Advertiser Standard Terms

  1. Programme

  1. In consideration of the payment of the Fees by the Client, Coull shall a) if stated on the Order Form, create the Programme for the Client; b) adapt the Programme so as to enable viewers of the Programme to interact with the Programme and link to the Client's website; and c) promote the Programme by making it available to the Network.
  2. This agreement shall, unless terminated earlier in accordance with these terms, expire on completion of the Programme and payment of all Fees due to Coull.
  3. Coull shall use reasonable endeavours to meet any performance dates set out in the Order Form but such dates shall be estimates only and time shall not be of the essence for performance of the services.
  4. Fees:
      5. Access Fee: £100/€120/$160 per month
      Set-up Fee:£0
      Tracking system :Coull
      Active cookie period:45 days

  1. Management Area & Transactions

  1. Coull shall a) provide the Client with the details and information required to access the Management Area; b) procure that the Management Area is available to the Client throughout this agreement; and c) if the Client is using the Coull Tracking System, provide the Client with the Coull Tracking System and documentation necessary to operate it.
  1. The Client shall at all times during this agreement, unless otherwise agreed in writing with Coull, use and keep fully operational and up to date the Coull Tracking System or such third party tracking system, as agreed in writing by Coull, that identifies all Transactions and generates reports similar to the Coull Tracking System and uploads those reports into the Management Area.
  2. The Client shall procure that any payment gateway used will not conflict with the Coull Tracking System or any third party tracking system used by the Client (in accordance with clause 2.2) and that such payment gateway will facilitate the tracking of all Transactions.
  1. The Client shall, not less than once in each calendar month, access the Management Area to approve or reject Transactions.  The Client shall only reject a Transaction if it is a) cancelled by the User in accordance with the Client's terms; or b) a duplicate Transaction; or c) the result of fraud.
  2. If the Client's rejection of any Transaction is disputed by an Affiliate, the Client shall, within 30 days of a request from Coull, investigate the Transaction and accept or reject the Transaction in accordance with clause 2.4.
  1. A Transaction shall be Approved if the Client approves the Transaction pursuant to clause 2.4 or the Client fails to reject the Transaction within 15 days of the end of the calendar month in which the Transaction was recorded.
  2. Subject to clause 2.8, Coull shall calculate the Fees according to the number of Transactions that are Approved and, for the avoidance of doubt, any Transaction concluded during the active cookie period (as specified on the Order Form) shall be approved by the Client in accordance with clause 2.4 notwithstanding that the Programme may have ended.
  1. If the Client does not use the Coull Tracking System or a third party tracking system (approved in accordance with clause 2.2) correctly, the Fees shall be calculated on the basis of a reasonable estimation of Transactions concluded, in Coull's reasonable opinion.
  2. The Client shall provide Coull with Reports at the frequency specified in the Order Form.

  1. Payment

  1. The Client shall maintain a positive account balance with coull at all times. If the Client account funding becomes insufficient to cover Affiliate Commissions then, at coull’s sole discretion, coull may temporarily deactivate the campaign or provide Client with a grace period for making a payment to bring the account balance positive to a minimum balance equal to £100 or 30 (thirty) days projected budget, whichever is greater. If the Merchant account is closed then Coull shall invoice the Client for the Fees on a monthly basis and the Client shall pay each invoice within thirty (30) days of the date of invoice.
  2. The Fees are exclusive of VAT.
  3. If the Transaction Fees in any given month are less than £100, the Client shall pay the Access Fee in addition to the Transaction Fees.
  4. Coull shall not be under any obligation to provide services under this agreement unless the Client has paid any applicable advanced fees, including the Set-up Fee.
  5. If the Client fails to pay any invoice when due, Coull shall have the right to charge interest on any overdue amount at the rate of eight (8) per cent per annum above the then current Bank of England base rate accruing on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly.
  6. If the Client does not dispute any Fees within thirty (30) days of the date of invoice, the Client shall be deemed to have irrevocably waived its right to dispute such Fees.
  7. The Client shall, on reasonable notice, give Coull all such information and access as Coull may reasonably require to audit the Transactions, Transactions that are Approved and the calculation of the Fees.

  1. Intellectual Property

  1. The Client grants to Coull a worldwide, non-exclusive, sub-licensable and royalty-free licence to use, reproduce and display in relation to the Programme on any marketing material, including websites, the Client IP.
  2. Coull grants the Client a non-exclusive, non-transferable licence to access the Management Area and use the Coull Tracking System for the duration of this agreement.
  3. If Coull creates the Programme, all Intellectual Property Rights in the Programme, aside from Client IP, shall vest in Coull and Coull grants a non-exclusive, non-transferable licence to the Client to use the Programme.
  4. Any marketing carried out in accordance with any guidelines provided by the Client shall be deemed to be approved by the Client and shall not require the Client's express permission.
  5. Except for the licences granted under this clause 4, nothing in this agreement shall operate to transfer any interest in the Intellectual Property Rights of one party to the other.

  1. Warranties & Indemnity

  1. Each party represents, warrants and undertakes to the other that a) the entering into of this agreement by it and the performance of its obligations and duties under this agreement does not and shall not breach any other agreement to which it is a party; and b) it has full authority to enter into this agreement.
  1. The Client represents, warrants and undertakes to Coull that a) where the Client is acting through an agent, the Client contracts with Coull as principal; b) the Programme, the Products and any processing of data by the Client shall be done in accordance with and comply with any and all applicable laws, regulations and codes of conduct in force from time to time; c) any information and data provided by the Client or any third party tracking system will be accurate and complete at the time given;  d) the Programme and any other Client IP, and the use or adaptation of the Programme and any Client IP by Coull, does not and shall not infringe the rights of any third party; and e) any sale of goods or services resulting from the Programme shall be concluded directly between the User and the Client.
  2. Coull warrants to the Client that a) it shall provide the services with reasonable care and skill; and b) subject always to satisfaction of the Client's warranty under clause 5.2(d), the use by the Client of the services shall not infringe the rights of any third party.
  3. Coull provides the services on an 'as is' basis and the Client acknowledges that Coull does not provide any warranty a) as to the availability of the services; b) the suitability of the services to the Client's requirements; or c) that Transactions or income will result from the services.
  4. If this agreement is entered into by an agent on behalf of the Client, the agent warrants and undertakes that it has full authority to enter into this agreement on behalf of the Client and indemnifies, and shall keep indemnified, Coull for any breach of this warranty.
  5. The Client indemnifies, and agrees to keep fully and effectually indemnified, Coull against any and all costs, claims, damages, demands, expenses, liabililities and loss arising out of any breach of the warranties contained at clauses 5.1 or 5.2 or any damage caused to Coull as a result of the provision of the Programme by the Client.

  1. Termination

  1. Either party may terminate this agreement immediately on giving written notice to the other if a) the other party commits a material breach of this agreement and such breach is not remediable or, if such a breach is remediable, the party in breach fails to remedy that breach within thirty (30) days of that party being notified in writing of the breach; or b) the other party goes into liquidation, whether compulsory or voluntary, except for the purposes of a bona fide reconstruction or amalgamation with the consent of the other party, whose consent may not be unreasonably withheld, or either party has an administrator appointed, or has a receiver, administrative receiver or manager appointed over any part of its assets or undertaking or is unable to pay its debts.
  2. Coull may suspend the provision of the services and / or a Programme or terminate this agreement with immediate effect by giving written notice to the Client if a) the Client fails to pay any amount due under this agreement on the due date for payment; or b) Coull reasonably believes it necessary to avoid damage or loss being suffered by Coull as a result of the Client's acts or omissions; or c) there is a breach of the warranty contained at clause 5.2(d).
  3. Coull shall have the right to terminate this agreement by giving the Client thirty (30) days' written notice.
  4. The Client shall have the right to terminate this agreement by giving Coull ninety (90) days' written notice PROVIDED THAT termination of this agreement shall not terminate any other agreement between the Client and Coull.

  1. Consequences of Termination

  1. On termination of this agreement for any reason a) the Client shall immediately pay to Coull all of Coull's outstanding unpaid invoices and interest and, in respect of services supplied and / or Transactions Approved but for which no invoice has been submitted, Coull may submit an invoice, which shall be payable by the Client immediately on receipt; and b) the Client shall return all of Coull's materials which have not been fully paid for; c) the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall not be affected; and d) clauses which expressly or by implication have effect after termination shall continue in full force and effect.
  2. The Client shall not during this agreement, or for a period of three (3) months after termination of this agreement, enter into any relationship with any Affiliate with whom  the Client did not have a relationship prior to this agreement.

  1. Limitation of Liability

  1. Nothing in this agreement shall limit or exclude Coull's liability for a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors; b) fraud or fraudulent misrepresentation; or c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
  2. Subject to clause 8.1, a) Coull shall not be liable to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, loss of business or any indirect or consequential loss arising under or in connection with this agreement including any losses that may result from a deliberate breach of this agreement by Coull, its employees, agents or subcontractors; and b) Coull's total liability to the Client in respect of all other losses arising under or in connection with this agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall not exceed the Fees received or due from the Client to Coull in the three (3) months preceding the event giving rise to liability.
  3. Provided that Coull acts in accordance with instructions from the Client, Coull shall have no liability to the Client or any Affiliate for overpayment or underpayment of charges to third parties and the Client indemnifies and keeps the Client fully indemnified against any and all loss, costs, claims, damages, demands and expenses arising out of and such underpayment or overpayment.
  4. Except as set out in this agreement, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this agreement.
  5. Coull shall not be liable to the Client or any User in relation to any Transaction and the Client indemnifies, and shall keep Coull fully and effectually indemnified, against any claim made by a User arising out of a Transaction.
  6. This clause 8 shall survive termination of this agreement.

  1. Confidentiality

  1. Each party undertakes that it shall not at any time during this agreement, and for a period of [two (2)] 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, except as permitted by clause 9.2.
  1. 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 carrying out the party’s obligations under 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 9; and b) as may be required by law, court order or any governmental or regulatory authority.
  1. Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under this agreement.

  1. Force majeure

  1. Neither party shall be liable for any delay or failure to perform its obligations under this agreement as a result of a Force Majeure Event.
  2. If the Force Majeure Event prevents Coull from providing any of the services for more than six (6) weeks, either party shall, without limiting its other rights or remedies, have the right to terminate this agreement immediately by giving written notice to the other party.

  1. General

  1. Coull may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under this agreement.  The Client shall not, without the prior written consent of Coull, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under this agreement.
  1. Any notice or other communication given under this agreement shall be in writing (not email) and shall be deemed delivered if: a) delivered personally, when left at the address; or b) sent by prepaid first-class post, recorded delivery, at 9:00am on the second business day after posting; or c) by commercial courier, at the date and time on the courier receipt; or d) sent by fax, at the time specified on the facsimile receipt. The address and / or fax number for service of communications shall be as stated on the Order Form or as otherwise notified in writing from time to time. This clause 11.2 shall not apply to the service of any proceedings or other documents in any legal action.
  2. A waiver of any right under this agreement is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
  3. If a court or any other competent authority finds that any provision of this agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of this agreement shall not be affected.
  4. Nothing in this agreement is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between the parties, nor constitute either party the agent of the other party for any purpose. Either party shall have authority to act as agent for, or to bind, the other party in any way.
  5. A person who is not a party to this agreement shall not have any rights under or in connection with it.
  1. Except as set out in this agreement, any variation, including the introduction of any additional terms and conditions, to this agreement, shall only be binding when agreed in writing and signed by Coull.
  2. This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous drafts, agreements, arrangements and understandings between them, whether written or oral, relating to its subject matter.
  3. Subject to clause 11.10, this Contract shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
  1. Coull shall be free to enforce its Intellectual Property rights in any jurisdiction.

  1. Definitions

  1. In this agreement, the following words and expressions shall have the following meanings:

Access Fee: the fee payable to Coull by the Client for access to the Network.

Affiliate: a third party that is part of the Network and promotes the Programme.

Approved: approval of a Transaction in accordance with clauses 2.4 and 2.6.

Coull Tracking System: the Coull proprietary software that, in conjunction with cookies and domain names, enables the Client to track Users' activity and Transactions.

Client IP: any Intellectual Property Rights belonging to the Client in any materials or information which the Client supplies to Coull for use in connection with the Programme.

Fees: the fees payable by the Client to Coull including the Transaction Fees, Access Fees and Set-up Fees.

Force Majeure Event: an event beyond the reasonable control of either party including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of Coull or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.

Intellectual Property Rights: any and all trade marks, rights in designs, get-up, trade, business or domain names, copyrights, future copyrights, patents, rights in databases (whether registered or not and any applications to register or rights to apply for registration of any of the foregoing), rights in inventions, know how, trade secrets and other confidential information and all other intellectual property rights of a similar or corresponding nature that may now or in the future subsist in any part of the world.

Management Area: the Coull proprietary management system that allows the Client to manage, track and report on Programmes and Transactions.

Network: the network of individuals and / or organisations through which Coull advertises and markets the Client's goods or services online or through email.

Order Form: the form setting out details of the Programme, the Fees and the Tracking Terms.

Product: goods and / or services of the Client promoted within a Programme.

Programme: as set out in the Order Form

Reports: reports setting out the number of Transactions and Transactions that are Approved.

Set-up Fee: the fee payable to Coull by the Client for the integration of Coull's system with the Client's system to enable the performance of this agreement.

Transaction: the sale or supply of goods or services by the Client to a User who has been introduced or referred to the Client via the Programme.

Transaction Fee: the fee payable to Coull by the Client for each Transaction that is Approved.

User: a consumer who purchases, applies for or enquires about the Client's products and services via the Network.