1. Definitions and interpretation
In the Agreement:
"Acceptance Email" means an email sent by the Merchant to the Affiliate in accordance with Clause [2.3] confirming that the Affiliate has been accepted into the Affiliate Programme;
"Affiliate" means the person (natural or legal) specified as the applicant for our Affiliate Programme on the Registration Form;
"Affiliate Programme" means the Merchant's affiliate programme detailed in the Agreement www.netanagent.com;
"Affiliate Website" means the website or websites owned and operated by the Affiliate and specified by the Affiliate on the Registration Form;
"Agreement" means the agreement between the Merchant and the Affiliate incorporating these Affiliate Terms and Conditions, the Registration Form and the Acceptance Email, and any amendments to it from time to time;
"Effective Date" means the date the Agreement comes into force as specified in Clause ;
"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 or problems with the internet or a part of the internet, hacker attacks, denial of service attacks, virus or other malicious software infections or attacks, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
"Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registered or unregistered, including any application or right of application for such rights (and the "intellectual property rights" referred to above include copyright and related rights, moral rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
"Link" means a hyperlink (whether in text or in an image or otherwise) from the Affiliate Website to the Merchant Website enabling the Merchant to track visitors from the Affiliate Website to the Merchant Website using its affiliate tracking system;
"Merchant" means Net An Agent Ltd, a company incorporated in [England and Wales] (company number: 07782918) having its registered office at The Workshop, 32-40 Tontine Street, Folkestone, Kent, CT20 1JU;
"Merchant Website" means the website accessible via the following URL: www.netanagent.com, plus any other websites notified by the Merchant to the Affiliate from time to time;
"Payments" means payments of such amounts as are specified by the Merchant from time to time on the Merchant Website in respect of the relevant type of Payment Trigger;
"Payment Trigger" means:
a property listed on the Merchant Website made by a user who first visited the Merchant Website by means of a Link and who listed a property within 30 days of the date of that first visit, providing that such user did not at any time between the visit and the purchase visit the Merchant Website by means of a hyperlink associated with another affiliate within the Affiliate Programme;
a unique user visit to the Merchant Website made by a user through a Link, providing that a user will not be considered a "unique" user if that user has at any previous time visited the Merchant Website;
payment will be made to the affiliate by the merchant within one month of the merchant receiving payment from the estate agent, that results from the sale of the listed property.
"Prohibited Materials" means content, works or other materials that constitute, or that the Merchant reasonably determines constitute:
material that breaches any applicable laws, regulations or legally binding codes;
material that infringes any third party intellectual property rights or other rights;
indecent, obscene, pornographic or lewd material;
material that is offensive or abusive, or is likely to cause annoyance, inconvenience or anxiety to another internet user;
computer viruses, spyware, trojan horses or other malicious or harmful routines, programs or software; and/or
spam or unsolicited bulk email or unsolicited commercial email.
"Registration Form" means the form on the Merchant Website enabling users to apply to become Affiliates;
"Term" means the term of the Agreement; and
"Verified Payment Trigger" means a Payment Trigger that has been verified by the Merchant using its affiliate tracking system (for the avoidance of doubt, this excludes both Payment Triggers that have not been so verified and events that are not Payment Triggers but are falsely verified as such).
In the Agreement, a reference to a statute or statutory provision includes a reference to:
that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
any subordinate legislation made under that statute or statutory provision.
The Clause headings do not affect the interpretation of the Agreement.
The ejusdem generis rule is not intended to be used in the interpretation of the Agreement.
2. The Agreement
In order to apply to become an Affiliate, the applicant must complete the Registration Form.
If the applicant makes any input errors during the order process, these may be identified and corrected by the applicant before the Registration Form is submitted by emailing firstname.lastname@example.org.
The Agreement will come into force if and when the Merchant sends to the Affiliate the Acceptance Email, following the submission of a completed Registration Form by the Affiliate.
The Agreement will continue in force indefinitely, unless and until terminated in accordance with Clause .
3. Affiliate Programme
The Affiliate will be granted access to an Affiliate dashboard on the Merchant Website, from which the Affiliate will be able to:
alter the Affiliate's account details;
access analytics information relating to the listing status;
download code to use as Links.
4. Affiliate obligations
The Affiliate will provide the Merchant with:
such co-operation as is required by the Merchant (acting reasonably) in connection with the Affiliate Programme; and
all information and documents required by the Merchant (acting reasonably) in connection with the Affiliate Programme.
The Affiliate must not:
include any Prohibited Materials on the Affiliate Website, or include any hyperlink to any Prohibited Materials on the Affiliate Website;
market the Affiliate Website using spam or unsolicited emails or other unsolicited communications, or using any form of spyware, parasite ware, adware or similar software, or using any other antisocial or deceptive methods; and
increase or seek to increase the number of Payment Trigger events using any fraudulent or deceptive method.
The Affiliate will not take any action in connection with the Affiliate Programme which might reasonably be expected to lead to the possibility of damage to the reputation and goodwill of the Merchant and/or the Merchant Website.
5. Intellectual Property Rights
The Merchant grants to the Affiliate a non-exclusive, royalty-free licence to reproduce the Links electronically and to publish the Links on the Affiliate Website.
The Merchant does not warrant that the use of the Links by the Affiliate will not infringe any third party Intellectual Property Rights or give rise to any other liability on the Affiliate.
In respect of each Verified Payment Trigger, the Merchant will make a Payment of 30% revenue share + VAT (if VAT registered) to the Affiliate, subject always to the other terms of the Agreement.
The Merchant will account to the Affiliate for all Payments due in respect of a calendar month, after the merchant has receive a fee from the Estate Agent.
If the Affiliate is registered for VAT in the European Union then:
all Payments amounts stated in or in relation to the Agreement or on the Merchant Website are stated exclusive of VAT payable by the Merchant to the Affiliate;
the Affiliate is solely responsible for accounting for such VAT to the relevant tax authorities; and
the Affiliate must provide to the Merchant with a valid VAT number.
Payments to the Affiliate will be made in [UK Pounds Sterling] by [cheque, PayPal or bank transfer (using such payment details as are provided by the Affiliate on the Registration Form)].
If the Merchant does not pay any amount properly due to the Affiliate under or in connection with the Agreement, the Affiliate may charge the Merchant simple interest on the overdue amount at the rate of % per year above the UK base rate of [HSBC Bank Plc] from time to time. ¹
No Payments will be due in respect of:
any visits to or actions upon the Merchant Website made by or on behalf of:
(i) the Affiliate;
(ii) any parent undertaking or subsidiary of the Affiliate;
(iii) any employee, agent or officer of the Affiliate or any parent undertaking or subsidiary of the Affiliate; or
(iv) any natural person related to any of the above;
any amount received by 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
Each party warrants to the other party:
that it has the legal right and authority to enter into and perform its obligations under the Agreement; and
that it will perform its obligations under the Agreement with reasonable care and skill.
All of the parties' liabilities and obligations in respect of the subject matter of the Agreement are expressly set out in the terms of the Agreement. To the maximum extent permitted by applicable law and subject to Clause [9.1], no other terms concerning the subject matter of the Agreement will be implied into the Agreement or any related contract.
The Affiliate will indemnify and keep indemnified the Merchant, and the Merchant's officers, employees, representatives, agents and subcontractors, against all damages, liabilities, losses, costs and expenses (including legal expenses) arising out of or as a result of any breach by the Affiliate of any term of the Agreement.
9. Limitations and exclusions of liability²
Nothing in the Agreement will:
limit or exclude the liability of a party for death or personal injury resulting from negligence;
limit or exclude the liability of a party for fraud or fraudulent misrepresentation by that party;
limit any liability of a party in any way that is not permitted under applicable law; or
exclude any liability of a party that may not be excluded under applicable law.
The limitations and exclusions of liability set out in this Clause  [and elsewhere in the Agreement]:
are subject to Clause [9.1];
govern all liabilities arising under the Agreement [or any collateral contract] or in relation to the subject matter of the Agreement [or any collateral contract], including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty; and
will [not limit or exclude / limit and exclude] the liability of the parties under the express indemnities set out the Agreement.
The Merchant will not be liable to the Affiliate in respect of any loss of profits, income, revenue, use, production or anticipated savings.³
The Merchant will not be liable to the Affiliate for any loss of business, contracts or commercial opportunities.
The Merchant will not be liable to the Affiliate for any loss of or damage to goodwill or reputation.
The Merchant will not be liable to the Affiliate in respect of any loss or corruption of any data, database or software.
The Merchant will not be liable to the Affiliate in respect of any special, indirect or consequential loss or damage.&sup4;
The Merchant will not be liable to the Affiliate for any losses arising out of a Force Majeure Event.
10. Force Majeure Events
Where a Force Majeure Event gives rise to a failure or delay in either party performing its obligations under this Agreement, those obligations will be suspended for the duration of the Force Majeure Event.
A party who becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in performing its obligations under this Agreement, will promptly notify the other.
The affected party will take reasonable steps to mitigate the effects of the Force Majeure Event.
Either party may terminate the Agreement immediately at any time by giving written notice to the other party.
12. Effects of termination
Upon termination all the provisions of the Agreement will cease to have effect, save that the following provisions of the Agreement will survive and continue to have effect (in accordance with their terms or otherwise indefinitely): [Clauses 1, 8, 9, 12 and 13.3 to 13.11].
If the Agreement is terminated by the Merchant, the Merchant will not have any obligation to make any further Payments to the Affiliate.
Subject to Clause [12.2]:
the Merchant will pay to the Affiliate all Payments arising from Verified Payment Triggers activated on or before the date of effective termination of the Agreement in accordance with the terms of the Agreement; and
termination of the Agreement will not affect either party’s accrued rights as at the date of termination.
Any notice given under the Agreement must be in writing (whether or not described as “written notice” in the Agreement) and must be , sent by recorded signed-for post, or email, for the attention of the relevant person, and to the relevant address or email specified on the Registration Form (in the case of the Affiliate) or the Merchant Website.
A notice will be deemed to have been received at the relevant time set out below:
where the notice sent by recorded signed-for post; and
where the notice sent by email], at the time of the transmission (providing the sending party retains written evidence of the transmission).
No breach of any provision of the Agreement will be waived except with the express written consent of the party not in breach.
If a Clause of the Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other Clauses of the Agreement will continue in effect. If any unlawful and/or unenforceable Clause would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the Clause will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant Clause will be deemed to be deleted).
Nothing in the Agreement will constitute a partnership, agency relationship or contract of employment between the parties. The Affiliate will not make any statement on the Affiliate Website or otherwise which expressly or impliedly suggest that there is any such relationship between the parties.
The Agreement may be varied by the Merchant posting a new version of the Agreement on the Merchant Website [and notifying the Affiliate in writing that the Agreement has been varied]. The Affiliate's continued participation in the Affiliate Programme after receipt of such a notice will constitute the Affiliate's acceptance of the varied Agreement.
The Affiliate hereby agrees that the Merchant may freely assign any of its rights or obligations under the Agreement. The Affiliate may not without the prior written consent of the Merchant assign, transfer, charge, license or otherwise dispose of or deal in the Agreement or any of its rights or obligations under the Agreement.
Save as provided for in Clause , the Agreement 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 Agreement are not subject to the consent of any third party.&sup5;
The Agreement constitutes the entire agreement and understanding of the parties in relation to the subject matter of the Agreement, and supersedes all previous agreements, arrangements and understandings between the parties relating to the subject matter of the Agreement. Subject to Clause [9.1], each party acknowledges that no representations or promises not expressly contained in the Agreement have been made by or on behalf of the other party.
The Agreement will be governed by and construed in accordance with the laws of England and Wales.