Online Terms and Conditions

Parties

  1. The Publisher; and
  2. Couller Limited Trading as Coull, a company incorporated and registered in England and Wales with company number 06679670, whose registered office is at 6th Floor Centre, Colston Avenue, Bristol, BS1 4TR (Coull), together, "the Parties".

Background

  1. The Publisher wishes to use the Services for the purpose of advertising and selling Merchants' products.
  2. (B) By clicking the box labelled 'I agree to the Coull Online Terms and Conditions' on the Coull Website the Publisher agrees to the terms of this agreement.

Agreed terms

  1. Definitions and interpretation

    1. The following definitions and rules of interpretation apply in this agreement:
    • Affiliate Network: the entity that provides the network in which Coull provides the Services.
    • Commission: commission arising from Referrals or Sales.
    • Confidential Information: confidential information (however recorded or preserved) disclosed by Coull or its employees, officers, representatives or advisers, to the Publisher, in connection with the Services including, but not limited to, any information that would be regarded as confidential by a reasonable business person relating to, the business, affairs, products, plans, operations, know-how, software or trade secrets of Coull.
    • Coull Engage: the technology known as "Coull Engage" which is described, and available for use, on the Coull Website.
    • Coull Website: the website at www.coull.com.
    • Customer: a person who uses a website operated by the Publisher and who is Referred, whether or not they are involved in concluding a Sale.
    • Initial Period: has the meaning set out in clause 5.7.
    • Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
    • Merchant: an entity which sells goods and/or services to Customers and accepts Referrals of Customers from the websites of Publishers.
    • Potential Claim-back Period: the period of 60 days from the date of a Referral or Sale.
    • Publisher: an entity which uses the Services.
    • Referral: the referral of a Customer to a website operated by a Merchant in respect of which Commission is due to the Publisher from that Merchant.
    • Sale: the sale of goods and/or services to a Customer by a Merchant in respect of which Commission is due to the Publisher from the relevant Merchant.
    • Services: the services provided via the Coull Website.

  3. Services enrolment

    1. To receive the Services a potential Publisher must submit to Coull an application for enrolment via the Coull Website.
    2. If Coull agrees to provide the Services to the potential Publisher, it will assign the Publisher a unique code with which the Services can be accessed.
    3. If the Publisher wishes to use the Services on a website other than that specified in the application for enrolment, either as an addition or a replacement, it must obtain Coull's prior written consent.
    4. The unique code referred to in clause 2.2 constitutes Confidential Information.

  4. General obligations

    1. The Publisher shall
      1. co-operate with Coull in all matters relating to the Services;
      2. provide Coull with such information and materials as Coull may reasonably require in order to supply the Services, and the Publisher shall ensure that such information is accurate in all material respects; and
      3. comply with the Data Protection Act 1998 and any superseding legislation.
      4. The Publisher shall promptly notify Coull of any performance issues relating to the Services.
      5. Coull shall provide the Services using reasonable care and skill.
      6. Coull shall have the right to make any changes to the Services which are necessary to comply with any applicable law, or which do not materially affect the nature or quality of the Services.
      7. The Publisher shall be automatically signed up to our newsletter.

  5. Record keeping

    1. For auditing purposes Coull may process any information relating to transactions made in connection with this agreement, including:
      1. outbound URLs clicked on by Customers on any websites operated by the Publisher; and
      2. the IP addresses of Customers clicking on outbound links on any website operated by the Publisher.

  6. Payment

    1. Coull may deduct from amounts payable by it under this agreement any costs (including bank charges) associated with the payment of Commission.
    2. Merchants may seek to claim back Commission if the Sale or Referral to which it relates has conferred no benefit on the Merchant, whether due to a Sale cancellation or otherwise.
    3. Coull will pay Commission to the Publisher on or before the last business day of the month following the month in which the last day of the Potential Claim-back Period falls.
    4. The Publisher may, at its own expense, on at least two weeks' notice and no more than once in any year, inspect at a time convenient to Coull, Coull's records relating to the calculation of Commission. Where Coull has underpaid the Publisher Commission by more than 5%, Coull shall reimburse the Publisher its reasonable expenses incurred in inspecting Coull's records.
    5. Coull will pay to the Publisher any payments arising under clauses 5.9 and 5.10 on or before the last business day of the month following the month to which the payment relates.

  7. VAT

    1. VAT will be added to the Commission paid by Coull to the Publisher.
    2. Coull will raise self billing VAT invoices on behalf of the Publisher and will issue the relevant invoice along with the payment of Commission to the Publisher.

  8. Intellectual property rights

    1. All Intellectual Property Rights in or arising out of or in connection with the Services, Coull Engage and the Coull Website (including all developments to and enhancements of the Services, Coull Engage and the Coull Website by either party) are owned by Coull.
    2. Coull grants the Publisher a non-exclusive and non-transferable licence to use Coull Engage, solely for the purpose of receiving the Services for the duration of this agreement.
    3. The Publisher will not acquire any Intellectual Property Rights under this agreement.

  9. Confidentiality

    1. The Publisher undertakes that it shall not at any time disclose to any person any Confidential Information without Coull's permission, except as permitted by clause 8.2.
    2. The Publisher may disclose Confidential Information:
      1. to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the Publisher's obligations under this agreement, provided those employees, officers, representatives or advisers are required to comply with this clause 9; and
      2. as may be required by law, court order or any governmental or regulatory authority provided that, to the extent it is legally permitted to do so, it gives Coull as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 8.2.2, it takes into account the reasonable requests of Coull in relation to the content of such disclosure.
    3. The Publisher shall not use Coull's Confidential Information for any purpose other than to perform its obligations under this agreement.
    4. For the avoidance of doubt, Confidential Information does not include information that:
      1. is or becomes generally available to the public (other than as a result of its disclosure by the Publisher or its employees, officers, representatives or advisers in breach of this clause 8); or
      2. was available to the Publisher on a non-confidential basis prior to disclosure by Coull; or
      3. was, is or becomes available to the Publisher on a non-confidential basis from a person who, to the Publisher's knowledge, is not bound by a confidentiality agreement with Coull or otherwise prohibited from disclosing the information to the Publisher; or
      4. was known to the Publisher before the information was disclosed to it by Coull; or
      5. the parties agree in writing is not confidential or may be disclosed.

  10. Warranty

    1. The Publisher warrants that the materials posted on the Publisher's websites:
      1. are accurate (including, but not limited to, in relation to Merchant's products and services);
      2. do not infringe any Intellectual Property Rights; and
      3. are legal, are not defamatory and are not likely to cause offence to any third party.
    2. The Publisher warrants that, in connection with this agreement or the Services, it will not:
      1. infringe any Intellectual Property Rights; or
      2. publish any material that is illegal, defamatory or likely to cause offence to any third party.

  11. Indemnity

    1. The Publisher indemnifies, and shall keep indemnified, Coull against all and any loss, damages or costs (including legal costs) sustained by Coull arising out of any breach by the Publisher of its warranties under this agreement. At the request of Coull and at the Publisher's own expense, the Publisher shall provide all reasonable assistance to enable Coull to resist any claim, action or proceedings brought against Coull as a consequence of that breach.

  12. Limitation of liability: THE PUBLISHER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE

    1. Nothing in this agreement shall limit or exclude Coull's liability for:
      1. death or personal injury caused by its negligence or the negligence of its employees, agents or subcontractors; or
      2. fraud or fraudulent misrepresentation.
    2. Subject to clause 11.1
      1. Coull shall not be liable to the Publisher, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any:
        1. loss of business or profit; or
        2. loss of goodwill or reputation; or
        3. for any indirect or consequential loss, arising under or in connection with this agreement; and
      2. Coull's total liability to the Publisher 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 amount of Commission paid by Coull to the Publisher in the 12 months immediately preceding the date of the relevant claim.
    3. To the fullest extent permitted by law, Coull excludes all warranties and representations which it may otherwise be implied to give or make, whether they would be implied by statute or common law.

  13. Term and Termination

    1. This agreement has been entered into on the date on which the Publisher clicked the box labelled 'I agree to the Coull Limited Online Terms and Conditions' on the Coull Website and shall continue in force until terminated in accordance with this clause 13.
    2. Either party may terminate this agreement by giving the other party two days' written notice.

  14. Consequences of termination

    1. Following termination of this agreement Coull shall pay the Publisher in accordance with clause 5.4 (and clause 5.5 shall not apply) any outstanding Commission owed by Coull to the Publisher.
    2. On termination of this agreement the Publisher shall:
      1. immediately cease use of the Services;
      2. remove from its website, and delete, all software, and other material, in which Coull owns Intellectual Property Rights; and
      3. return any Confidential Information to Coull.
    3. On termination of this agreement the licence granted in clause 7.2 terminates, and the Publisher may not use Coull Engage or any developments to and/or enhancements of Coull Engage for the purpose of receiving the Services, or for any other purpose.
    4. Clauses 8, 10 and 11 have effect after termination and shall continue in full force and effect.
    5. The accrued rights, remedies, obligations and liabilities of the parties as at the termination of this agreement (including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry), shall not be affected by the expiry or termination of this agreement. Clauses which expressly or by implication have effect after the termination of this agreement shall continue in full force and effect after the termination of this agreement.

  15. Assignment

    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 and may subcontract or delegate in any manner any or all of its obligations under this agreement to any third party or agent.
    2. The Publisher 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.

  16. Force majeure

    1. Coull, shall not be in breach of this agreement, nor liable for any failure or delay in performance of any obligations under this agreement to the extent that such breach, failure or delay arises from or is attributable to acts, events, omissions or accidents beyond Coull's reasonable control.

  17. Notices

    1. Any notice or other communication required to be given to Coull under or in connection with this agreement shall be in writing and shall be sent to:
      1. info@coull.com; or
      2. 6th Floor Centre, Colston Avenue, Bristol, BS1 4TR.
    2. Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at the address referred to above or, if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second business day after posting, or if sent by email, 24 hours after the email was sent.

  18. General

    1. This agreement constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to the subject matter.
    2. Nothing in this agreement is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
    3. No failure or delay by Coull 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 preclude or restrict the further exercise of that or any other right or remedy. 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.
    4. If any provision of this agreement (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of this agreement, and the validity and enforceability of the other provisions of this agreement shall not be affected, unless that would fundamentally frustrate the parties' original intentions, in which case this agreement shall terminate forthwith.
    5. A person who is not a party to this agreement shall not have any rights under or in connection with it by virtue of the Contracts (Rights of Third Parties) Act 1999 but this does not affect any right or remedy of a third party which exists, or is available, apart from that Act.
    6. Subject to clause 17.7, this agreement 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 England and Wales and the parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
    7. Coull may enforce its Intellectual Property Rights in any jurisdiction.