1.1 This Affiliate Programme Agreement (“Agreement”) is an agreement between Media Hawk Ltd (‘Mediahawk’) a company incorporated in England and Wales (Company number: 4432034) whose registered office is at 28–31 The Stables, Wrest Park, Silsoe, Bedfordshire, MK45 4HR and the Affiliate (together “The Parties”) and governs the provision of services or products by Mediahawk to a customer (“the Customer”) introduced by the Affiliate to Mediahawk.
1.2 By joining the Affiliate Programme and completing the online application the Affiliate signifies their consent to these terms and conditions and the person doing so acknowledges that they are a duly authorised person to make this agreement.
2.1 “Affiliate Data” is the Affiliate contact and banking details which includes: contact name; entity name; address; telephone number; email address; entity type; company number; VAT registration number; bank account details.
2.2 “Affiliate Programme” shall mean the marketing programme by which an Affiliate is rewarded for referring Customers to Mediahawk.
2.3 “Commission” is money earned by the Affiliate under the terms this Agreement.
2.4 “Commission Percentage” is 10% of Qualifying Sales that will be paid to the Affiliate and which is subject to the conditions in this Agreement.
2.5 “Commission Quarter” shall be 1st January to 31st March, 1st April to 30th June, 1st July to 30th September, 1st October to 31st December.
2.6 “Customers” are end-users who have purchased Mediahawk products or services.
2.7 “Mediahawk Products” are Mediahawk’s products and services made available to Customers.
2.8 “Qualifying Sales” are subscription only sales revenues in accordance with clause 11.3 from Mediahawk Products sold to Customers which in the sole judgement of Mediahawk were sold as a result of the Customer’s introduction by the Affiliate and the Customer was not already known by Mediahawk.
3.1 To apply to join the Affiliate Programme an applicant must fully complete the online application form.
3.2 The application form must be completed by a duly authorised representative of the Affiliate.
3.3 Mediahawk will decide at its discretion whether any applicant will be permitted to become an Affiliate.
3.4 If the Applicant is a company or LLP, the applicant must inform Mediahawk of its registered office and registration number.
3.5 Mediahawk reserves the right at any time and in their sole discretion to modify or remove any products or services without notice or penalty.
4.1 Mediahawk shall provide Commission at the Commission Percentage on Qualifying Sales to the Affiliate for a period of 12 months from the date the Customer is account is opened by Mediahawk.
4.2 Payment of commission shall be made electronically up to 21 days after the end of each Commission Quarter by Mediahawk to the Affiliate.
4.3 This agreement also acts as a self-billing agreement between the Affiliate and Mediahawk. The Affiliate agrees:
4.3.1 to Mediahawk self-billing in respect of the payments that are due to the Affiliate under the terms of this Agreement;
4.3.2 to account for the output Value Added Tax (if applicable) on any self-billing invoices to HM Revenue & Customs in the normal way (i.e. as chargeable outputs);
4.3.3 to not issue tax invoices for the amounts that Mediahawk self-bill to the Affiliate;
4.3.4 to notify Mediahawk immediately if the Affiliate deregisters for VAT or if the Affiliate is issued with a new VAT number;
4.3.5 to confirm that if HM Revenue & Customs, successfully and for any reason, conclude that VAT has been understated under these self-billing arrangements and HM Revenue & Customs elect to recover the additional VAT from Mediahawk, Mediahawk may recover the additional VAT from the Affiliate.
4.4 Mediahawk will make available a self-billing invoice to the Affiliate when a payment becomes due.
4.5 Mediahawk has the right to offset any fees owing under this agreement against any monies owing from the Affiliate to Mediahawk.
4.6 Commission shall not be paid to the Affiliate if the balance of the Affiliates account is less than £25.
4.7 Commission is not due where the Customer fails to pay Mediahawk or where the payment is refunded or partially refunded for any reason and Mediahawk has the right to deduct such sales from Commission calculations and receive a corresponding refund from the Affiliate.
5.1 The Affiliate agrees to actively promote Mediahawk Products as its primary offering into those markets that it addresses and to positively promote Mediahawk on its web site and in any online material published by the Affiliate and provide at least one link from the Affiliate’s web site to the relevant Mediahawk web site in the format prescribed and as varied from time to time by Mediahawk.
5.2 Links on the Affiliate website must not mislead visitors of the Affiliates website.
5.3 Affiliates must not “spam” or use unsolicited email. If Mediahawk discovers that an Affiliate is “spamming” or using unsolicited email, Mediahawk will immediately terminate that Affiliate’s participation in the Affiliate Programme.
5.4 The Affiliate shall not misrepresent Mediahawk Products, or otherwise make any claims, representations, or warranties in connection with Mediahawk other than as expressly authorised by Mediahawk.
5.5 The Affiliate agrees that they are solely responsible for identifying to Mediahawk the Customers that they are referring to Mediahawk and for ensuring that the Customer quotes the Affiliate name before placing orders with Mediahawk. Mediahawk will not retrospectively assign such Customers where there is doubt in Mediahawk’s sole opinion that the Customer was solely introduced to Mediahawk by the Affiliate.
5.6 The Affiliate shall initially provide and inform Mediahawk of any changes to any of the Affiliate Data using the prevailing method published by Mediahawk to do so. Any changes must be given to Mediahawk 14 days before the next due payment date.
6.1 The Agreement will commence when Mediahawk advises the applicant by email that their application has been accepted.
6.2 This Agreement may be terminated by either party at any time by providing one month’s written notice.
6.3 Either party may terminate the Agreement immediately if the other party is in breach of its obligations. If the Affiliate is in breach or acts fraudulently, Mediahawk shall retain any Commissions that would otherwise be due to the Affiliate.
6.4 Mediahawk has the right, without notice to the Affiliate, to terminate this agreement immediately or suspend provision of any part or all of the Mediahawk Products where Mediahawk believes, in its opinion that:
6.4.1 the Affiliate has failed to timely pay Mediahawk any amount due to Mediahawk under this or any other agreement between the parties;
6.4.2 the Affiliate has entered into any form of insolvency or administration;
6.4.3 the Affiliate has performed, or threatened to perform, any act which might undermine the technical, commercial or other viability or integrity of any of the Mediahawk Products;
6.4.4 the Affiliate promotes products or services that are directly competing with Mediahawk to existing Mediahawk Customers;
6.5 Any such termination shall not prejudice any of Mediahawk’s rights or claims.
7.1 On termination, Mediahawk will pay the Affiliate in accordance with clause 4.2 the outstanding balance on their Affiliate account, less a £20 administration fee.
7.2 Upon termination of this agreement the Affiliate shall:
7.2.1 remove all affiliate links and graphics from its web site, and refrain from publishing same in any manner;
7.2.2 be entitled only to those commissions, if any, earned prior to the date of termination excluding amounts due to actual fraud, payment card fraud, payment card charge backs and bad debt and credits for cancelled services;
7.2.3 in no event be entitled to commissions with respect to referrals delivered after the date of termination, irrespective of whether any service or product order, contract, or commitment relating thereto was entered into prior to the date of termination;
7.2.4 lose all rights and licenses under this agreement;
7.2.5 terminate use of any of Mediahawk’s intellectual property granted under the this agreement.
8.1 Nothing in this Agreement shall exclude or limit the liability of either party for death or personal injury resulting from the negligence of that party or in respect of fraud or of any statements made fraudulently by that party, or arising under Part 1 of the Consumer Protection Act 1987 in respect of any defect in Mediahawk Products.
8.2 Subject to the exception set out above and to the extent permissible by law, Mediahawk will not be liable to the Affiliate for any direct, indirect or consequential loss.
8.3 Other than as expressly set out elsewhere in this Agreement all representations, warranties, conditions and terms express or implied whether statutory or otherwise are expressly excluded by Mediahawk and by their suppliers who are participating in supplying services to the fullest extent permitted by law.
9.1 All intellectual property rights relating to the provision of Mediahawk Products are the property of Mediahawk or Mediahawk’s suppliers or other third parties that have licensed the use of such rights to Mediahawk or Mediahawk’s suppliers.
9.2 The Affiliate acknowledges and agrees that content available from Mediahawk, including but not limited to web links, text, software, music, sound, logos, trademarks, service marks, photographs, graphics, or video, is protected by copyright, trade mark, patent, or other proprietary rights and laws, and may not be used in any manner other than on the same restricted basis as specified for the purposes of this agreement.
9.3 The Affiliate will keep Mediahawk fully indemnified against all reasonable costs, claims, expenses, judgments and liabilities suffered by Mediahawk howsoever arising through the Affiliate’s infringement of third party intellectual property rights which have not been caused by actions of Mediahawk.
10.1 Both parties undertake to comply with provisions of the Data Protection Act 1998 in relation to the disclosure, use and storage of any personal information as defined in the Act.
10.2 The Affiliate Data and other data related to the provision of the Mediahawk Products will be put onto the Mediahawk database and processed by Mediahawk in servicing the relationship with the Affiliate, including disclosure to third party suppliers and consultants. By submitting the Affiliate Data to Mediahawk the Affiliate agrees to Mediahawk’s storage, use and disclosure of that data.
10.3 The Affiliate expressly agrees that data pertaining to their service, including but not limited to transaction data relating to payments can be viewed by Mediahawk and by Mediahawk’s suppliers in the normal course of their commercial activities but such data cannot be made available to other parties except where required by the law or where a suitable non-disclosure agreement has been signed with such parties.
11.1 The Affiliate will provide and maintain details of their Affiliate Data and Mediahawk will use these details to communicate with and pay the Affiliate.
11.2 The Affiliate accepts that Mediahawk will update the terms and conditions contained in this Agreement by notifying the Affiliate by email.
11.3 All amounts quoted are always exclusive of VAT and any other applicable tax, import duty, and all other duties which will be levied as required by law.
11.4 This agreement is made with the Affiliate only. The Affiliate is not permitted to transfer, assign or give away the agreement without prior written agreement of Mediahawk.
11.5 This agreement shall be governed by and construed in accordance with English and Welsh law and the parties hereby submit to the exclusive jurisdiction of the English and Welsh Courts. This Agreement contains the whole agreement between the parties in relation to the operation of the Affiliate Programme and supersedes any prior written or oral agreements relating to the same.
11.6 If any provisions of this agreement are held to be invalid under any applicable statute or rule of law, they are to that extent omitted from the agreement without affecting the validity or enforceability of the remainder.