DEFINITIONS
1.1 In this Agreement the following words and expressions shall have the following meanings:
Partner Website means the Partner website provided by the Company and more particularly described in clause 6;
Call Centre means the call centre to be provided by the Company in accordance with clause 5;
Catalogue means the seasonal sales catalogue to be produced by the Company in accordance with clause 4;
Commission means the commission to be paid by the Company to the Partner in accordance with clause 8;
Donation means a donation made by the Supporter to the Partner via the Website, Call Centre or by mail order less the Company’s fee as set out in clause 9.2;
Initial Term means 12 months;
Services means the provision of the Catalogues and the Call Centre;
Supporters means the Partners supporters as set out in the Partner’s own database;
Subscription Fees means the quarterly subscription fees to be paid in accordance with clause 7;
Website Linking Licence means the licence granted under clause 3.1.
1.2 A reference to any gender shall include the other.
1.3 The singular shall include the plural and vice versa.
2. SERVICES
In consideration for payment of the Subscription Fees by the Partner under this Agreement the Company will during the term of this Agreement grant the Website Linking Licence, provide access to the Partner Website, provide the Services to the Partner and pay the Commission and the Donations.
3. WEBSITE LINKING
3.1 The Company grants to the Partner a non-exclusive, limited, revocable licence to provide a hypertext reference link to the initial, top-level display of the Company’s sales website which is identified by the Uniform Resource Locator [www.justwhatiwanted.uk.com] (the “Website” and the “Website URL” respectively) for the purpose only of linking the Partner's own website to the Website (the “Link”).
3.2 The Partner acknowledges that the Website (including without limitation, all content, text, images, software, media and other materials on the Website) is proprietary to or licensed by the Company, protected under copyright and may not be reproduced, transmitted, displayed, published or distributed without the express prior written consent of the Company.
3.3 The Company grants the Partner a non-exclusive, limited, revocable licence to use trade marks of the Company solely for the purpose of creating and describing the Link.
3.4 The Partner shall properly and accurately display the trade marks of the Company in connection with any display and description of the Link on the Partner's own website.
3.5 The Partner shall not:
3.5.1 in any way reproduce the Website or any part of its contents other than to the extent permitted in this clause 3;
3.5.2 in any way suggest that the Company is endorsing any products or services other than its own;
3.5.3 misrepresent the relationship between the Partner and the Company nor present any other false information about the Company;
3.5.4 except as provided for in this clause 3, use any of the Company's trade marks without express written permission from the Company;
3.5.5 display or use a Link in a manner that causes the Website or any portion of its content to display within a frame, be associated with any advertising or sponsorship not part of the Website or otherwise incorporate Website content into a third party website;
3.5.6 display or use an inline link to any information file contained in the Website;
3.5.7 alter, block or otherwise prevent display of any content of the Website;
3.5.8 link to the Website other than through the Website URL or through any mirrored website;
3.5.9 link to the Website if the Partner's own website may reasonably be considered to be obscene, defamatory, harassing, offensive or malicious, or if the Partner's own website infringes any third party rights or otherwise does not comply with all applicable laws or regulations.
3.6 The Partner acknowledges that where the Partner is a charity that the Company may be required under the Charities Act 2006 to make a Solicitation Statement on the Website and on the Catalogues.
4. CATALOGUES AND MAIL ORDER
4.1 The Company will produce seasonal sales Catalogues four times a year and will accept and process mail orders from the Catalogues.
4.2 The Company will print one Catalogue for each of the Partner’s Supporters as notified to the Company by the Partner in accordance with clause 7.2 and will deliver the Catalogues to the Partner.
4.3 The Partner will distribute the Catalogues to all their Supporters within 30 days of receiving them from the Company and will keep a record of the date that each Supporter was sent or given their Catalogue, such record will be open to inspection by the Company on reasonable notice.
4.4 In the event that the Partner fails to send by post all or some of the Catalogues to their Supporters within 30 days of receiving them then the Partner shall pay the Company a sum of £1.00 for each catalogue that is not sent by way of liquidated damages. For the purposes of this clause a Catalogue is deemed not to have been sent if the Catalogue is sent to the same Supporter more than once. The parties confirm that this sum represents a genuine pre-estimate of the loss that the Company would suffer in this event.
4.5 The Partner acknowledges that the Catalogues (including without limitation, all content, text, images, software, media and other materials in the Catalogues) is proprietary to or licensed by the Company, protected under copyright and may not be reproduced, transmitted, displayed or published without the express prior written consent of the Company and may only be distributed to the Partner’s Supporters.
4.6 The Partner agrees not to add to, delete, alter or change the contents of the Catalogues without the express written consent of the Company.
4.7 The Partner shall not make or give any promises, warranties, guarantees or representations concerning any of the products or services contained in the Catalogue except for those contained in the Catalogue.
4.8 The Partner will promptly inform the Company in writing of any complaint or after sales enquiry concerning goods or services purchased by a Supporter through the Catalogue, Call Centre or the Link.
4.9 The Company reserves the right to decline to accept any order received from a Supporter.
5. CALL CENTRE
5.1 The Company will provide an inbound call centre for Supporters to make orders and raise queries in relation to the Catalogue and/or the Website or any order they have made.
5.2 The Company will maintain such number of telephone connections as reasonably required and shall ensure that they are properly staffed during normal business hours.
5.3 The provision of the Call Centre may be prevented due to events beyond the Company’s control but in such cases the Company will use reasonable endeavours to restore the Call Centre as soon as possible and will not be liable to the Partner.
6. PARTNER WEBSITE
6.1 The Company will provide the Partner with access to the Company’s Partner Website (“Partner Website”) via the internet.
6.2 The Partner will be provided with their own unique log on and password in order to access the Partner Website.
6.3 The Partner Website will enable the Partner to track sales of products to Supporters who have connected to the Website via the Link or have made Catalogue orders by mail or through the Call Centre (provided that the Supporter has nominated the Partner) and to monitor Commission due.
6.4 The Company does not warrant in any way that data or other materials or information provided on the Partners Website will at any given time be correct and the Company will not be liable for any reliance placed on the Partner in relation to such data.
7. SUBSCRIPTION FEES
7.1 The Partner shall pay to the Company the quarterly Subscription Fee plus VAT in advance for granting the Website Linking Licence, providing access to the Partner Website, providing the Services and paying the Commission and Donations.
7.2 The Partner will notify the Company upon signing this Agreement of the number of Supporters details they hold on their database and will keep the Company updated of any increase or decrease in numbers.
7.3 The Subscription Fee is based upon the number of Supporters notified to the Company in accordance with clause 7.2 and will be £149.00 per quarter for up to 500 Supporters plus £75 per quarter for every additional 500 Supporters.
7.4 The Subscription Fees under this clause are non refundable.
7.5 For the purposes of this clause 7 the following shall be quarter periods:
• 25 March – 23 June
• 24 June -28 September
• 29 September – 24 December
• 25 December – 24 March
7.6 The Subscription Fees are stated exclusive of any VAT which will be added where chargeable.
7.7 The Company reserves the right to increase the Subscription Fee by giving the Partner written notice of any such increase two months before the proposed date of the increase. If such increase is not acceptable to the Partner, it may, within 14 days of such notice being received, terminate this Agreement by giving one months written notice to the Company.
8. COMMISSION
8.1 The Company shall pay Commission to the Partner on sales of products and services to Supporters who are referred to the Company either via the Link or the Catalogues.
8.2 The Commission will be up to 50% of the net profits in respect of the sale of products or services to Supporters who have purchased from the Company through the Website, the Call Centre or by mail order.
8.3 Payment of Commission will be made to the Partner within approximately 30 days of the end of the calendar month during which the Supporter’s order was processed.
8.4 In the event that a Supporter returns a product and a refund is issued, the Company will be entitled to be reimbursed for such Commission already paid to the Partner in respect of such product by either deducting it from the next payment of Commission due to the Partner or by requiring the Partner to reimburse the Company within 30 days of invoice.
8.5 The Commission will only be payable if the Supporter makes an order via the Link to the website or by mail order or where the Supporter nominates the Partner when making an order through the Call Centre or direct via the Website (without using the Website Link) and the Company therefore accepts no liability for any loss suffered by the recipient due to a Supporter choosing a different recipient.
8.6 No Commission shall be payable in respect of any payment received by the Company which is made by the fraudulent/criminal use of a credit card.
9. DONATIONS
9.1 A Supporter will be able to make a donation to the Partner via the Website, the Call Centre or by mail order.
9.2 The Company will charge a fee of 30% (plus any applicable taxes) of the amount of each donation.
10. COMPANY PRODUCTS AND SERVICES
All sales by the Company to Supporters are transactions between the Company and the Supporter. The Company will be responsible for all obligations to the Supporter in relation to such sales.
11. CONNECTIVITY
11.1 The Website and Partner Website is accessible from Microsoft Explorer, the Company does not guarantee access from any other browsers and it is the Partner’s responsibility to ensure that they have adequate browsers and secure broadband access to the Partner Website.
11.2 The Company will on occasion need to prevent access to the Website and the Partner Website or to take down the service in order to carry out maintenance work and other works as it may deem necessary but will use reasonable endeavours to give at least 7 day’s notice via the Partner Website of such planned maintenance.
11.3 Access to the Website and Partner Website may be prevented due to events beyond the Company’s control but in such cases the Company will use reasonable endeavours to restore the Website and/or the Partner Website as soon as possible.
11.4 The Company will not be liable to the Partner if access to the Website or Partner Website is unavailable at any time.
12. DATA PROTECTION
12.1 The Partner confirms that it has obtained the consent of any individual whose personal data is disclosed to the Company by the Partner.
12.2 The Partner agrees to indemnify the Company in respect of all losses, costs, claims, demands and expenses they may incur as a result of any breach of clause 12.1 by the Partner.
13. LIMITATION OF LIABILITY
Nothing in this Agreement shall operate to exclude or limit either party's liability for death or personal injury caused by its negligence but subject thereto the Company excludes all liability whatsoever in respect of all claims, whether in contract or tort (including negligence) or otherwise, arising out of or in connection with the content of the Website and/or the Partner Website, the Catalogues (as defined in clause 7), this Agreement or any other collateral agreement, for any loss or damage directly or indirectly incurred, including, without limitation, for any loss of profit, anticipated profits, revenues, anticipated savings, goodwill or business opportunity, or for any other indirect or consequential loss or damage.
14. LATE PAYMENT
14.1 If the Partner fails to make any payment under this Agreement by the due date for payment, then the Company may charge interest on the overdue amount at the rate of 2% per annum above [ ] Bank plc base lending rate from time to time. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment.
14.2 If the Partner fails to make any payment under this Agreement by the due date for payment, then the Company reserves the right, at their sole discretion, without notice to the Partner, to suspend the performance of their services under this Agreement until payment and any interest due pursuant to clause 14.1 above is received.
14.3 The Company may set off against the Commission and Donations any amounts due from the Partner.
15. TERMINATION
15.1 Either party may terminate this Agreement for any reason whatsoever by giving three month’s written notice at any time, such notice to expire at any time after the end of the Initial Term, without prejudice to any rights accrued under this Agreement.
15.2 Without prejudice to any other rights or remedies which the Company may have, the Company may terminate this Agreement without liability to the Partner on giving written notice to the Partner if:
15.2.1 the Partner fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than fourteen days after being notified in writing to make such payment; or
15.2.2 the Partner commits a material breach of any of the terms of this Agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of being notified in writing of the breach; or
15.2.3 the Partner repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement; or
15.2.4 the Partner goes into liquidation, other than a members' voluntary liquidation for the purposes of reconstruction or amalgamation of a solvent company where the reconstructed or amalgamated company assumes the obligations of the liquidated company;
15.2.5 an administration order is made against the Partner;
15.2.6 a receiver or manager is appointed in respect of the Partner's affairs or the whole or any part of its property or undertaking;
15.2.7 the Partner enters into any arrangement or composition with creditors, including for the avoidance of doubt any voluntary arrangement within the meaning of the Insolvency Act 1986 Part I or Part VIII; or
15.3 Upon the termination of this Agreement, the Partner shall immediately:
(a) discontinue or disable the Link;
(b) remove the Link and the Company's name, logos and trademarks from the Partner's website; and
(c) destroy any copies of material from the Website which are in the Partner's possession, custody or control; and
(d) return at their cost all Catalogues in their possession.
16. FORCE MAJEURE
Neither Party shall have any liability under or be deemed to be in breach of this Agreement for any delays or failures in performance of this Agreement which result from circumstances beyond the reasonable control of that Party. The Party affected by such circumstances shall promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so. If such circumstances continue for a continuous period of more than 6 months, either Party may terminate this Agreement by written notice to the other Party.
17. GENERAL
17.1 Notices shall be in writing and be given by hand or sent by post to the address of the relevant party first above or to such other address as shall by notice have been substituted thereafter.
17.2 This Agreement constitutes the entire agreement between the parties regarding the subject matter of this Agreement and supersedes any prior agreement between the parties relating to such subject matter.
17.3 This Agreement shall be governed and construed in accordance with English law and any disputes arising out of or relating to this Agreement shall be subject to the exclusive jurisdiction of the English courts.
