General Terms & Conditions for Merchants

General Terms of Service for Merchants (advertisers and agencies)

1. Background

1. Webgains has developed an online software platform (retrievable under www.webgains.com) to be used as a marketing network whereby advertisers (Merchants) can advertise for their marketing campaigns (Affiliate Programs) to be implemented on the websites or advertising spaces of other online publishers (or Affiliates), through a series of online tools contained in the platform and through the activity of Webgains’ staff who, according to the various service level agreements, strive to enhance the results of the Affiliate Program (e.g. by setting up the Affiliate Program in the platform, providing tracking codes, selecting affiliates, checking performance, etc.).

2. For receiving the Services you shall pay to Webgains the consideration specified in the Commission Schedule, partly though fixed fees or recurring fees, partly based on successful Transactions (as define defined below)

3. You, as Merchant (or as Agency acting on behalf of the Merchant, as the case may be), are joining this marketing network by signing the Commission Schedule.

4. Please make reference to the Definitions list below.

5. These General Terms of Service replace and entirely supersede the general terms of service previously agreed between you and Webgains

2. Merchant’s obligations

1. At the Launch Date of an Affiliate Program, you accept a Starter Pack of Publishers provided by Webgains

2. You are not allowed to change Commission Rate or Cookie Period without Webgains’ consent, which shall not unreasonably denied, in any case, subject to such consent, You may, from time to time. reduce the Commission Rate and the Cookie Period, but no more than 20% within a 30 day period. .

3. At the Launch Webgains will provide you with the Webgains Tracking Code or the Webgains Container Tag containing the Tracking Code; you agree to keep them implemented at all times for the duration of the Agreement. Webgains reserves the right to amend, from time to time, the Tracking Code and/or the Container Tag insofar such amendments are reasonably necessary for Webgains to better perform its obligations under this agreement.

4. You accept that the Webgains Tracking Code is the only measure of the validity of a Transaction.

5. You will notify Webgains at least 7 days before making any changes that may affect the Webgains Tracking Code.

6. You will compensate Webgains reasonably if the tracking is removed or altered by you. Compensation will be based on a like for like period on the Webgains’ Fee and the Publisher Commission.

7. You accept that Publishers will automatically be approved within 14 days of application to an Affiliate Program unless rejected by you.

8. You will provide Webgains with the promotional tools that are reasonably required to run an Affiliate Program within 10 working days of signing the Agreement. This should include at least banners, data feed, email templates and txt links.

9. You may not make any changes which may reduce the Commission Rate and Webgains Commissions (e.g. removing a Publisher or publisher type from the Affiliate Program, the reduction in the Cookie Period for tracking Transactions, attribution methodology and changing the keyword policy) after the Affiliate Program is live, without agreement with Webgains in writing 30 days before.

10. You agree to set a Recall Period in which Transactions shall be validated. Transactions are considered valid and thereby payable unless justifiably cancelled or adjusted by you within the Recall Period.

11. Publishers and Webgains may from time to time raise Transaction Enquiries in relation to ‘untracked Transactions’ that have not been reported via the Webgains interface. You agree to either approve or reject these within 30 days of the enquiry being made. If you do not do this, the enquiry will automatically be considered Validated and thereby payable.

12. You agree that during the Agreement You will not promote, enter or attempt to enter into any other agreement or arrangement of any services (directly or indirectly) with the Publishers in the Affiliate Program or introduced to you by Webgains. If You breach this

You need to pay Webgains 10% of the revenue generated by that partner for the remainder of the Agreement or for 8 months from the breach, whichever longer.

13. You agree to disclose Your De-duplication Policy before launching the Affiliate Program. If you want to modify the De-duplication Policy during the Agreement You need to give Webgains and Publishers 30 days’ notice.

14. You accept that during any Suspension Period, the tracking of Transactions will continue wherefore payment shall still be made for any Transactions including Webgains’ Fee, Publisher Commission and the Monthly fee.

15. You will not share your log in details with a third party or give them access to Webgains platform.

16. You agree to Webgains using your brand name, logo etc. to showcase Your Affiliate Program and the Webgains Affiliate Network.

17. You agree to Webgains referencing Your name after the end of the Term of Agreement.

18. Webgains may subcontract its obligations under this agreement provided that it remains primarily liable to the Merchant for performance of this Agreement .

19. You are aware that the performance of the Affiliate Program also depends on a range of multiple factors such as consumer behaviour, exposure and placements, which are beyond the reasonable control of Webgains. Therefore Webgains does not guarantee any specific performance of the Affiliate Program .

20. Webgains reserves the right to suspend the Services should you breach this Agreement.

21. Should you be an Agency representing a Merchant, you represent and warrant you have full authority to act on behalf of the Merchant and you shall make sure the Merchant complies with all provisions of these terms, including the Commission Schedule and the Personal Data Processing Agreement with its annexes, taking joint liability with the Merchant.

22. Where a user is referred from a Publisher site to your website, or a retargeting Publisher refers the user, and you transfer any personal data on that user back to the referring Publisher for billing purposes, you have an obligation to inform the user of this process.

3. Exclusivity

1. If you have agreed on an Exclusive Agreement (see Front page) you agree not to work with Competitors to Webgains during the term of Agreement.

4. Term of Agreement

1. You agree to launch the Affiliate Program within 4 weeks after signing the Agreement. If you for whatever reason do not launch the Program within the prescribed period, Webgains reserves the right to charge 100 % of the monthly fee until You Launch.

2. The Initial Term of Agreement is 6 (six) months (unless a different Initial Term is stated in the Commission Schedule), starting on the Launch Date, unless otherwise agreed. .

3. After the Initial Term expires, this Agreement is automatically renewed for indefinite time and either Party is entitled to terminate this Agreement with a 6 months notice to the end of the month.

5. Payment and fees

1. In consideration of Webgains’ provision of the Services, You shall pay the Webgains’ Fee and the Publisher Commission.

2. You agree to pay all invoices within 14 days from the date of each respective invoice.

3. By signing this Agreement You authorize Webgains to pay the Publisher Commission to the Publishers as well as retaining Webgains’ Fee. All fees are subject to VAT.

4. Webgains can increase fees at any time giving 30 days’ notice. If you do not accept the new fee you are free to terminate the Agreement with immediate effect.

5. If You fail to make any payments when due, Webgains reserves the right to:

* Suspend Your Program, agreed Services, and restrict Your access to the Webgains platform until full payment is received, and

* Charge interest according to the applicable legislation implementing EU directive 2000/35CE or, should this agreement be subject to UK legislation, of 8 % above the Bank of England base rate (as long as the amount is permissible by law) on the amount due.

6. Upon signing the Agreement You agree that the minimum payable under the Agreement is:

* the full joining fee as set out in the Commission Schedule, and

* The monthly fees (4 weeks after signing the Agreement) for the full duration of the Initial Term.

7. You agree to pay according to the Agreement until the date of expiry of all cookies delivered legitimately during and after the period the Affiliate Program was live on the Webgains platform.

8. If specified in the Merchant contract, You shall be paying the joining fee within 14 days of signing the Agreement. Webgains will not begin any work on Your Affiliate Program until this has been paid.

9. Webgains reserves the right to recover all monies owed to it before paying the Publishers.

10. Webgains accept the following payment methods via the agreed currency: cheque, direct bank transfer, SEPA, direct debit, credit card, paypal and debit card. For payments via credit cards and paypal Webgains will charge an additional 2% handling fee.

11. If you fail to make payments according to the Agreement on due date, Webgains reserves the right to debit a nominated credit/debit card for the due amount without giving prior notice.

12. You agree that Webgains can charge for reasonable incurred costs and expenses in relation to the provision of the Services, such as, but not limited to, travel expenses. Any test orders incurring costs and expenses for Webgains that come through and are delivered will also be charged.

13. You accept that payment made for tenancy and ad hoc placements form part of Publisher Commission and will therefore be subject to Webgains’ Fee.

6. Liability and Indemnity

1. Both You and Webgains are only liable for direct damages and each Party’s liability under this Agreement is limited to £50,000 per year.

2. Webgains holds no responsibility and is not liable to you if a third party infringes any of your intellectual property rights.

3. You shall indemnify and hold harmless Webgains from any Publisher claims connected to your breach of any provisions of this Agreement .

4. You are responsible for any sub-contractors, agency partners or any others you have given access to Webgains platform to the same extent as you are responsible for your own actions towards Webgains.

5. Webgains has no direct control over the Publishers web sites but will endeavour to ensure that the content of those web sites shall not be libellous, defamatory, obscene, terrorist, racist, sexually harassing, pornographic or violate civil or criminal law. If notified that a Publisher web site is thought to contain such material, Webgains shall take reasonable action to exclude that Publisher from the network.

6. Each of the parties shall indemnify the other Party against all loss in connection with any infringement of any intellectual property rights of any third party anywhere in the world caused by or resulting from the use of material provided by either of the parties under the Agreement.

7. Intellectual property

1. You own all present and future intellectual property rights in your link, website, trade mark, trade name and domain name.

2. Webgains own all present and future intellectual property rights in the Webgains link, website, trade name and domain name.

3. The Publisher owns all present and future intellectual property rights in the Publisher website(s), trade mark, trade name and domain name.

4. Webgains provides the Services to you only a non-exclusive basis for the duration of this Agreement. This license is not assignable, transferrable or sub-licensable.

5. You grant Webgains the right to use your corporate identity and the Materials including the right to post them on Webgains website, and you shall indemnify and hold harmless Webgains and the Publishers from any third party claim, arguing that the Materials are infringing any third party right or any applicable law.

8. Confidentiality

1. Both You and Webgains shall keep any Confidential Information received from or belonging to the other Party secret and not disclose such Confidential Information to anyone (except on a need to know basis for internal use only where necessary to perform its obligations under this Agreement) or use such Confidential Information other than to perform its obligations under this Agreement without the prior written consent of the relevant Disclosing Party.

2. Sub-Clause 1 above shall not apply to any Confidential Information if:

* disclosure is required to or by any court, tribunal or governmental authority with competent jurisdiction;

* it is or becomes generally and freely publicly available through no fault of the recipient or its servants or agents; or

* It can be shown to have been independently originated by the relevant recipient or communicated to it in circumstances otherwise than where its disclosure to that recipient imparted a duty of confidence.

3. The obligations above shall remain in force for twelve (12) months after the termination of this Agreement.

9. Termination

1. Webgains has the right to terminate the Agreement with immediate effect in writing, if You are unable to pay your debts, go into liquidation or are subject to bankruptcy or to any other procedure granting protection from creditors.

2. Either party has the right to terminate this Agreement (i) if the other Party breaches any provision of this Agreement and does not remedy such breach within 7 days of receipt of a written notice from the non defaulting Party, or (ii) with immediate effect if the other Party breaches any material provision of this Agreement incapable of being cured, or (iii) with immediate effect if the other Party continuously breaches this Agreement notwithstanding any notice or reminder from the non defaulting party .

3. In addition either Party has the right to terminate this Agreement if the data processing agreement concluded between You and Webgains is terminated for whatever reason.

10. Force Majeure

1. If either of You or Webgains are delayed or if we fail to carry out our obligations under this Agreement due to circumstances we could not reasonably have expected and which are outside the reasonable control of the party affected, we are not liable to one another if we gave prompt notice to the other party as soon as the first party became aware of the circumstance.

2. If the extraordinary circumstance mentioned above is not solved within 60 days, either party is entitled to terminate the Agreement with immediate effect.

11. Data Protection

1. Both Parties are obliged to observe the applicable data protection regulations, in particular the General Data Protection Regulation 2016/679 (GDPR) on its own and to instruct employees accordingly.

2. Webgains will inform about its data processing activities in separate documents. This information is presented when personal data are collected and is available at www.webgains.com/en/privacy.

3. Regarding your customers, Webgains acts as a data processor (as defined by GDPR). Details are regulated in a separate Personal Data Processing Agreement. The acceptance of the Personal Data Processing Agreement is a precondition of any data processing by Webgains on Your behalf.

4. You are obliged to include a cookie-consent Clause in your procedure to collect consent from data subjects (as defined by GDPR) for accepting cookies from Your website. The implementation of this cookie-consent-clause is necessary for tracking successful transactions in order to collect the relevant data for tracking Transactions and for invoicing purposes.

5. Further information on data processing by Webgains is available at Webgains.com/en/privacy.

12. Other

1. You accept that Webgains owns all Publisher data collected by Webgains in accordance with this Agreement.

2. You accept that Webgains may change these Terms of use or other contract terms with 30 days’ notice by posting such information on our Website. If you do not accept new terms being to your detriment, you may terminate this Agreement with 14 days’ notice. In the absence of such notice you shall be deemed to have accepted the new terms.

3. Any notice given by you or Webgains shall be in writing, sent by registered post to the other party.

4. You acknowledge that this Agreement (together with the relevant Commission Schedule) sets out the entire agreement and understanding between us and supersedes any previous agreement between us relating to its subject matter.

5. The Law of Contracts (Rights of Third Parties) Act 1999 is excluded.

6. This Agreement shall be governed and construed in accordance with the laws of England. You shall irrevocably submit to the exclusive jurisdiction of the Courts of London in respect of any matter, claim or dispute arising under, out of or in connection with this Agreement (including as to its validity) or the legal relationships established by this Agreement.

13. Definitions

1. Advertiser or Merchant – you, as the entity entering into this Agreement with Webgains.

2. Agency – the entity entering into this Agreement with Webgains, representing an Advertiser.

3. Affiliate or Publisher – a publisher joining the Affiliate Program

4. Affiliate Program – the marketing and sales program in your own name or, as the case may be, in the name of other merchants.

5. Basket Value – the monetary amount of the Transaction.

6. Commission Rate – the amount of Commission You award for each Transaction, as shown in the Commission Schedule.

7. Commission Schedule: the form you signed with Webgains outlining the heads of terms of your agreement.

8. Competitor – a company or other entity offering competitor affiliate networks, in-house tech solutions, publishers, white-label platforms and any other affiliate marketing solutions and technology.

9. Implemented – when the Tracking Code is implemented in all variations of your website such as desktop, mobile, native applications, tablet and other payment gateways you use.

10. Cookie Period – the period from when a cookie is dropped until a set end date when you no longer are obliged to remunerate any resulting Transaction.

11. De-duplication Policy – the policy you have on de-duplicating sales which e.g. may involve having an internal De-duplication technology.

12. Launch – is when the Affiliate Programs goes live.

13. Launch Date – is the date when the Affiliate Program goes live.

14. Materials – is all materials provided by the Advertiser under this Agreement including any and all marketing and promotion materials.

15. Network Publisher – a Publisher who Webgains has approved on the Webgains Affiliate Network after screening them.

16. Program Settings – settings in the Affiliate Program made by you such as Cookie Period, Recall Period etc.

17. Publisher Commission – the charges payable for successful Transactions .

18. Recall Period – a period during which you may justifiably cancel or adjust any tracked Transactions.

19. Services – the services provided by Webgains under this agreement and under the Service Level Agreement .

20. Starter Pack – a number of Publishers allocated to the Affiliate Program at Launch as set out in the Commission Schedule.

21. Suspend – when the Affiliate Program is paused, no Services are provided by Webgains and your access to the Webgains platform may be restricted.

22. Suspension Period – a period when the Affiliate Program is suspended.

23. Transaction – a sale or a lead generated in the Affiliate Program.

24. Transaction Enquiry – an enquiry e.g. from a loyalty Publisher about a Transaction.

25. Validate – when the Advertiser proves Transactions should be cancelled or adjusted by giving a valid reason such as that the Transaction is fraudulent or invalid.

26. Webgains – Webgains Ltd, with office at 21 Farringdon Road, London

27. Webgains’ Fee – the additional fees payable to Webgains set out in the Commission Schedule.

28. Webgains’ Tracking Code – is Webgains’ proprietary tracking software used for the Affiliate Programme

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