Affiliate Agreement
Last Updated on December 9th, 2020
BETWEEN

(1) Bodwyn Investments Limited
incorporated and registered in Cyprus with company number HE 435285 whose registered office is at Christodoulou Hadjipavlou, 221, Helios Court, 3rd Floor, Limassol, Cyprus (the Company); and

(2) [FULL NAME] incorporated and registered in [COUNTRY] with company number [NUMBER] whose registered office is at [REGISTERED OFFICE ADDRESS] OR with [COUNTRY] passport with number [NUMBER], whose address is at [ADDRESS] (the Affiliate).

RECITALS

(A) The Company operates the Company Website for the purpose of marketing and selling its digital courses to users.

(B) The Affiliate operates the Affiliate Website.

(C) The Company operates the Company affiliate network, and the Affiliate wishes to become a member of the Company affiliate network on the terms and conditions of this agreement so that a user of the Affiliate Website clicking directly through from the Affiliate Web Link Pages to the Company Website will land on the Company Website.

IT IS HEREBY AGREED

1. Interpretation

The definitions and rules of interpretation in this clause apply in this agreement.

Affiliate Programme Manager
the person named in clause 3.5.

Affiliate Web Link Pages
the web pages of the Affiliate Website that provide a hyperlink directly to one or more pages of the Company Website.

Affiliate Website
Affiliate's site located at www.[DOMAIN NAME] and any future version or replacement of that site.

Business Day
a day other than a Saturday, Sunday or public holiday in Cyprus when banks in Cyprus are open for business.

Company Programme Manager
the member of the Company's personnel who looks after the Company's Affiliate Programme as notified by the Company to the Affiliate from time to time.

Company Trademark Guidelines
the written guidelines for use of the Company's Trademark, logo and branding, as communicated to the Affiliate from time to time.

Company User
a user who has clicked through to the Company Website from the Affiliate Web Link Pages.

Company Website
the Company's website at any time and from time to time, currently called [WEBSITE NAME] and at www.[DOMAIN NAME] and including all databases, software, domain names, infrastructure, products and services that the Company markets for use by individual users to shop for the Company's products and services. Company Website includes all future versions and replacements of, and successors to, the site.

Effective Date
the date of this agreement.

Net Revenue
in respect of each Transaction, the gross revenue received by the Company for that Transaction, exclusive of VAT and any other tax, and after deduction of any rebate, allowance, credit or other adjustment granted or allowed in relation to that Transaction and any service fees or fulfilment or other charges (including in relation to credit cards) paid or payable by the Company to any third party (other than the Affiliate) in relation to that Transaction.

Transaction
a purchase of any course offered for sale on the Company Website by a Company User who has clicked through directly to the Company Website from the Affiliate Web Link Pages where that purchase is completed during a single browser session.

VAT
Value added tax in Cyprus.

1.1 Clause, Schedule and paragraph headings shall not affect the interpretation of this agreement.

1.2 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

1.3 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.4 Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular.

1.5 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

1.6 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.

1.7 A reference to writing or written includes faxes and email.

1.8 References to clauses and Schedules are to the clauses and Schedules of this agreement and references to paragraphs are to paragraphs of the relevant Schedule.

1.9 Any words following the terms including, include, in particular, for example 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. Company's Obligations

2.1 The Company shall provide the Affiliate with one or more uniform resource locators (URLs) to link from the Affiliate Web Link Pages to any page on the Company Website.

2.2 The Company shall provide to Company Users clicking through directly from the Affiliate Web Link Pages access to and use of the Company Website in accordance with Company's standards terms of use and other terms and conditions, policies and procedures from time to time.

2.3 The Company may at any time or times without notice to Affiliate:
(a)change the name of the Company Website;
(b)change the Company Trademark Guidelines; and
(c)target the Company Website at potential customers in such additional country or countries as it chooses.

2.4This agreement is non-exclusive and does not prevent or restrict the Company from entering into similar or different agreements with third parties. The Company makes no representation that the terms of this agreement are similar to or the same as the terms of any other agreement it has entered or may enter into with any third party.

3. Affiliate's Obligations

3.1 The Affiliate shall use all reasonable commercial efforts to market and promote the Company Website and the products and services available for sale on it so as to generate the maximum number of Transactions.

3.2 The Affiliate shall be responsible for developing, operating and maintaining the Affiliate Website and for all materials that appear on it. In particular, but without limiting the generality of the foregoing, the Affiliate shall be responsible for:
(a) the proper functioning and maintenance of all hyperlinks to the Company Website; and
(b) compliance with the Company Trademark Guidelines.

3.3 The Affiliate shall submit to the Company for prior approval any proposed use of any Company trademark, domain name, logo, and other elements of branding that the Affiliate may wish to make. The Company shall review the proposed use within a reasonable time (being ordinarily not longer than seven days) and shall not unreasonably refuse or delay approval.

3.4 The Affiliate shall provide the Company with:
(a) all co-operation in relation to this agreement; and
(b) all access to such information as may be required by the Company,
as is necessary for the proper performance of the Company's obligations under this agreement.

3.5 The Affiliate shall at all times while this agreement is in force have an Affiliate Programme Manager. The first Affiliate Programme Manager shall be:
[NAME].
The Affiliate Programme Manager shall have the authority to contractually bind the Affiliate on all matters relating to this agreement. The Affiliate shall use reasonable endeavours to ensure as far as reasonably possible the continuity of the Affiliate Programme Manager.

3.6 The Affiliate acknowledges and agrees that it has no authority to legally bind the Company in relation to Company Users, other users or anyone else and that it has not been appointed and is not the agent of the Company for any purpose. The Affiliate agrees that it shall not make to anyone any representation or commitment about the Company, the Company Website or any of the products or services available to be bought on the Company Website.

3.7 The Affiliate shall comply with all applicable laws and regulations, including laws relating to data protection, with respect to its activities under this agreement and to its business.

4. Tracking, Charges and Payment


4.1 The Company manages and tracks affiliates through the Thinkific platform. As of the Effective Date, the Company will register the Affiliate as a New user or Existing user if the Affiliate is already registered with Thinkific, and assign the Affiliate an affiliate role.

4.2 Tracking is measured and run exclusively by Thinkific as follows:
(a) The first time any prospect visits the Company Website, a browser cookie records how the prospect got there.
(b) If it was through an affiliate link, the cookie will record that information.
(c) If the prospect then goes on to sign up for an account on the Company Website, they will be associated with the said affiliate.

4.3 The Company will pay the Affiliate at the Commission Rate in respect of Net Revenue for each Transaction at the rate of 40%.

4.4 Commission is payable on a receipts, not accruals, basis so if the Company receives no revenue on any Transaction, no commission is payable.

4.5 If a sale is cancelled or refunded, any paid commission will be deducted from the amount owed to the Affiliate for any subsequent payment.

4.6 If Thinkific does not track the redirection by an Affiliate to the Company Website, then the Affiliate is not entitled to payment.

4.7 The Company has the right to exclude specific courses advertised on the Company Website, from any affiliate's commissions.

4.8 The Affiliate acknowledges and agrees that no payments are due to it under this agreement otherwise than as expressly set out in this agreement.

4.9 All sums payable under this agreement are exclusive of VAT and if VAT is chargeable it shall be paid in addition. For the duration of this agreement, the Affiliate agrees to the Company invoicing the Affiliate for commission payable and further agrees that:
(a) it is registered for VAT and will, within 14 days of this agreement, provide the Company with its VAT registration number; and
(b) it will notify the Company immediately if the Affiliate ceases to be registered for VAT, transfers its business as a going concern or becomes registered for VAT under another VAT registration number.

4.10 The Affiliate shall notify the Company of any change in its contact or address details and shall duly complete all relevant forms requiring completion by any taxation or other government authority in relation to its activities under this agreement.

4.11 The Company shall pay the Affiliate the amount due for each Transaction within 30 45 days after the Transaction, provided the Affiliate has provided its payment details (PAYPAL?) before the Transaction. If the Affiliate has not provided its payments details before the Transaction, the 30-day period starts running as soon as the said payment detail have been provided.

5. Proprietary Rights

5.1 The Affiliate acknowledges and agrees that the Company and its licensors own all intellectual property rights in the Company Website and all the Company's courses. Except as expressly stated herein, this agreement does not grant the Affiliate any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences belonging to the Company. All such rights are reserved to the Company.

6. Confidentiality

6.1 Each party undertakes that it shall not at any time during this agreement, and for a period of five years after termination of this agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 16.2.

6.2 Each party may disclose the other party's confidential information:
(a) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause 6; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

6.3 No party shall use any other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.

6.4 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.

6.5 This clause 6 shall survive termination of this agreement, however arising.

7. Data Protection

7.1 Each party shall, at its own expense, ensure that it complies with and assists the other party to comply with the requirements of all legislation and regulatory requirements in force from time to time relating to the use of personal data, including (without limitation) any data protection legislation from time to time in force in Cyprus including the Law providing for the Protection of Natural Persons with regard to the Processing of Personal Data and for the Free Movement of such Data of 2018 (Law 125(I)/2018) and the General Data Protection Regulation ((EU) 2016/679). This clause is in addition to, and does not reduce, remove or replace, a party's obligations arising from such requirements.

8. Indemnity

8.1 Each party shall indemnify the other party against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other [reasonable] professional costs and expenses) suffered or incurred by the beneficiary of the indemnity arising out of or in connection with the indemnifier's website (being the Company Website or the Affiliate's website as the case may be) or the marketing or sale of products or services on that website, provided that:
(a) the indemnifier is given prompt notice of any such claim;
(b) the beneficiary provides reasonable co-operation to the indemnifier in the defence and settlement of such claim, at the beneficiary's expense; and
(c) the indemnifier is given sole authority to defend or settle the claim.

9. Limitation of Liability

9.1 This clause 9 sets out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Affiliate:
(a) arising under or in connection with this agreement; and
(b) in respect of any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) 
arising under or in connection with this agreement.

9.2 Except as expressly and specifically provided in this agreement, all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement.

9.3 Nothing in this agreement excludes the liability of the Company for fraud or fraudulent misrepresentation.

9.4 Subject to clause 9.3:
(a) the Company shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation (whether innocent or negligent), restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss costs, damages, charges or expenses however arising under this agreement; and
(b) the Company's total aggregate liability in contract (including in respect of the indemnity in clause 8), tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the amount paid under this agreement by the Company to the Affiliate during the 12 months preceding the date on which the claim arose.

10. Duration and Termination

10.1 This agreement shall commence on the Effective Date and shall continue for the period of 3 1 years, unless otherwise terminated as provided in this clause 10. After 13 years, this agreement shall automatically renew for yearly periods, unless either party notifies the other, in writing, at least 90 days before the end of the then current term.

10.2 The Company may terminate this Agreement on notice at any time if it discontinues or withdraws, in whole or in part, its affiliate marketing programme. The Company will endeavour to give Affiliate as much notice of the same as reasonably practicable, but any such termination will be without liability to Affiliate.

10.3 The Company may also terminate this Agreement for any reason whatsoever without notice and effective immediately, if there is an issue, at the Company’s discretion, with the behaviour of the Affiliate. Such issue includes, without limitation, whether the Company considers the Affiliates’ conduct or behaviour or manner in which the Affiliate promotes or demonstrates the Company Website or course, inadequate, offensive or not according to the Company’s standards or philosophy.

10.4 Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
(a)the other party commits a material breach of any term of this agreement and (if such a breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
(b) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts;
(c) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors [other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party];
(d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company);
(e) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company, partnership or limited liability partnership);
(f) the holder of a qualifying floating charge over the assets of that other party (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;
a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of (g) the other party
(h) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days;
(i) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 10.4(b) to clause 10.4(h) (inclusive);
(j) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
(k) the other party's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this agreement is in jeopardy.

11. Consequences of Termination

11.1 On termination of this agreement for any reason:
(a) all licences and benefits granted under this agreement shall immediately terminate;
(b) each party shall return and make no further use of any equipment, property, materials and other items (and all copies of them) belonging to the other party; and
(c) the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.

12. Force Majeure

12.1 Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for six months, the party not affected may terminate this agreement by giving 30 days' written notice to the affected party.

13. Waiver

13.1 No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

14. Rights and Remedies

14.1 The rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

15. Severance

15.1 If any provision or part-provision of this agreement 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 this agreement.

15.2 If one party gives notice to the other of the possibility that any provision or part-provision of this agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.

16. Entire Agreement

16.1 This agreement 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.

16.2 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 this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.

16.3 Each party agrees that the only rights and remedies available to it arising out of or in connection with a Representation shall be for breach of contract.

16.4 Nothing in this clause shall limit or exclude any liability for fraud.

17. Assignment and Other Dealings

17.1 The Affiliate shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under this agreement without the prior written consent of the Company.

17.2 The Company may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under this agreement.

18. No Partnership or Agency

18.1 Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.

19. Variation

19.1 No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

20. Third Party Rights

20.1 A person who is not a party to this agreement shall not have any rights to enforce any term of this agreement.

21. Notices

21.1 Any notice or other communication given to a party under or in connection with this agreement shall be in writing and shall be sent by email to the email [EMAIL].

21.2 Any notice or communication shall be deemed to have been received at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause, business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.

22. Governing Law

22.1 This agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with, the law of Cyprus.

23. Jurisdiction

23.1 Each party irrevocably agrees that the courts of Cyprus shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.
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