AFFILIATE AGREEMENT
Updated: October 2023
This Affiliate Agreement (“Operating Agreement”) contains the terms and conditions that govern your participation in the Affiliate Program (the “Program”). “We,” “us,” or “our” means Owatrol UK Ltd and Partner Website. “You” or “your” means the applicant. A “site” means a website. “Partner Site” means the e-commerce/retail partner using the affiliate tracking software. “Your site” means any site(s), any software application(s) and any Mobile Application (as defined hereinafter) that you link to the partner site. “Advertising Fees” means commissions earned for a successful and verified sale of product on the Partner Site by a customer using your referral link.
BY CHECKING CONTINUING TO PARTICIPATE IN THE PROGRAM YOU AGREE TO THE TERMS AND CONDITIONS OF THIS OPERATING AGREEMENT, OR BY CONTINUING TO PARTICIPATE IN THE PROGRAM FOLLOWING OUR POSTING OF A CHANGE NOTICE, REVISED OPERATING AGREEMENT, OR REVISED OPERATIONAL DOCUMENTATION ON THE PARTNER WEBSITE, YOU (A) AGREE TO BE BOUND BY THIS OPERATING AGREEMENT; (B) ACKNOWLEDGE AND AGREE THAT YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS EXPRESSLY SET FORTH IN THIS OPERATING AGREEMENT; AND (C) HEREBY REPRESENT AND WARRANT THAT YOU ARE LAWFULLY ABLE TO ENTER INTO CONTRACTS (E.G., YOU ARE NOT A MINOR) AND THAT YOU ARE AND WILL REMAIN IN COMPLIANCE WITH THIS OPERATING AGREEMENT. IN ADDITION, IF THIS OPERATING AGREEMENT IS BEING AGREED TO BY A COMPANY OR OTHER LEGAL ENTITY, THEN THE PERSON AGREEING TO THIS OPERATING AGREEMENT ON BEHALF OF THAT COMPANY OR ENTITY HEREBY REPRESENTS AND WARRANTS THAT HE OR SHE IS AUTHORIZED AND LAWFULLY ABLE TO BIND THAT COMPANY OR ENTITY TO THIS OPERATING AGREEMENT.
BETWEEN:
Owatrol UK LTD, a company incorporated in England and Wales under registered number 07269691, whose registered office is at 23 Scott Road, Luton, Bedfordshire, LU3 3BF (“the Merchant”)
AND
You (“the Affiliate”)
- Interpretations
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 Operating Agreement shall include any statutory provisions, which amends or replaces it.
- Outline of Operating Agreement
2.1 The Merchant provides: A range of high quality, long-lasting coatings which offer exceptional protection and superior finish.
2.2 The Affiliate provides: a public profile for promotion of brands via social media or site
2.3 The Affiliate agrees to promote and link to the current Products available on owatroldirect.co.uk (“the Merchant’s website”).
2.4 Such promotion shall be in return for Commission Payments as detailed in clause 6 below.
2.5 The parties further agree that the Affiliate may promote and link to such other Products as may be introduced on the Merchant’s website from time to time on such terms as to be agreed between the parties.
2.6 The Affiliate acknowledges that the Merchant makes no representations concerning the volume of sales that will be generated from such Products where a percentage of revenue from these Products will be paid to the Affiliate.
- Contract Period
The term of this Operating Agreement will begin upon our acceptance of your Program application and will end when terminated by either you or us. Either you or we may terminate this Operating Agreement at any time, with or without cause, by giving the other party written notice of termination. Upon any termination of this Operating Agreement, any and all licenses you have with respect to Content will automatically terminate and you will immediately stop using the Content and promptly remove from your site and delete or otherwise destroy all links to the Partner Site, all other Content, and any other materials provided or made available by or on behalf of us to you under this Operating Agreement or otherwise in connection with the Program. We may withhold accrued unpaid advertising fees for a reasonable period of time following termination to ensure that the correct amount is paid (e.g., to account for any cancelations or returns). No termination of this Operating Agreement will relieve either party for any liability for any breach of, or liability accruing under, this Operating Agreement prior to termination.
- Linking
4.1 The Affiliate acknowledges the importance of branding and identifying links to the Merchant’s Products available on the Merchant’s website as being provided by the Merchant 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 Merchant ‘s name and or logo shall be active links back to the Merchant ‘s web site home or index page or such other pages as directed by the Merchant in order to maximise sales of the Products and Services.
4.3 Any graphic link should only use the graphics supplied by the Merchant and in the format supplied by the Service Provider.
4.4 All Merchant 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 Merchant 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 Mark-up Language (HTML) or other computer language coding producing the same result in the format ” Merchant ‘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 Merchant‘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 Merchant, the Affiliate agrees not to do the following without the express prior written approval of the Service Provider:
4.8.1 Use the Merchant ‘s web site address or any combination of the Merchant ‘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 Merchant ‘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 Merchant ‘s website address.
- Loss or Deterioration Of Service
In the event of system failure, loss of access or deterioration in service regarding access to the Merchant’s website, the Merchant shall take all reasonable steps to restore or rectify the service. The Affiliate shall not be entitled to any form of compensation.
- Products – Commission Payments
6.1 The Merchant shall pay commission at 6% (“Commission Payments”) upon all agreed Products purchased through the Merchant’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 sold, net of VAT and associated sale charges or deductions and credit card clearing payments.
6.2 All commissions are paid in British Pound Sterling via PayPal or bank transfer, on a case by case basis. Each Affiliate is responsible for always maintaining a PayPal and/or bank account through which they receive their commissions/referral fees. The Merchant assumes no responsibility for an Affiliate not maintaining their PayPal account. If you fail to setup a PayPal account and The Mercahnt is unable to pay you after one hundred-twenty (120) days after you have earned commissions or referral fees because of such failure, then you waive, and agree that you shall not be paid for, any such commissions or referral fees.
6.3 Commission Schedule
Commissions are paid monthly at a time best suited to the Merchant’s accounts department, but only if Affiliate’s account has a minimum balance of £20 at that point. Subsequent commission payments will continue to be paid out within the same subsequent schedule model.
- Products – Sales Reports
The Affiliate a can access a report within the Affiliate area of the Merchant’s website under the statistics tab containing:
(a) All Qualifying Transactions entered into during such month; and
(b) The amount of Commission Payments payable in respect of such month.
- Products and Services – Tracking
The Merchant will provide the Affiliate with the necessary tracking or partner codes in order to track sales and customers originating from the Affiliate’s website.
- Termination
11.1 Either party may terminate this Operating 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 Operating Agreement including non-performance, default or neglect of their duties, responsibilities and obligations under this Operating 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 the breach to be remedied.
11.2 Furthermore this Operating 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 their 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 their 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 Operating Agreement.
11.3 Any termination of this Operating 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 Operating 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 Operating Agreement by reason of any delay in performance or failure to perform this Operating 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.
- Notice
12.1 Any notice given by either of the parties under this Operating Agreement shall be served on the other party and addressed to that party’s signatory by email to the receiving party as set out in this clause 12:
The Content Provider
Name: Gary Coniam
Position: Managing Director
Email: g.coniam@owatroluk.com
The Content User
Information will be stored with the Content User’s profile
or such subsequent addresses as may be notified by the parties to each other.
12.2 Any such notice shall be deemed to be effectively served as follows:
12.2.1 In the case of service by email, on the next working day.
- Confidentiality
Both parties shall keep confidential the specific terms of this Operating Agreement and not disclose them save to such employees or contractors as need to know the relevant information for the purposes of performing this Operating 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 Operating 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 Operating 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.
- Press and Publicity
Both parties may announce the existence of this Operating 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 Operating Agreement but will notify the other party in advance.
- Data Protection
15.1 Both parties will comply with the General Data Protection Regulation (GDPR) and have fully compliant policies and procedures in place. Both parties confirm that they will not rent or sell customer lists, contact details or other data without the customers’ express prior approval. Either party may treat a breach of this clause 15 as a reason for termination of this Operating Agreement in accordance clause 11 of this Operating Agreement.
15.2 Furthermore, under Article 5 of the General Data Protection Regulation (GDPR) both parties will comply with the following principles to ensure any personal data will be:
15.2.1 Processed for limited purposes and not in any way incompatible with those purposes
15.2.2 Adequate, relevant and will not be excessive.
15.2.3 Accurate
15.2.4 Not kept for longer than necessary
15.2.5 Processed in accordance with the individual rights of any data subject
15.2.6 Secure
15.2.7 Not transferred to countries or other parties without adequate data protection
- Intellectual Property Rights
16.1 Each party grants to the other for the term of this Operating Agreement a non-exclusive, revocable, royalty-free licence to use their 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 Operating Agreement.
16.3 Neither party shall make any claim to the other party’s Products or Services during or after the expiry of this Operating 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 Operating 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 Operating 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.
- Limitation of Liability
17.1 Nothing in this Operating 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 Operating 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 Affiliate agrees to indemnify the Merchant against any claims, damages, losses, costs and expenses which the Merchant may sustain or incur in relation to any products 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.
- Assignment
Neither party may assign or otherwise transfer this Operating Agreement or any rights, duties and obligations hereunder without the prior consent in writing of the other party.
- Force Majeure
Neither party shall be liable for delay or failure to perform any obligation under this Operating Agreement if the delay or failure is caused by any circumstances beyond their 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 Operating Agreement by written notice to the other.
- Joint Venture or Partnership
Nothing in this Operating 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.
- Changes to Merchants products
The Merchant can change any terms of the Merchant products including pricing. The Affiliate must immediately replace existing Promotional Content with any updated Promotional Content as provided by the Merchant
- General
22.1 Failure by either party to enforce any accrued rights under this Operating 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.
22.2 The paragraphs, sub-paragraphs and clauses of this Operating Agreement shall be read and construed independently of each other. Should any part of this Operating Agreement or paragraphs, sub-paragraphs or clauses be found invalid it shall not affect the remaining paragraphs, sub-paragraphs and clauses.
22.3 No addition to or modification of any clause in this Operating Agreement shall be binding on the parties unless made in writing and signed by the signatories to this Operating Agreement or their duly authorised representatives.
22.4 This Operating Agreement sets out the entire Operating Agreement and understanding of the parties and is in substitution of any previous written or oral agreements between the parties.
- Jurisdiction
This Operating Agreement shall be interpreted, construed and enforced in accordance with English law and shall be subject to the exclusive jurisdiction of the English Courts.
- Prohibited Usage
Unless explicitly noted elsewhere, the following uses are prohibited and are grounds for immediate termination of the Affiliate Account:
24.1 Affiliates MAY NOT use the term “Owatrol” trademark, name or any of our intellectual property (or any variations, misspellings, or terms confusingly similar to any of the foregoing) for any bids for keywords or Google adwords (or similar programs at other search engines), in any search engine advertising (paid or otherwise), in any metatags, Google adwords (or similar programs at other search engines), key words, advertising, search terms, code, or otherwise; cause or create or act in any way that causes or creates or could cause or create any “initial interest confusion” over the use of our IP on the internet or in any search engine advertising; and use any social media, SEO, PPC or SEM to promote the service, without express permission of the Merchant;
24.2 Affiliates MAY NOT promote coupon codes that were not provided to them personally by the Merchant. You may NOT promote coupon codes you may have found elsewhere online. Doing so can result in the termination of your Affiliate Account and withholding of affiliate payments for violating our Agreement; and
24.3 Affiliates MAY NOT host or promote “coupon stacking” sites in regards to the Merchant where customers may combine coupons to receive additional discounts.
