Affiliate terms and conditions
Please read these Terms and Conditions before applying to become an affiliate. In these Terms and Conditions, we set out our and your legal rights and obligations in relation to our affiliate programme. You will be asked to agree to these Terms and Conditions before becoming an affiliate.
1.1 In these Terms and Conditions, except to the extent expressly provided otherwise:
"Affiliate" means the person or entity identified as such in the Registration Form;
"Affiliate Link" means a hyperlink from the Affiliate Website to the Merchant Website in a form specified by the Merchant that enables the Merchant to track visitors from the Affiliate Website to the Merchant Website using the affiliate tracking system operated by the Merchant;
"Affiliate Programme" means the affiliate programme detailed in these Terms and Conditions and on the Merchant Website;
"Affiliate Website" means the website or websites owned and operated by the Affiliate that is / are identified by the Affiliate on the Registration Form or subsequently approved by the Merchant to carry Affiliate Links;
"Business Day" means any weekday other than a bank or public holiday in England;
"Business Hours" means the hours of 09:00 to 17:00 GMT/BST on a Business Day;
"Commission" means, with respect to each Trigger Event, the relevant amount specified on the Merchant Website;
"Contract" means a contract made under these Terms and Conditions between the Merchant and the Affiliate;
"Effective Date" means, following the Affiliate completing and submitting the Registration Form, the date upon which the Merchant sends to the Affiliate an email confirming that the Contract has come into force;
"Force Majeure Event" means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
"Merchant" means Brain Control Co. Ltd., a company incorporated in England and Wales (registration number 11403367) having its registered office at 88 Paul St. London, EC2A 4NE;
"Merchant Website" means the website accessible via https://vagus.net, plus any other website notified by the Merchant to the Affiliate during the Term;
"Prohibited Content" means materials that constitute, or that the Merchant reasonably determines constitute:
(a) material that breaches any applicable laws, regulations or legally-binding codes;
(b) material that infringes any third party intellectual property rights or other third party legal rights;
(c) indecent, obscene, pornographic or lewd material;
(d) material that is offensive or abusive, or is likely to cause annoyance, inconvenience or anxiety to another internet user; and/or
(e) computer viruses, spyware, trojan horses or other malicious or harmful routines, programs or software;
"Registration Form" means the form published by the Merchant on the Merchant Website enabling users to apply to become affiliates of the Merchant;
"Term" means the term of the Contract, commencing in accordance with clause 2.1 and ending in accordance with clause 2.2;
"Terms and Conditions" means these terms and conditions including any schedules, and any amendments to these Terms and Conditions from time to time; and
"Trigger Event" means the event or events described as such on the Merchant Website, providing that such event is attributed to the Affiliate (and not to any other affiliate of the Merchant) by the affiliate tracking system of the Merchant].
2.1 The Contract shall come into force upon the Effective Date.
2.2 The Contract shall continue in force indefinitely, subject to termination in accordance with clause 10 or any other provision of these Terms and Conditions.
2.3 Unless the parties expressly agree otherwise in writing, each accepted Registration Form shall create a distinct contract under these Terms and Conditions.
3.1 The Merchant shall make available to the Affiliate during the Term an affiliate control panel on the Merchant Website, although the Merchant does not guarantee uninterrupted availability of the affiliate control panel. Using the affiliate control panel, the Affiliate may:
(a) keep the account details and preferences of the Affiliate up to date;
(b) access analytics information relating to the performance of the Affiliate; and
(c) download software code for the Affiliate Links.
3.2 The Merchant grants to the Affiliate during Term only a worldwide, non-exclusive and royalty-free licence to publish the Affiliate Links on the Affiliate Website.
3.3 The Affiliate must within 5 Business Days following the Effective Date include at least 1 Affiliate Link on the Affiliate Website; and the Affiliate must maintain at least 1 Affiliate Link on the Affiliate Website for the remainder of the Term.
3.4 The Merchant may at any time during the Term request amendments to the Affiliate Links and/or to the positioning and display of the Affiliate Links on the Affiliate Website for the purpose of ensuring consistency and quality in the use of the trade marks and branding of the Merchant; and[ to the extent that such requests are reasonable] the Affiliate must make such amendments within 5 Business Days following receipt of the request.
3.5 The Merchant does not warrant or represent that the use of the Affiliate Links by the Affiliate will not infringe any third party Intellectual Property Rights or other legal rights, or give rise to any other liability on the part of the Affiliate.
4.1 The Affiliate shall provide to the Merchant:
(a) all such co-operation and assistance as are reasonably requested by the Merchant in connection with the Affiliate Programme; and
(b) all such information and documentation as are reasonably requested by the Merchant in connection with the Affiliate Programme.
4.2 The Affiliate must during the Term:
(a) keep the Affiliate Website up to date and in good working order;
(b) ensure that the quality of design, content and functionality on the Affiliate Website does not materially deteriorate;
(c) ensure all marketing relating to the Affiliate Website (both online and offline) is in accordance with applicable law, any applicable codes of practice, and good industry practice generally; and
(d) ensure that all Affiliate Links are in such form and on such pages of the Affiliate Website as may be specified or agreed by the Merchant from time to time.
4.3 The Affiliate must not:
(a) include any Prohibited Content or any hyperlink to Prohibited Content on the Affiliate Website;
(b) market the Affiliate Website using spam or unsolicited emails or other unsolicited communications, or using any form of spyware, parasiteware, adware or similar software, or using any other antisocial or deceptive methods;
(c) increase or seek to increase the number of Trigger Events or the amount of the Commission using any fraudulent or deceptive method;
(d) advertise, directly or indirectly, any Affiliate Link or the Affiliate Website on any advertising platform that has been notified by the Merchant to the Affiliate as a prohibited advertising platform;
(e) publish any Affiliate Link in any location other than on the Affiliate Website;
(f) make any public disclosure relating to the Contract (including press releases, public announcements and marketing materials) without the prior written consent of the Merchant;
(g) include any hyperlink to the Merchant Website from the Affiliate Website that is not an Affiliate Link without the prior written consent of the Merchant; or
(h) include any reference to the Merchant or the Merchant Website on the Affiliate Website (excluding Affiliate Links) without the prior written consent of the Merchant.
4.4 The Affiliate must not take any action that will or is reasonably likely to have a material negative impact on the reputation and/or goodwill of the Merchant or the Merchant Website.
5.1 In respect of each Trigger Event, the Merchant shall pay the Commission to the Affiliate in accordance with these Terms and Conditions.
5.2 Notwithstanding any other provision of these Terms and Conditions, no Commission shall be due to the Affiliate in respect of:
(a) any action taken by or on behalf of the Affiliate, any parent undertaking or subsidiary of the Affiliate, any employee, agent or officer of the Affiliate or any parent undertaking or subsidiary of the Affiliate, or any natural person related to any of the above;
(b) any amount paid to the Merchant by means of the fraudulent or unlawful use of a credit, debit or other payment card, or by any other fraudulent or unlawful means; or
(c) any purchases that are subsequently cancelled, refunded, reversed or charged back,
and the Merchant will be entitled to require repayment of any Commission paid by the Merchant to the Affiliate in any of these circumstances.
5.3 If the Affiliate is registered for VAT or is otherwise required by applicable law to charge VAT to the Merchant with respect to the Commission then:
(a) all Commission amounts stated in or calculated in accordance with these Terms and Conditions are stated inclusive of VAT payable by the Merchant to the Affiliate;
(b) the Affiliate is solely responsible for accounting for such VAT to the relevant tax authorities; and
(c) the Affiliate must ensure that the invoices it provides to the Merchant in accordance with these Terms and Conditions are valid VAT invoices.
5.4 The Merchant may vary Commission rates from time to time, but this will not affect any liability to pay Commission that accrues before the date of the variation.
5.5 Following the termination of the Contract, the Affiliate shall continue to be entitled to Commission in respect of Trigger Events that occurred before termination, unless the Contract is terminated by the Merchant under clause 10.2 or clause 10.3, in which case the Affiliate shall not be entitled to any Commission following termination.
6.1 Within the period of 40 Business Days following the end of each calendar month, the Merchant shall notify the Affiliate (by means of the affiliate control panel) of the amount of Commission due in respect of payments received by the Merchant during that calendar month, taking into account any cancellations, refunds, reversals and charge-backs during that calendar month.
6.2 The Affiliate must issue an invoice to the Merchant for Commission that is earned during a calendar month, before the end of the next following calendar month.
6.3 The Merchant must pay Commission due to the Affiliate under an invoice within the period of 30 days following the date issue of an invoice in accordance with this clause 6.
7.1 The Merchant must pay the Commission due to the Affiliate by PayPal (using such payment details as are notified by the Affiliate to the Merchant from time to time).
7.2 If the Merchant is required by applicable law to deduct withholding tax or any other taxes or duties from any amounts payable to the Affiliate under the Contract, then the Merchant may deduct such taxes or duties from the amounts payable before paying the residual amounts to the Affiliate.
7.3 The Affiliate acknowledges and agrees that it shall have no right to claim interest or statutory compensation under the Late Payment of Commercial Debts (Interest) Act 1998, and that its contractual rights under this clause 7.3 constitute a substantial remedy within the meaning of that Act.
7.4 If any amount is paid by the Merchant to the Affiliate in relation to the Contract, and the Affiliate was not entitled to receive or is not entitled to retain that payment under the express provisions of the Contract, then the Affiliate must repay such amount to the Merchant promptly and in any case within 15 Business Days following receipt of a written request from the Merchant for the Affiliate to do so.
7.5 The Merchant may at any time set off any amount that the Affiliate owes to the Merchant against any amount that the Merchant owes to the Affiliate, by sending to the Affiliate a written notice of this.
8.1 The Merchant warrants to the Affiliate that it has the legal right and authority to enter into the Contract and to perform its obligations under these Terms and Conditions.
8.2 The Affiliate warrants to the Merchant that it has the legal right and authority to enter into the Contract and to perform its obligations under these Terms and Conditions.
8.3 All of the parties' warranties and representations in respect of the subject matter of the Contract are expressly set out in these Terms and Conditions. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of the Contract will be implied into the Contract or any related contract.
9.1 Nothing in these Terms and Conditions will:
(a) limit or exclude any liability for death or personal injury resulting from negligence;
(b) limit or exclude any liability for fraud or fraudulent misrepresentation;
(c) limit any liabilities in any way that is not permitted under applicable law; or
(d) exclude any liabilities that may not be excluded under applicable law.
9.2 The limitations and exclusions of liability set out in this clause 9 and elsewhere in these Terms and Conditions:
(a) are subject to clause 9.1; and
(b) govern all liabilities arising under these Terms and Conditions or relating to the subject matter of these Terms and Conditions, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in these Terms and Conditions.
9.3 The Merchant will not be liable to the Affiliate in respect of any losses arising out of a Force Majeure Event.
9.4 The Merchant will not be liable to the Affiliate in respect of any loss of profits or anticipated savings.
9.5 The Merchant will not be liable to the Affiliate in respect of any loss of revenue or income.
9.6 The Merchant will not be liable to the Affiliate in respect of any loss of use or production.
9.7 The Merchant will not be liable to the Affiliate in respect of any loss of business, contracts or opportunities.
9.8 The Merchant will not be liable to the Affiliate in respect of any loss or corruption of any data, database or software.
9.9 The Merchant will not be liable to the Affiliate in respect of any special, indirect or consequential loss or damage.
9.10 The aggregate liability of the Merchant to the Affiliate under the Contract shall not exceed the greater of:
(a) £500; and
(b) the total amount paid and payable by the Merchant to the Affiliate under the Contract.
10.1 Either party may terminate the Contract by giving to the other party at least 30 days' written notice of termination.
10.2 Either party may terminate the Contract immediately by giving written notice of termination to the other party if the other party commits a material breach of these Terms and Conditions.
10.3 Either party may terminate the Contract immediately by giving written notice of termination to the other party if:
(a) the other party:
(i) is dissolved;
(ii) ceases to conduct all (or substantially all) of its business;
(iii) is or becomes unable to pay its debts as they fall due;
(iv) is or becomes insolvent or is declared insolvent; or
(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up[ (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under the Contract)]; or
(d) if that other party is an individual:
(i) that other party dies;
(ii) as a result of illness or incapacity, that other party becomes incapable of managing his or her own affairs; or
(iii) that other party is the subject of a bankruptcy petition or order.
11.1 Upon the termination of the Contract, all of the provisions of these Terms and Conditions shall cease to have effect, save that the following provisions of these Terms and Conditions shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): clauses 1, 5.2, 5.3, 5.5, 6, 7, 9, 11 and 13.
11.2 Except to the extent that these Terms and Conditions expressly provides otherwise, the termination of the Contract shall not affect the accrued rights of either party.
12.1 Any notice from one party to the other party under these Terms and Conditions must be given by one of the following methods:
(a) sent by email to the relevant email address specified on the Registration Form (in the case of the Affiliate) or on the Merchant Website (in the case of the Merchant)], in which case the notice shall be deemed to be received upon receipt of the email by the recipient's email server; or
(b) sent using the contractual notice mechanism incorporated into the Merchant Website, in which case the notice shall be deemed to be received upon dispatch,
providing that, if the stated time of deemed receipt is not within Business Hours, then the time of deemed receipt shall be when Business Hours next begin after the stated time.
13.1 No breach of any provision of the Contract shall be waived except with the express written consent of the party not in breach.
13.2 If any provision of the Contract is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of the Contract will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).
13.3 The Merchant may vary the Contract by giving to the Affiliate at least 30 days' written notice of the variation. Subject to this, the Contract may only be varied by a written document signed by or on behalf of each of the parties.
13.4 The Affiliate hereby agrees that the Merchant may assign the Merchant's contractual rights and obligations under the Contract to any successor to all or a substantial part of the business of the Merchant from time to time. Save to the extent expressly permitted by applicable law, the Affiliate must not without the prior written consent of the Merchant assign, transfer or otherwise deal with any of the Affiliate's contractual rights or obligations under the Contract.
13.5 The Contract is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to the Contract are not subject to the consent of any third party.
13.6 Subject to clause 9.1, these Terms and Conditions shall constitute the entire agreement between the parties in relation to the subject matter of these Terms and Conditions, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
13.7 The Contract shall be governed by and construed in accordance with English law.
13.8 The courts of England shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with the Contract.
14.1 The Merchant will not file a copy of these Terms and Conditions specifically in relation to each person with whom the Merchant contracts and, if the Merchant updates these Terms and Conditions, the version to which the Affiliate originally agreed may no longer be available to the Affiliate. The Merchant recommends that the Affiliate saves a copy of these Terms and Conditions for future reference.
14.2 These Terms and Conditions are available in the English language only.
14.3 The VAT number of the Merchant is [number].
SCHEDULE 1 (COMMISSION)
This schedule 1 sets out details of the Trigger Events which may give rise to an obligation to pay Commission under the Contract, along with details of the Commission which may be payable with respect to each Trigger Event.
The Affiliate acknowledges that the specifications of Trigger Events and Commission that are set out in this schedule 1 are subject to the exceptions, qualifications and conditions set out in the main body of these Terms and Conditions.
Trigger Event: a purchase of the goods or services of the Merchant on the Merchant Website made by a user who first visited the Merchant Website by means of an Affiliate Link and who made such purchase within the period of 30 days following the date of that visit.
Commission: 8% of the amount paid by the user to the Merchant in the course of the purchase where that amount excludes VAT paid by the user to the Merchant.
Trigger Event: the submission of a completed user registration form on the Merchant Website by a bona fide user who first visited the Merchant Website by means of an Affiliate Link and who made such visit within the period of 30 days following the date of that first visit.
Trigger Event: a unique bona fide user visit to the Merchant Website made by a user through an Affiliate Link, providing that a user visit will not be considered "unique" if the relevant user has previously visited the Merchant Website.
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