(These terms are specific the the ReferralHero.com refer a friend scheme and dsictinct from the affiliate program run on First Promoter)
FINDER’S FEE AGREEMENT
This Agreement is made on the date of last signature below between:
- Inlinks Optimization LTD, a company incorporated in England and Wales with registered number Inlinks Optimization LTD whose registered office is at Harrison House, Biggleswade, Beds., SG18 9RB. (the Principal); and
- You , (the Finder).
- In this Agreement, the following words are defined:
this agreement for the Introduction of Prospective Clients;
in relation to either party, any information (whether or not stated to be confidential or marked as such) which that party discloses to the other, or which the other party obtains from any information disclosed to it by that party, either orally or in writing or by any other means, under or in connection with this Agreement;
an agreement for the provision of the Services entered into during the Introduction Period between the Principal and a Prospective Client who was Introduced by the Finder;
Effective Date: The date you join the program
the provision to the Principal of the contact details of an employee or relevant individual at a Prospective Client who knows one or more individuals at the Finder and is of sufficient seniority to authorise or recommend the purchase of the Services from the Principal. Introduce, Introduces, and Introduced shall be interpreted accordingly;
for each Prospective Client, the date during the term of this Agreement on which the Finder first Introduces such Prospective Client to the Principal;
for each Prospective Client, the 1 month period from the Introduction Date, irrespective of whether such period ends before or after the date of termination of this Agreement;
the payments made to the Principal for the Services under a Contract less any VAT or other sales tax, out of pocket expenses incurred by the Principal in providing the Services and any discounts or rebates granted by the Principal;
any person resident or having its principal place of business in the Territory to whom the Principal has not at any time previously provided the Services or any other goods or services and with whom the Principal has not been in negotiations to provide the Services in the 6 months before the Introduction Date;
the SEO Tool services provided by the Principal together with any other services from time to time offered by the Principal and which the Principal, by express written notice to the Finder, includes within the scope of this Agreement;
any day other than a Saturday, Sunday or public holiday in England and Wales.
- In this Agreement, unless the context requires a different interpretation:
a. the singular includes the plural and vice versa;
b. references to sub-clauses, clauses, schedules or appendices are to sub-clauses, clauses, schedules or appendices of this Agreement;
c. a reference to a person includes firms, companies, government entities, trusts and partnerships;
d. “including” is understood to mean “including without limitation”;
e. reference to any statutory provision includes any modification or amendment of it;
f. the headings and sub-headings do not form part of this Agreement; and
g. “writing” or “written” will include fax and e-mail unless otherwise stated.
Appointment of Finder
- From the Effective Date, the Principal appoints the Finder on a non-exclusive basis in the Territory to identify and Introduce to the Principal Prospective Clients pursuant to the terms and conditions of this Agreement.
- The Finder accepts the appointment set out in the preceding clause.
- The Principal shall pay the Finder a Fee in respect of a Contract, provided that:
a. the Prospective Client has been Introduced by the Finder and accepted by the Principal; and
b. such Contract has been unconditionally entered into by both the Finder and the Prospective Client.
Obligations of the Finder
- During the term of this Agreement, the Finder will:
a. act diligently and in good faith towards the Principal and Prospective Clients;
b. use its best endeavours to make Introductions of Prospective Clients;
c. report in writing to the Principal from time to time on progress made with Prospective Clients; and
d. comply with all reasonable and lawful instructions of the Principal.
- The Finder will have no authority to:
a. obtain orders from; or
b. enter into or conclude contracts with,
any person or company, including a Prospective Client, for the provision of the Services.
- The Finder must disclose to each Prospective Client that it is an agent of the Principal and that it has no authority or ability to negotiate or vary the Services or the terms of the Services or enter into any contract on behalf of the Principal.
- The Finder shall be entitled to a fee if a Prospective Client Introduced by the Finder enters into a Contract and is tracked as such, through the 3rd party software at ReferralHero.com
- All sums payable under this Agreement are exclusive of VAT, which the Finder shall add to its invoices at the appropriate rate.
- The fee payable shall be at a pro-rata rate, as set out in Schedule 2 of the Agreement, of the Principal’s Net Income received under each Contract (as it may be renewed, extended or amended) from its commencement date (the Fee).
- Except where the procedures set out in clause 13 and clause 14 have been followed, Fees payable pursuant to Schedule 2 shall be due to the Finder (whether invoiced or not) within 28 days of the end of the month in which the Principal received the corresponding payment for the Services. If the Principal receives payment under any Contract in instalments, then the Fee shall be calculated and paid on such instalments as they are received by the Principal.
- The Principal shall, within 14 days of the end of the month in which the Principal received the corresponding payment for Services, send to the Finder a written statement, setting out, in respect of each Contract:
a. the Fee payable to the Finder;
b. the payments for Services received and details of any sums due which have not been received; and
c. how the Fee was calculated, including details of all deductions made in determining Net Income
(Principal Fee Statement).
- The Finder shall invoice the Principal for the Fee in accordance with the Principal Fee Statement, together with any applicable VAT, in which case, notwithstanding clause 12 above, the due date for payment by the Principal of such Fee shall be 28 days from the date of receipt of the invoice.
- Without prejudice to any other right or remedy that it may have, if the Principal fails to make any payment due to the Finder under this Agreement by the due date for payment, then the Principal shall pay interest on the overdue amount at the rate of 4% per annum above the Bank of England base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Principal shall pay the interest together with the overdue amount.
- The Principal shall keep separate accounts and records giving correct and adequate details of all Contracts entered into by the Principal, all payments received under them and all deductions made in the calculation of Net Income.
- If any dispute arises as to the amount of the Fee payable by the Principal to the Finder, the same shall be referred to the Principal’s auditors for settlement and their decision, save in the case of manifest error, shall be final and binding on both parties.
- Termination of this Agreement, however arising, shall not affect the continuation in force of this section entitled ‘Fees’ and the Principal’s obligation to pay the Fee to the Finder in accordance with it.
- Amounts payable to the Finder under this Agreement shall be paid by way of a customer refund unless otherwise notified by the Finder to the Principal and agreed by the Principal in writing in accordance with this Agreement:
- The Finder shall bear all expenses associated with the performance of its obligations under this Agreement.
Obligations of the Principal
- The Principal must at all material times, act in good faith towards the Finder.
- The Principal shall provide the Finder at all material times with the information the Finder reasonably requires to perform its duties, including marketing information for and details of the Services, and information about the Principal.
- The Principal shall inform the Finder immediately if the Principal suspends or ceases to provide the Services.
- The Principal is under no obligation to follow up on any Introduction made by the Finder or enter into a Contract.
- Each party will only use Confidential Information to perform its obligations under the Agreement and will not cause or allow the information to be disclosed except:
a. where required by law, court order or any governmental or regulatory body;
b. to any of its employees, officers, sub-contractors, representatives or advisers who need to know the information in order to discharge its obligations under the Agreement and agree only to use the information for that purpose and not to cause or allow disclosure of that information;
c. where the information has become generally available to the public (other than as a result of disclosure in breach of the Agreement by the party or any of its employees, officers, sub-contractors, representatives or advisers);
d. where the information was available or known to it on a non-confidential basis before being disclosed under the Agreement; or
e. where the information was developed by or for it independently of the Agreement and is received by persons who are not the disclosing party.
- Each party shall comply with its obligations and may exercise its respective rights and remedies under Schedule 1.
- The Finder and its agents, sub-contractors, consultants or employees shall:
a. comply with all applicable laws, regulations, statutes, and codes relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 (Bribery Laws);
b. not commit an offence under sections 1, 2 or 6 of the Bribery Act 2010;
c. comply with any relevant industry code related to Anti-Bribery (Bribery Policies);
d. shall have, maintain, and enforce throughout the term of this Agreement its own policies and procedures, to ensure compliance with the Bribery Laws and the Bribery Policies; and
e. promptly report to the Principal any request or demand for any undue financial or other advantage of any kind received by the Finder in connection with the performance of this Agreement.
Liability and Insurance
- Nothing in this Agreement limits or excludes either party’s liability for:
a. death or personal injury caused by its negligence;
b. fraud or fraudulent misrepresentation or wilful default; or
c. liability under any of the indemnities contained in Schedule 1; or
d. any other liability which cannot be limited or excluded by applicable law.
- Subject to the preceding clause, neither party shall have any liability to the other party, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this Agreement for:
a. loss of profits;
b. loss of sales or business;
c. loss of agreements or contracts;
d. loss of anticipated savings;
e. loss of or damage to goodwill;
f. loss of use or corruption of software, data or information;
g. any indirect or consequential loss.
- Subject to the two preceding clauses, the total liability of either party for any other loss of the other party in respect of any one event or series of connected events shall not exceed £500.
- During this Agreement, the Principal and the Finder shall each maintain in force with a reputable insurance company, insurance sufficient to indemnify risks for which they may be responsible, including for their respective sub-contractors, agents and employees, in connection with the Services and shall, on either parties’ request, produce both the insurance certificate giving details of cover and the receipt for the current year’s premium.
Circumstances beyond the control of either party
- Neither party shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that party.
- Such causes include, but are not limited to: power failure, Internet Service Provider failure, acts of God, epidemic, pandemic, civil unrest, fire, flood, droughts, storms, earthquakes, collapse of buildings, explosion or accident, acts of terrorism, acts of war, governmental action, any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or any other event that is beyond the control of the party in question.
- The party affected by a circumstance beyond its control shall use all reasonable endeavours to mitigate the effect of the force majeure upon the performance of its obligations.
- The corresponding obligations of the other party will be suspended to the same extent as those of the party affected by a force majeure event.
- If the delay continues for a period of 90 days, either party may terminate this Agreement on not less than 4 weeks’ written notice.
- Either party may terminate this Agreement by giving the other party 1 day’s prior written notice.
- A party may terminate the Agreement immediately by giving written notice to the other party if that other party:
a. does not pay any sum due to it under the Agreement within 28 days of the due date for payment;
b. commits a material breach of the Agreement which, if capable of remedy, it fails to remedy within 14 days after being given written notice specifying full particulars of the breach and requiring it to be remedied);
c. persistently breaches any term of the Agreement;
d. is dissolved, ceases to conduct substantially all of its business or becomes unable to pay its debts as they fall due;
e. is a company over any of whose assets or property a receiver is appointed;
f. makes any voluntary arrangement with its creditors or (if a company) becomes subject to an administration order (within the meaning of the Insolvency Act 1986);
g. (if an individual or firm) has a bankruptcy order made against it or (if a company) goes into liquidation;
h. undergoes a change of control (within the meaning of section 1124 of the Corporation Tax Act 2010); or
i. (if an individual) dies or as a result of illness or incapacity becomes incapable of managing their own affairs.
Consequences of Termination
- On termination or expiry of this Agreement, the Principal shall immediately pay to the Finder all of the Finder’s outstanding unpaid invoices and interest and, in respect of a Principal Fee Statement for which no invoice has been submitted, the Finder may submit an invoice, which shall be payable immediately on receipt.
- Termination or expiry of the Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.
- Other than as set out in this Agreement, neither party shall have any further obligation to the other under the Agreement after its termination.
- This Agreement contains the whole agreement between the parties relating to its subject matter and supersedes all prior discussions, arrangements or agreements that might have taken place in relation to the Agreement. Nothing in this clause limits or excludes any liability for fraud or fraudulent misrepresentation.
- No party may assign, transfer or sub-contract to any third party the benefit and/or burden of the Agreement without the prior written consent (not to be unreasonably withheld) of the other party.
- No variation of the Agreement will be valid or binding unless it is recorded in writing and signed by or on behalf of both parties.
- The Contracts (Rights of Third Parties) Act 1999 does not apply to the Agreement and no third party has any right to enforce or rely on any provision of the Agreement.
- Unless otherwise agreed, no delay, act or omission by a party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy.
- A provision which by its intent or terms is meant to survive the termination of the Agreement will do so.
- If any court or competent authority finds that any provision (or part) of the Agreement is invalid, illegal or unenforceable, that provision or part-provision will, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Agreement will not be affected.
- Any notice (other than in legal proceedings) to be delivered under the Agreement must be in writing and delivered by pre-paid first class post to or left by hand delivery at the other party’s registered address or place of business, or sent by email to the other party’s main business email address. Notices:
a. sent by post will be deemed to have been received, where posted from and to addresses in the United Kingdom, on the second Working Day and, where posted from or to addresses outside the United Kingdom, on the tenth Working Day following the date of posting;
b. delivered by hand will be deemed to have been received at the time the notice is left at the proper address; and
c. sent by email will be deemed to have been received on the next Working Day after sending.
Governing law and jurisdiction
- This Agreement will be governed by and interpreted according to English and Welsh law. All disputes and claims arising under the Agreement (including non-contractual disputes or claims) will be subject to the exclusive jurisdiction of the English and Welsh courts.
SCHEDULE 1 DATA PROTECTION
a. Agreed Purpose: the provision of SEO Tool services by the Principal.
b. Controller, Data Controller, Processor, Data Processor, Data Subject, Personal Data, Processing and Appropriate Technical and Organisational Measures: as set out in the Data Protection Laws in force at the time.
c. Data Protection Laws: all legislation and regulatory requirements in force from time to time relating to the use of Personal Data and the privacy of electronic communications, including, without limitation (i) any data protection legislation in force from time to time in the UK including the Data Protection Act 2018 or any successor legislation, as well as (ii) the UK General Data Protection Regulation (GDPR) and any other directly applicable legislation or regulation relating to data protection and privacy.
d. Permitted Recipients: The parties to this Agreement, the employees of each party, any third parties engaged to perform obligations in connection with this Agreement where data is shared for the purpose of performance of this Agreement and the provision of Services.
e. Shared Personal Data: the Personal Data to be shared between the parties under this Agreement. Shared Personal Data shall be confined to the following categories of information relevant to the Data Subject:
· First name and last name
· Email address
· IP Address
- The following provisions set out the framework for the sharing of Personal Data between the parties as Data Controllers. Each party acknowledges that one party (the Data Discloser) will regularly disclose to the other party (the Data Recipient) Shared Personal Data collected by the Data Discloser for the Agreed Purpose. Each party shall:
a. ensure that it has all necessary consents and notices in place to enable the lawful transfer of the Shared Personal Data to the Data Recipient for the Agreed Purpose;
b. give full information to any Data Subject whose Personal Data may be processed under this Agreement of the nature of such Processing. This includes giving notice that, on the termination of this Agreement, Personal Data relating to them may be retained by or, as the case may be, transferred to one or more of the Data Recipients, their successors and assigns;
c. process the Shared Personal Data only for the Agreed Purposes;
d. not disclose or allow access to the Shared Personal Data to anyone other than the Permitted Recipients;
e. ensure that all Permitted Recipients are subject to written contractual obligations concerning the Shared Personal Data (including obligations of confidentiality) which are no less demanding than those imposed by this Agreement;
f. ensure that it has in place Appropriate Technical and Organisational Measures, reviewed and approved by the other party, to protect against unauthorised or unlawful Processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data.
g. not transfer any Personal Data obtained from the Data Discloser outside of the European Economic Area unless the prior written consent of the Data Subject has been obtained. The transferring party must comply with its obligations under the Data Protection Laws and ensure that (i) the transfer is to a country approved by the United Kingdom or the European Commission as providing adequate protection pursuant to Article 45 GDPR; (ii) there are appropriate safeguards in place pursuant to Article 46 GDPR; or (iii) one of the derogations for specific situations in Article 49 GDPR applies to the transfer.
- Each party shall comply with the Data Protection Laws and agrees that any material breach of the Data Protection Laws shall, if not remedied within 30 days of written notice from the other party, give grounds to the other party to terminate this Agreement with immediate effect.
- Each party shall assist the other in complying with all applicable requirements of the Data Protection Laws. In particular, each party shall:
a. consult with the other party about any notices given to Data Subjects in relation to the Shared Personal Data;
b. promptly inform the other party about the receipt of any Data Subject access request;
c. provide the other party with reasonable assistance in complying with any Data Subject access request;
d. not disclose or release any Shared Personal Data in response to a Data Subject access request without first consulting with and obtaining the consent of the other party;
e. assist the other party, at the cost of the other party, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
f. notify the other party without undue delay on becoming aware of any breach of the Data Protection Laws;
g. at the written direction of the Data Discloser, delete or return Shared Personal Data and copies thereof to the Data Discloser on termination of this agreement unless required by law to store the Personal Data;
h. use compatible technology for the Processing of Shared Personal Data to ensure that there is no lack of accuracy resulting from Personal Data transfers;
i. maintain complete and accurate records and information to demonstrate its compliance with this Schedule 1; and
j. provide the other party with contact details of at least one employee or officer as point of contact and responsible manager for all issues arising out of the Data Protection Laws, including the joint training of relevant staff, the procedures to be followed in the event of a data security breach, and the regular review of the parties’ compliance with the Data Protection Laws.
- Each party shall indemnify the other party against all claims and proceedings and all liability, loss, costs and expenses suffered by the other as a result of any claim made or brought by a Data Subject or other legal person in respect of any loss, damage or distress caused to them as a result of any breach of the Data Protection Laws by that party, its employees or agents.
SCHEDULE 2 FEE SCHEDULE
The Principal uses the following metrics to determine the relevant Fee payable to the Finder:
As set by the Principal from time to time.