Marketing Affiliate – General Terms
1.1 This page sets out the Conditions (as defined below) which apply to the marketing and brand representation services which the Affiliate (as defined below) named on the Appointment Form (as defined below) provides in respect of Zymplify’s (as defined below) Platform (as defined below).
1.2 The parties’ agreement is made up of (i) these Conditions; and (ii) the Appointment Form; and (iii) any other written document either issued by Zymplify (and expressly referring to and incorporating itself into the Contract) or any amendments or supplements to the Contract signed and agreed in writing between the parties. Together the above documents shall constitute and be known as the Contract, and apply to the contract between the parties to the exclusion of any other terms that the Affiliate may seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
1.3 When construing the meaning of the Contract, the documents listed in clause 1.2 shall be interpreted in a reverse order of priority in the event of any inconsistency or conflict, with documents appearing later in the list taking priority over documents appearing earlier in the list.
1.4 These Conditions are published on Zymplify’s website. The Affiliate should print or save a copy of these Conditions for its records.
1.5 Zymplify may amend these Conditions from time to time as set out in clause 13.9. Every time the Affiliate agrees a new Appointment Form with Zymplify, the Affiliate should check these Conditions to ensure that it understands the terms which will apply to the Contract at that time. This version one of these Conditions was most recently updated on [ January] 2020 [Note: please insert date these were last updated and keep a note of these every time they change].
2.1 The following definitions and rules of interpretation shall apply within the Contract:
Appointment Form means the appointment form signed by the parties setting out the terms of the commercial terms of the Contract between the parties.
Business Day means a day other than a Saturday, Sunday or public holiday in Northern Ireland when banks in Belfast are open for business;
Commission Percentage is as outlined in the Appointment Form and clause 7.1;
Conditions means these terms and conditions;
Contract means the Contract under which Zymplify appoints the Affiliate as its marketing affiliate, comprised of the Appointment Form, the Mandatory Polices, these Conditions and any other incorporated document as set out in clause 1.2 (iii);
Control shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly;
Effective Date means the date the Contract takes effect, as set out in the Appointment Form;
Initial Term means the initial term specified in the Appointment Form;
Mandatory Polices means Zymplify’s mandatory policies and procedures (if any) notified to the Affiliate from time to time, including any branding guidelines;
Net Revenue means in relation to services provided through the Platform, the price actually paid by the customer less (a) any value added or other sales tax thereon included in the price; (b) the value of any third party products or services included in the price; and/or (c) the value of any rebates, credits or other amounts thereafter repaid back to the customer;
Platform means the software as a service platform and associated applications (if any) operated by Zymplify from time to time which Zymplify may permit the Affiliate, by express notice in writing, to promote to potential customers and users within the Territory;
Services means the software as a service provided through the Platform by Zymplify directly to its customers;
Quarter means each period of three calendar months ending on 31 March, 30 June, 30 September and 31 December;
Territory means the areas or market sectors specified in the Appointment Form;
Year means the period of 12 months from the Effective Date and each consecutive period of 12 months thereafter during the period of the Contract;
Zymplify means Zymplify Limited, a company incorporated in Northern Ireland under registered company number NI068866, with registered office address at 27-28 The Promenade, Portstewart, Northern Ireland, BT55 7AE; and
Zymplify Intellectual Property means all intellectual property rights owned or used by Zymplify in connection with the manufacture and marketing of the Platform (including trade marks, service marks, business names, goodwill and the right to sue for passing off, domain names, and rights in confidential information) in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
2.2 A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
2.3 Any words following the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2.4 A reference to writing or written includes email, but not fax, provided that any emails to be sent to Zymplify shall be sent to email@example.com and any emails to be sent to Affiliate shall be sent to the email address specified for Affiliate in the Appointment Form.
2.5 A reference to any clause is to a clause of these Conditions.
2.6 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
2.7 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
2.8 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
2.9 The Contract shall be binding on, and endure to the benefit of, the parties to it and their respective personal representatives, successors and permitted assigns, and references to any party shall include that party’s personal representatives, successors and permitted assigns.
2.10 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
3.1 Zymplify appoints the Affiliate in a personal capacity as its non-exclusive marketing affiliate to market, promote and sell its Services to customers in the Territory on the terms of the Contract and the Affiliate accepts the appointment on those terms. Nothing in the Contract or otherwise shall make the Affiliate (or the Affiliate’s employees) an employee or an agent of Zymplify, and the Affiliate shall have no authority to negotiate or agree terms for the sale or licensing of the Services to customers.
3.2 The Affiliate shall indemnify against any national insurance, income tax or PAYE demands that may be levied or demanded against Zymplify from time to time in respect of the Affiliate.
3.3 Zymplify shall be free to appoint any other person as its marketing affiliate, agent, distributor, reseller or franchisee for the sale of the Services in the Territory, and the Affiliate shall not be entitled to any commission on the value of sales achieved via these channels.
3.4 Zymplify shall be entitled to market the Services directly to customers in the Territory, and the Affiliate shall not be entitled to any commission on the value of such sales.
4. AFFILIATE’S OBLIGATIONS
4.1 Consistent with its general compliance obligations under clause 11, the Affiliate represents and warrants that it shall comply with all the applicable obligations imposed on it by common law, statute as well as all best standards of practice within the industry, and ensure that all actions, conditions and things required by all applicable laws and regulations have been taken, fulfilled or done in order to: (a) enable the Affiliate lawfully to enter into, exercise its rights under and perform and comply with its obligations under the Contract; and (b) to ensure that those obligations are valid, legally binding and enforceable in accordance with their respective terms.
4.2 Except as authorised by Zymplify in writing (including email), the Affiliate represents and warrants that it shall not act in a way which will incur any liabilities on behalf of Zymplify, pledge the credit of Zymplify or commit Zymplify to any contract with the customer or imply a commitment to any particular contract terms.
4.3 The Affiliate shall be responsible for the advertising and promotion of the Services in the Territory and shall observe all reasonable directions and instructions given to it by Zymplify in this regard. The production and use by the Affiliate of any advertising materials and promotional literature not provided by Zymplify shall be subject to the prior written consent of Zymplify.
4.4 The Affiliate shall indemnify Zymplify against: (a) any liabilities imposed on Zymplify as a result of the Affiliate breaching any law from time to time in force in the Territory, or any of the terms of the Contract; and (b) any liabilities incurred by the Affiliate on Zymplify’s behalf which are not authorised under the Contract.
5. PRICES AND SUPPLY TERMS AND CONDITIONS
5.1 The Affiliate shall ensure that customers who enquire are informed that all licences the Affiliate for use of the Platform by Zymplify shall be: (a) at Zymplify’s prices negotiated directly with Zymplify from time to time; (b) on Zymplify’s standard terms and conditions from time to time.
5.2 The Affiliate shall not make any representation about the Platform other than as set out in Zymplify’s standard terms and conditions and marketing materials.
6. ZYMPLIFY’S OBLIGATIONS
6.1 Zymplify shall supply such samples, sales literature and other documentation and information and such technical, market and other support as the Affiliate may from time to time reasonably require for the purposes of promoting the sale of the Platform by Zymplify and to enable it to discharge its duties under the Contract
6.2 Zymplify reserves the right to advertise and promote the Platform in the Territory independently of the Affiliate. Zymplify shall provide the Affiliate with information on the advertising and promotion carried out by Zymplify.
7. COMMISSION AND PAYMENTS
7.1 During the term of the Contract, Zymplify shall pay to the Affiliate as commission based on the Commission Percentage of the Net Revenue paid to Zymplify in respect of paying customers of the Platform based in the Territory where such customers were first introduced to Zymplify by the Affiliate, and have accessed and subscribed to the Platform using the landing page provided by Zymplify specifically for customer leads introduced by the Affiliate. The Commission Percentage shall be as specified in the Appointment Form.
7.2 Subject to clause 7.1, commission shall become due to the Affiliate as soon as and to the extent that Zymplify receives payment in cleared funds. Where the relevant sale contract provides for payment of the price by instalments, a pro rata amount of the commission due on that contract shall become due to the Affiliate as soon as each instalment is received by Zymplify in cleared funds.
7.3 Zymplify shall pay the Affiliate the commission due under the Contract by no later than the end of the calendar month following the Quarter in which it became due.
7.4 For the purposes of establishing the amount of commission due to the Affiliate, Zymplify shall, within seven (7) days after the end of each Quarter, send the Affiliate a statement the Net Revenue generated by Zymplify during that Quarter and eligible for commission pursuant to clause 7.1.
7.5 On receipt of the commission statement referred to in clause 7.4 above, the Affiliate will issue an invoice to Zymplify (in a form suitable for VAT purposes) for the commission due to the Affiliate in respect of that Quarter.
7.6 Zymplify shall, on receipt of the commission invoice referred to in clause 7.5 above, transfer to the Affiliate the commission due to the Affiliate in respect of that Quarter.
7.7 Each party shall keep separate accounts and records giving correct and adequate details of all enquiries received and introductions made by the Affiliate on Zymplify’s behalf and separate files of vouchers, invoices and receipts relevant to the Contract, and shall permit the duly appointed representatives of the other party at all reasonable times and on reasonable prior notice to inspect copies of all such relevant accounts and records. For the avoidance of doubt, all rights in such records (including without limitation database rights and copyright) shall belong to Zymplify.
7.8 All sums payable under the Contract are exclusive of amounts in respect of value added tax (VAT), which shall be payable at the prevailing rate (if applicable). A VAT invoice shall be provided against any payment.
7.9 If Zymplify fails to make any payment due to the Affiliate under the Contract by the due date for payment, then Zymplify shall pay interest on the overdue amount at the rate of 2% per annum above HSBC Bank plc’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. Zymplify shall pay the interest together with the overdue amount.
7.10 [The provisions of clause 7 shall survive termination of the Contract in relation to all sales of the Platform that have been concluded before the date of termination.] [Note: Zymplify TBC]
7.11 All expenses, costs and charges incurred by the Affiliate in performing the Contract shall be for its own account and shall not be charged to Zymplify.
8. INTELLECTUAL PROPERTY
8.1 The Affiliate acknowledges that the Zymplify Intellectual Property belongs to Zymplify.
8.2 The Affiliate accepts that: (a) it is only permitted to use the Zymplify Intellectual Property for the purposes of and during the term of the Contract and only as authorised by Zymplify in writing; (b) save as provided in clause 8.2, it has and shall have no right to use or to allow others to use the Zymplify Intellectual Property or any part of it. It shall not seek to register any Zymplify Intellectual Property on behalf of Zymplify; (c) it shall not use any trade marks, trade names or get-up which resemble the Zymplify Intellectual Property and which would therefore be likely to confuse or mislead the public or any section of the public; (d) it shall not associate any trade mark or trade name of its own with the Platform or any materials used in connection therewith; (e) it shall not do or omit to do, or authorise any third party to do or to omit to do, anything which could invalidate or be inconsistent with Zymplify’s ownership of or the validity and enforceability of the Zymplify Intellectual Property; (f) it shall make a statement in any advertising material and promotional literature produced by or for it in connection with the Platform as to the ownership of any relevant Zymplify Intellectual Property used or referred to therein.
8.3 The Affiliate shall notify Zymplify of: (a) any actual, threatened or suspected infringement in the Territory of any Zymplify Intellectual Property of which the Affiliate becomes aware; (b) any claim by any third party of which it becomes aware that the import or sale of the Platform into or in the Territory infringes any rights of any other person.
8.4 The Affiliate shall, at Zymplify’s request and expense, take all such steps during the term of the Contract as Zymplify may reasonably require to assist Zymplify in maintaining the Zymplify Intellectual Property as valid and effective, or to take or defend any court or other dispute proceedings concerning intellectual property matters.
8.5 The Affiliate shall, as soon as it becomes aware of any actual, threatened or suspected liability claim in respect of the Platform, give notice to Zymplify of the details of the matter.
9. DURATION AND TERMINATION
9.1 The Contract shall take effect from the Effective Date. Unless terminated earlier in accordance with law or its terms, it shall continue for the Initial Term and thereafter, until one party gives the other party written notice to terminate in accordance with clause 9.2 to expire on or after the expiry date of the Initial Term.
9.2 For the purposes of clause 9.1, the notice period shall be not less than: (a) one month for the first Year; (b) two months for the second Year; (c) three months for the third Year; and (d) three months if the Contract lasts longer than three years. Notice may be given and end on any day of a calendar month.
9.3 Without affecting any other right or remedy available to it, Zymplify may terminate the Contract with immediate effect by giving written notice to the Affiliate if: (a) the Affiliate commits a material breach of any term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of fourteen (14) days after being notified in writing to do so; (b) the Affiliate repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that the Affiliate’s conduct is inconsistent with the Affiliate having the intention or ability to give effect to the terms of the Contract; (c) the Affiliate takes or has taken against it any step or action in connection with its entering into administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction or the Affiliate takes any step or action in connection with the Affiliate being made bankrupt, entering any composition or arrangement with his creditors, having a receiver appointed to any of his assets, or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; (d) if the Affiliate (being an individual) reaches the normal retiring age for agents in this sector in the Territory, or in any event the age of 65, or dies, or by reason of incapacity or illness (whether mental or physical) is incapable of managing his or her own affairs or becomes a patient under any mental health legislation; (e) Zymplify ceases to operate the Platform; (f) the Affiliate fails to discharge its compliance obligations under clause 11; (in the case of Zymplify only) any creditor of the Affiliate applies for or serves an order for payment of monies owed to the creditor by the Affiliate upon Zymplify; (g) (in the case of Zymplify only) the Affiliate breaches or terminates any representation, warranty or undertaking given by the Affiliate to Zymplify; (h) (in the case of Zymplify only) the Affiliate or any third party terminates, purports or threatens to terminate any waiver, consent, ranking or priority arrangement in favour of Zymplify; or (i) (in the case of Zymplify only) any statement made to Zymplify by or on behalf of the Affiliate is or becomes false or substantially incomplete in a material degree.
10. CONSEQUENCES OF TERMINATION
10.1 Termination of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
10.2 On termination of the Contract: (a) the Affiliate shall cease to promote, market, advertise or sell the Platform; (b) the Affiliate shall immediately cease to describe itself as an affiliate of Zymplify and cease to use all of the Zymplify Intellectual Property Rights; (c) the Affiliate shall at its own expense within 30 days of termination return to Zymplify any advertising, promotional or sales material relating to the Platform then in the possession of the Affiliate, or otherwise dispose of the same as Zymplify may instruct; (d) any payments to the Affiliate shall be suspended until such time as Zymplify (as the case may be) has collected all Net Revenue to which Affiliate is entitled under the Contract [Note: TBC]; and (e) the Affiliate shall transfer any then current Contract Forms to Zymplify and provide details of all of the Affiliate’s current enquiries from any prospective customers regarding Zymplify’s Services as well as contact details for such customers.
10.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect, including clauses 1, 2, 4.1, 4.4, 8.1, 8.2 and 10 to 13 (inclusive).
11.1 Each party shall at its own expense comply with and assist the other party to comply with all laws and regulations relating to its activities under the Contract, and with all and any conditions binding on it in any applicable licences, registrations, permits and approvals. Such laws shall include but not be limited to the Data Protection Act 2018 and subsequent data protection legislation applicable in the UK, the Bribery Act 2010, and the Modern Slavery Act 2015.
11.2 The Affiliate shall give Zymplify as much advance notice as possible of any prospective or actual changes in laws and regulations applicable to the marketing of the Platform in the Territory.
11.3 The Affiliate shall comply with the Mandatory Polices as Zymplify may update them from time to time.
11.4 For the purposes of this clause 11 only Data Protection Legislation shall mean (i) unless and until the GDPR is no longer directly applicable in the UK, the General Data Protection Regulation and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the GDPR or the Data Protection Act 2018. Data Controller, Data Subject, Personal Data, processing, processor and process, shall each have the meanings given to them in the Data Protection Legislation.
11.5 Zymplify and the Affiliate acknowledge that for the purposes of the Data Protection Legislation, the parties shall each act as separate and discrete Data Controllers in respect of any Personal Data relating to any customers introduced by the Affiliate, until such point as the Contract terminates, at which stage the Affiliate shall become a Data Processor in respect of such Personal Data.
11.6 Each party warrants to the other that it will process the Personal Data in compliance with all applicable laws, enactments, regulations, orders, standards and other similar instruments, including the Data Protection Legislation, having regard to the above. The Affiliate warrants and represents that it shall have collected the Personal Data relevant to any customers referred to Zymplify appropriately and lawfully.
11.7 The Affiliate warrants that it shall: (a) take appropriate technical and organisational measures against the unauthorised or unlawful processing of Personal Data and against the accidental loss or destruction of, or damage to, Personal Data to ensure a level of security appropriate to: (i) the harm that might result from such unauthorised or unlawful processing or accidental loss, destruction or damage; and (ii) the nature of the data to be protected; and (b) take reasonable steps to ensure compliance with those measures.
12. LIMITATION OF LIABILITY
12.1 Nothing in the Contract shall limit or exclude the liability of either party for: (a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable); (b) fraud or fraudulent misrepresentation or wilful breach of contract or misconduct; (c) the indemnity contained in clause 4.4; and (d) any matter in respect of which it would be unlawful to exclude or restrict liability.
12.2 Subject to clause 12.1: (a) Zymplify shall under any circumstances whatever be liable to the Affiliate, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for: (i) any loss of profit, revenue, or anticipated savings; or (ii) any loss that is an indirect or secondary consequence of any act or omission of Zymplify in question; and (b) the total liability of Zymplify to the Affiliate in respect of all other loss or damage arising under or in connection with the Contract , whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the total amounts paid or payable by Zymplify to the Affiliate over the period of 12 months immediately preceding the date the relevant claim or claims first arose.
13.1 Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control. If the period of delay or non-performance continues for three (3) months, the party not affected may terminate the Contract by giving fourteen (14) days’ written notice to the affected party.
13.2 The Affiliate shall not assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract without Zymplify’s prior written consent.
13.3 Zymplify may at any time assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights under the Contract.
13.4 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 13.5.
13.5 Each party may disclose the other party’s confidential information: (a) to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 13.5; and (b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
13.6 No party shall use any other party’s confidential information for any purpose other than to perform its obligations under the Contract.
13.7 The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
13.8 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
13.9 No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives), provided that Zymplify shall be free to generally amend these Conditions from time to time, and the amended version shall apply to any future contract signed between Zymplify and the Affiliate on the basis of a new Appointment Form.
13.10 A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not: (a) waive that or any other right or remedy; and (b) prevent or restrict the further exercise of that or any other right or remedy.
13.11 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
13.12 Any notice or other communication given to a party under or in connection with this Agreement shall be in writing, addressed to that party at its registered office or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, commercial courier, or email. A notice or other communication shall be deemed to have been received: (i) if delivered personally, when left at the address referred to in this clause 13.12; (ii) if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or (iii) if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed. The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
13.13 No one other than a party to the Contract, their successors and permitted assignees, shall have any right to enforce any of its terms.
13.14 The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the law of Northern Ireland and subject to the exclusive jurisdiction of the Northern Irish courts.