1.1 Unless the context otherwise admits words importing one gender shall include all other genders and words importing the singular shall include the plural and vice versa.
1.2 Reference to any statutory provisions in this Agreement shall include any statutory provisions, which amends or replaces it.
2. Outline of Agreement
2.1 The Service Provider provides: Pure Argan Oil
2.2 The Affiliate provides: affiliate referrals.
2.3 The Affiliate agrees to promote and link to the current Products and Services available on www.purearganoil.co.uk, (“the Service Provider’s website”) as listed below:
Argan Oil and related products
2.4 Such promotion shall be in return for Commission Payments as detailed in clause 6 below.
2.5 The parties further agree that Affiliate may promote and link to such other Products and Services as may be introduced on the Service Provider’s website from time to time on such terms as to be agreed between the parties.
2.6 The Affiliate acknowledges that the Service Provider makes no representations concerning the volume of sales that will be generated from such Products and Services where a percentage of revenue from these Products and Services will be paid to the Affiliate.
3. Contract Period
This Agreement shall remain in force for a period of twelve months from the date of the Agreement above (“Initial Term”) and shall continue thereafter unless or until terminated by either party giving not less than 1 months’ notice in writing, such notice not to expire before the end of the Initial Term. Notwithstanding this the parties further agree that this Agreement may be terminated before the expiry of the Initial Term in accordance with clause 11 of this Agreement.
4.1 The Affiliate acknowledges the importance of branding and identifying links to the Service Provider’s Products and Services available on the Service Provider’s website as being provided by the Service Provider and that all links shall be in a form agreed between the parties, whether by means of a graphic or text link.
4.2 All graphics displaying the Service Provider’s name and or logo shall be active links back to the Service Provider’s web site home or index page or such other pages as directed by the Service Provider in order to maximise sales of the Products and Services.
4.3 Any graphic link should only use the graphics supplied by the Service Provider and in the format supplied by the Service Provider.
4.4 All Service Provider graphics shall be displayed in the same or similar display dimensions to any other graphics used for linking to a third party site as displayed on the same web page. Furthermore the graphic shall not be displayed in a manner that distorts the dimensions or colours of the graphic so as to render it difficult to view or in the opinion of the Service Provider dilutes the identity of the logo or could cause confusion to the public. The Affiliate is free to use a suitable software program to reduce the file size of any graphics so long the image quality of the graphic is not visibly altered or reduced.
4.5 Any graphic shall also be coded with a text alternative (“img alt”) tag using Hypertext Markup Language (HTML) or other computer language coding producing the same result in the format “Service Provider’s website address” or such other text alternative as may be agreed between the parties.
4.6 Wherever possible all links shall be placed above the fold on any web page on which they are displayed.
4.7 The Affiliate shall ensure that all links whether graphic or text shall operate correctly and transfer the user to the requested part of the Service Provider’s website. In the event that any link fails the Affiliate shall take steps to correct the problem within a reasonable period of time.
4.8 In recognition that the actions listed below in this clause 4 would impact upon the value and goodwill of the Service Provider, the Affiliate agrees not to do the following without the express prior written approval of the Service Provider:
4.8.1 Use the Service Provider’s web site address or any combination of the Service Provider’s name in keywords contained within the Meta Tags of any web page or referred to or repeated in the coding of any web page; or
4.8.2 Register the Service Provider’s web site address or any similar sounding or similarly spelt web site address or any combination of it as keywords with any search engine or directory; or
4.8.3 Register any domain name similarly spelt (or deliberately mis-spelt) to that of the Service Provider’s website address.
5. Loss or Deterioration Of Service
In the event of system failure, loss of access or deterioration in service regarding access to the Service Provider’s website, the Service Provider shall take all reasonable steps to restore or rectify the service. The Affiliate shall not be entitled to any form of compensation.
6. Products and Services – Commission Payments
The Service Provider shall pay commission at 10% (“Commission Payments”) upon all agreed Products and Services purchased through the Service Provider’s website where the customer comes from the Affiliate’s website during a single user session (“Qualifying Transaction”). Such payment percentages shall be based upon the value of the Product or Service sold, net of VAT and associated sale charges or deductions and credit card clearing payments.
7. Products and Services – Sales Reports
Within the period of seven working days after the end of each calendar month, the Service Provider shall email to the Affiliate a report (“Monthly Report”) containing:
(a) All Qualifying Transactions entered into during such month; and
(b) The amount of Commission Payments payable in respect of such month.
8. Products and Services – Invoicing
8.1 The Affiliate shall invoice the Service Provider for Commission Payments owed on all Qualifying Transactions within a period of 30 days after the Service Provider receives payment for such Qualifying Transactions. The Service Provider shall pay the amount thus invoiced, including any applicable Value Added Tax or other sales-related tax, within the period of 30 days after the date of each such invoice.
8.2 In the event that any Qualifying Transaction is charged-back to the Service Provider, the Service Provider will deduct the associated Commission Payment payable to the Affiliate, either during the same month that the chargeback is made or from the amount of any subsequent month. The Service Provider shall inform the Affiliate of this chargeback and the reason for it prior to the chargeback deduction being made.
9. Products and Services – Tracking
The Service Provider will provide the Affiliate with the necessary tracking or partner codes in order to track sales and customers originating from the Affiliate’s website.
10. Products and Services – Records
The Service Provider shall maintain and retain throughout the term of this Agreement and for a period of 2 years after its termination accurate records of all Qualifying Transactions.
11.1 Either party may terminate this Agreement immediately on written notice to the other in the event that:
11.1.1 Either party commits a serious, grave or material breach or persistent breaches of this Agreement including non-performance, default or neglect of its duties, responsibilities and obligations under this Agreement, and
11.1.2 Such breach remains unremedied for a period of 30 days from written notice given by the other party specifying the breach and requiring its remedy.
11.2 Furthermore this Agreement may be terminated in the event that:
(a) Either party is unable to pay or has no reasonable prospects of paying their debts the amount or aggregate amount of which equals or exceeds the bankruptcy level within the meaning of the Insolvency Act 1986, or
(b) Being a company becomes subject to an administration order or goes into liquidation, (other than for the purpose of amalgamation or reconstruction), or
(c) Has a receiver appointed to administer any of its property or assets, or
(d) Ceases or threatens to cease to carry on business, or
(e) Makes any voluntary agreement or enters into a compromise for the benefit of its creditors, or
(f) There is a change of control (and for these purposes “control” means the right to direct the affairs of the company either by ownership of shares, membership of the board, or otherwise), or
(g) Fails to make payment in accordance with the terms of this Agreement.
11.3 Any termination of this Agreement shall be without prejudice to any rights accrued in favour of either party in respect of any breach committed prior to the date of (or giving rise to) such termination and to those provisions of this Agreement which are by their construction intended to survive such termination (including, without limitation, Clauses 10, 13, 15, 16 and this clause 11).
11.4 Neither party shall be liable for or be in breach of this Agreement by reason of any delay in performance or failure to perform this Agreement (except with respect to payment obligations) which results from matters which are beyond either party’s reasonable control and which such party is unable to overcome by the exercise of reasonable diligence.
12.1 Any notice given by either of the parties under this Agreement shall be served on the other party and addressed to that party’s signatory by email, personal delivery, pre-paid recorded delivery, first-class post, telex or facsimile transmissions to the receiving party as set out in this clause 12:
Name: Pure Argan Oil
Address: Pure Argan Oil, Department 212, 98 Woodlands Road, Glasgow, G3 6HB
12.2 Any such notice shall be deemed to be effectively served as follows:
12.2.1 In the case of service by pre-paid recorded delivery or first-class post 48 hours after posting.
12.2.2 In the case of service by email, telex or facsimile transmission on the next working day.
Both parties shall keep confidential the specific terms of this Agreement and not disclose them save to such employees or contractors as need to know the relevant information for the purposes of performing this Agreement. The parties agree that all information marked “Confidential”, or where not marked it is reasonable to judge such information as confidential, shall not be disclosed for a period of 2 years after the expiry of this Agreement, except where such disclosure is required by law or by order of a court in the jurisdiction of England. The parties further agree that all information marked as a “Trade Secret” and reasonably judged to constitute a trade secret shall not be disclosed at any time during or after the expiry of this Agreement, except where such disclosure is required by law or by order of a court in the jurisdiction of England. Confidential information and Trade Secrets shall consist of, but not necessarily be limited to: technical, commercial, financial, operational, marketing or promotional information or data.
14. Press and Publicity
Both parties may announce the existence of this Agreement by means of a joint press release as agreed between the parties prior to being made public. Either party may also produce subsequent press releases and other statements of their own referring to the existence of this Agreement, but will notify the other party in advance.
15. Data Protection
Both parties shall be registered under and observe the Data Protection Act relevant to them, (1984 or 1998 Act) according to when each party first registered. Both parties further confirm that they will not rent or sell customer lists and / or contact details without the customers’ express prior approval. Either party may treat a breach of this clause 15 as a reason for termination of this Agreement in accordance clause 11 of this Agreement.
16. Intellectual Property Rights
16.1 Each party grants to the other for the term of this Agreement a non-exclusive, revocable, royalty-free licence to use its name, logos, trade marks, trade names and devices (“Intellectual Property”) subject to the restrictions in clause 4 above and in any promotional and marketing material issued by either party in a manner approved by the party whose Intellectual Property is to be used, such approval not to be unreasonably witheld or delayed.
16.2 Both parties warrant that they have the right to grant or permit the other party to use the logos, trademarks, trade names and devices to the extent required to fulfil the terms of this Agreement.
16.3 Neither party shall make any claim to the other party’s Products or Services during or after the expiry of this Agreement.
16.4 Neither party shall make any claim to the other party’s trademarks or register or cause to be registered or apply for a materially similar trademark or imitation of a trademark during or after the expiry of this Agreement.
16.5 Neither party shall register or cause to be registered any company name, which is materially similar to that of the other party.
16.6 On the expiry of this Agreement all licenses referred to in this clause 16 shall expire and the parties agree to immediately cease use of the Intellectual Property of the other.
17. Limitation of Liability
17.1 Nothing in this Agreement shall exclude or limit liability for death or personal injury resulting from the negligence of either party or their servants, agents or employees.
17.2 Neither party shall be liable to the other under this Agreement in contract, tort, or otherwise (including negligence), pre-contract or other representations (other than fraudulent or negligent misrepresentations) or otherwise for any loss of business, contracts, profits or anticipated savings or for any indirect or consequential or loss whatsoever.
17.3 The Service Provider agrees to indemnify the Affiliate against any claims, damages, losses, costs and expenses which the Affiliate may sustain or incur in relation to any Products or Services which the Service Provider provides, such indemnity applying in respect of any claims for any breach of applicable law or regulation or any infringement of any intellectual property rights.
17.4 The Affiliate agrees to indemnify the Service Provider against any claims, damages, losses, costs and expenses which the Service Provider may sustain or incur in relation to any products or services which the Affiliate provides, such indemnity applying in respect of any claims for any breach of applicable law or regulation or any infringement of any intellectual property rights.
Neither party may assign or otherwise transfer this Agreement or any rights, duties and obligations hereunder without the prior consent in writing of the other party.
19. Force Majeure
Neither party shall be liable for delay or failure to perform any obligation under this Agreement if the delay or failure is caused by any circumstances beyond its reasonable control, including but not limited to acts of god, war, civil disorder or industrial dispute. If such delay or failure continues for a period of at least fourteen days, the party not subject to the force majeure shall be entitled to terminate this Agreement by written notice to the other.
20. Joint Venture or Partnership
Nothing in this Agreement shall be construed as creating a partnership, joint venture or an agency relationship between the parties and neither party shall have the authority or power to bind the other party or to contract in the name of or create a liability against the other party.
21.1 Failure by either party to enforce any accrued rights under this Agreement is not to be taken as or deemed to be a waiver of those rights unless the waiving party acknowledges the waiver in writing.
21.2 It is hereby declared that the foregoing paragraphs, sub-paragraphs and clauses of this Agreement shall be read and construed independently of each other. Should any part of this Agreement or its paragraphs, sub-paragraphs or clauses be found invalid it shall not affect the remaining paragraphs, sub-paragraphs and clauses.
21.3 No addition to or modification of any clause in this Agreement shall be binding on the parties unless made in writing and signed by the signatories to this Agreement or their duly authorised representatives.
21.4 This Agreement sets out the entire Agreement and understanding of the parties and is in substitution of any previous written or oral agreements between the parties.
This Agreement shall be interpreted, construed and enforced in accordance with English law and shall be subject to the exclusive jurisdiction of the English Courts.