1.1 This Referral 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 Referral Partner (together “The Parties”) and governs the provision of services or products by Mediahawk to a customer (“the Customer”) introduced by the Referral Partner to Mediahawk.
1.2 By joining the Referral Programme and completing the online application the Referral Partner 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 “Referral Data” is the Referral Partner’s 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 “Referral Programme” shall mean the marketing programme by which a Referral Partner is rewarded for referring Customers to Mediahawk.
2.3 “Commission” is money earned by the Referral Partner under the terms this Agreement. This is paid in British Pounds Sterling (GBP).
2.4 “Commission Percentage” is 15% of Qualifying Sales that will be paid to the Referral Partner 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.
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, of Mediahawk Products which are sold to Customers and which in the sole judgement of Mediahawk were sold as a result of the Customer’s introduction by the Referral Partner and the Customer was not already known by Mediahawk.
3.1 To apply to join the Referral 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 Referral Partner.
3.3 Mediahawk will decide at its discretion whether any applicant will be permitted to become a Referral Partner.
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 Referral Partner from the date the Customer account is opened by Mediahawk until such time as the Customer ceases to trade with Mediahawk, or the Agreement between the Parties is terminated in accordance with Section 6.
4.2 Payment of commission shall be made electronically up to 21 days after the end of each Commission Quarter by Mediahawk to the Referral Partner.
4.3 This agreement also acts as a self-billing agreement between the Referral Partner and Mediahawk. The Referral Partner agrees:
4.3.1 to Mediahawk self-billing in respect of the payments that are due to the Referral Partner 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 Referral Partner;
4.3.4 to notify Mediahawk immediately if the Referral Partner deregisters for VAT or if the Referral Partner 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 Referral Partner.
4.4 Mediahawk will make available a self-billing invoice to the Referral Partner 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 Referral Partner to Mediahawk.
4.6 Commission shall not be paid to the Referral Partner if the balance of the Referrals 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 amounts from Commission calculations and receive a corresponding refund from the Referral Partner.
4.8 Mediahawk reserves the right to change the Commission Percent paid to the Referral Partner under the terms of this Agreement for historic or future Qualifying Sales and to vary the Commission Percent on new Mediahawk Products and existing Mediahawk Products by giving the Referral Partner 14 days’ notice.
5.1 The Referral Partner agrees to actively promote Mediahawk Products as its primary call tracking offering into those markets that it addresses and to positively promote Mediahawk on its website and provide at least one link from the Referral Partner’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 Referral Partner website must not mislead visitors of the Referral Partner’s website.
5.3 Referral Partners must not “spam” or use unsolicited email. If Mediahawk discovers that a Referral Partner is “spamming” or using unsolicited email, Mediahawk will immediately terminate that Referral Partner’s participation in the Referral Programme.
5.4 The Referral Partner 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 Referral Partner 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 Referral Partner 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 Referral Partner.
5.6 The Referral Partner shall initially provide and inform Mediahawk of any changes to any of the Referral 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 Referral Partner is in breach or acts fraudulently, Mediahawk shall retain any Commissions that would otherwise be due to the Referral Partner.
6.4 Mediahawk has the right, without notice to the Referral Partner, 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 Referral Partner has failed to timely pay Mediahawk any amount due to Mediahawk under this or any other agreement between the parties;
6.4.2 the Referral Partner has entered into any form of insolvency or administration;
6.4.3 the Referral Partner 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 Referral Partner 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 Referral Partner in accordance with clause 4.2 the outstanding balance on their Referral account, less a £20 administration fee.
7.2 Upon termination of this agreement the Referral Partner shall:
7.2.1 remove all Referral 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 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 Referral Partner 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 Referral Partner 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 Referral Partner will keep Mediahawk fully indemnified against all reasonable costs, claims, expenses, judgments and liabilities suffered by Mediahawk howsoever arising through the Referral Partner’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 General Data Protection Regulations (GDPR 2018) in relation to the disclosure, use and storage of any personal information as defined in the Act.
10.2 The Referral 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 Referral Partner, including disclosure to third party suppliers and consultants. By submitting the Referral Data to Mediahawk the Referral Partner agrees to Mediahawk’s storage, use and disclosure of that data.
10.3 The Referral Partner 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 Referral Partner will provide and maintain details of their Referral Data and Mediahawk will use these details to communicate with and pay the Referral Partner.
11.2 The Referral Partner accepts that Mediahawk will update the terms and conditions contained in this Agreement by notifying the Referral Partner 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. This agreement is made with the Referral Partner only. The Referral Partner 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 Referral 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.