Affiliate Marketing Agreement

1 INTERPRETATION

The definitions and rules of interpretation in this clause apply in these terms and conditions.
"Affiliate”: the person agreeing to enter into the Orpheus Affiliate programme on these terms and conditions.
“Affiliate URL”: the one or more unique Uniform Resource Locator(s) provided by Orpheus to the Affiliate to link to the Landing Pages and monitor click throughs of Orpheus Users.
"Business Day": a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
"Business Hours": the period from 9.00 am to 5.00 pm on any Business Day.
"Commission": USD100.
“Contract”: the contract between the Affiliate and Orpheus for affiliate marketing services in accordance with these terms and conditions.
"Effective Date": the date on which the Affiliate accepts these terms and conditions and enters into the Contract through their account on the Website.
"Landing Pages": the web page(s) of the Orpheus Website that Orpheus is to develop and maintain and that the Affiliate URL will link to.
"Orpheus Trade Mark Guidelines": the written guidelines for use of Orpheus's Trade Mark, logo and branding from time to time.
"Orpheus User": a user who has clicked through to the Orpheus Website from the Affiliate URL (or, where relevant, the Uniform Resource Locator(s) provided by Orpheus to other affiliates).
"Orpheus Website": Orpheus's website at any time and from time to time, currently Orpheus Mind Technologies, and at www.orpheusmindtechnologies.com and including all databases, software, domain names, infrastructure, products and services that Orpheus markets for use by individual users to shop for Orpheus's products and services. Orpheus Website includes all future versions and replacements of, and successors to, the site.
"Transaction": a purchase of a level 1 therapists course offered for sale on the Orpheus Website by an Orpheus User who has, subject always to clause 4.2, clicked through directly to the Orpheus Website via the Affiliate URLs only.
"VAT": Value added tax or any equivalent tax chargeable in the UK or elsewhere.

1.1 Clause, Schedule and paragraph headings shall not affect the interpretation of these terms and conditions.

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

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

1.4 A reference to legislation or a legislative provision is a reference to it as it is in force as at the date of the Contract.

1.5 A reference to legislation or a legislative provision shall include all subordinate legislation made as at the date of the Contract under that legislation or legislative provision.

1.6 A reference to writing or written includes email but not fax.

1.7 Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.

2 ORPHEUS'S OBLIGATIONS

2.1 Orpheus shall provide the Affiliate with one or more Affiliate URLs to link to the Landing Page.

2.2 Orpheus shall be responsible for developing, operating and maintaining the Orpheus Website.

2.3 Orpheus shall provide to Orpheus Users clicking through directly via the Affiliate URLs access to and use of the Orpheus Website in accordance with Orpheus's standard terms of use and other terms and conditions, policies and procedures from time to time.

2.4 Within 14 days after the end of each calendar month, Orpheus will provide the Affiliate with a report in Orpheus's standard form setting out for the month concerned the total number of Transactions, together with a statement setting out the amounts due to Affiliate in respect of these terms and conditions calculated in accordance with clause 4 below.

2.5 Orpheus may at any time or times without notice to Affiliate:

2.5.1 change the name of the Orpheus Website;

2.5.2 change Orpheus Trade Mark Guidelines; and

2.5.3 target the Orpheus Website at potential customers in such additional country or countries as it chooses.

2.6 These terms and conditions are non-exclusive and do not prevent or restrict Orpheus from entering into similar or different agreements with third parties. Orpheus makes no representation that the terms of these terms and conditions 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 Orpheus 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 media on which it references or places the Affiliate URL and for all materials that appear on it. In particular, but without limiting the generality of the foregoing, the Affiliate shall be responsible for:

3.2.1 the proper functioning and maintenance of all hyperlinks to the Orpheus Website (including the Affiliate URLs); and

3.2.2 compliance with the Orpheus Trade Mark Guidelines.

3.3 The Affiliate shall submit to Orpheus for prior approval any proposed use of any Orpheus trade mark, domain name, logo, and other elements of branding that the Affiliate may wish to make. In particular the Affiliate must not (unless otherwise authorised by Orpheus) describe themselves as, or hold themselves out, or in any way reference, being associated or accredited with Orpheus other than as being a part of the Orpheus Affiliate marketing programme. Orpheus 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 Orpheus with:

3.4.1 all co-operation in relation to the Contract; and
3.4.2 all access to such information as may be required by Orpheus,
as is necessary for the proper performance of Orpheus's obligations under these terms and conditions.

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

3.6 The Affiliate shall comply with all applicable laws and regulations, including laws relating to data protection, with respect to its activities under these terms and conditions and to its business.

3.7 In the event of any delays in the Affiliate's provision of assistance as agreed by the parties, Orpheus may adjust any dates for performance or delivery provided to the Affiliate as reasonably necessary.

4 CHARGES AND PAYMENT

4.1 Orpheus will pay the Affiliate the Commission in respect of each Transaction.
4.2 Transactions shall be monitored and tracked by Orpheus through the use of cookies automatically downloaded onto the device of any person clicking through the Affiliate URL. Such cookies shall expire 14 days after their download and they can be affected by any cookies relating to other Orpheus affiliates which may be present on the relevant device. This will impact the Commission payable as follows:
4.2.1 if an Orpheus User completes a Transaction within 14 days of clicking through to the Landing Page via the Affiliate URL, then (subject to clause 4.2.3) the Commission shall be due to the Affiliate;
4.2.2 if an Orpheus User concludes a Transaction after the above 14 day period, then no Commission shall be due to the Affiliate given that cookies will have expired and Orpheus will not be able to monitor or track whether or not an Orpheus User concluded the Transaction after clicking through the Affiliate URL;
4.2.3 if an Orpheus User accesses the Landing Page via the Affiliate URL but has, in the period of 14 days beforehand, also accessed the Landing Page via the URL of another Orpheus affiliate, this will prevent the cookies which identify the Affiliate from being downloaded to the device of the Orpheus User. In that scenario any Commission arising shall not be due to the Affiliate and may instead become due to that other affiliate.
4.3 Commission is payable on a receipts, not accruals, basis so if Orpheus receives no revenue on any Transaction, no commission is payable.
4.4 Affiliate acknowledges and agrees that no payments are due to it under the Contract otherwise than as expressly set out in these terms and conditions.
4.5 All sums payable under these terms and conditions are inclusive of all VAT, sales taxes, duties, levies or other charges.
4.6 The Affiliate shall notify Orpheus 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 these terms and conditions.
4.7 The report that Orpheus sends to the Affiliate under clause 2.4 shall include a statement of the amounts due from Orpheus to the Affiliate for Transactions in the month to which the report relates. Except in the case of manifest error, Orpheus shall pay the Affiliate the amount thereby shown to be due within 30 days after the date of the report.
5 PROPRIETARY RIGHTS
The Affiliate acknowledges and agrees that Orpheus and its licensors own all intellectual property rights in the Orpheus Website and all Orpheus's products and services. Except as expressly stated herein, these terms and conditions does not grant the Affiliate any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences belonging to Orpheus. All such rights are reserved to Orpheus.
6 CONFIDENTIALITY
6.1 Each party undertakes that it shall not at any time during the Contract, and for a period of five years after termination, disclose to any person any confidential information concerning the business, assets, affairs, customers, clients or suppliers of the other party, except as permitted by clause 6.2
6.2 Each party may disclose the other party's confidential information:
6.2.1 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 these terms and conditions. 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
6.2.2 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 these terms and conditions.
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 the Contract, however arising.
7 DATA PROTECTION
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 the UK including the Data Protection Act 2018 and the General Data Protection Regulation ((EU) 2016/679) as retained in UK law. 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 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 Orpheus 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:
8.1.1 the indemnifier is given prompt notice of any such claim;
8.1.2 the beneficiary provides reasonable co-operation to the indemnifier in the defence and settlement of such claim, at the beneficiary's expense; and
8.1.3 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 Orpheus (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Affiliate:
9.1.1 arising under or in connection with these terms and conditions; and
9.1.2 in respect of any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with these terms and conditions.
9.2 Except as expressly and specifically provided in these terms and conditions, 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 these terms and conditions.
9.3 Nothing in these terms and conditions excludes the liability of Orpheus:
9.3.1 for death or personal injury caused by Orpheus's negligence; or
9.3.2 for fraud or fraudulent misrepresentation.
9.4 Subject to clause 9.3:
9.4.1 Orpheus 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 these terms and conditions; and
9.4.2 Orpheus'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 the Contract shall be limited to the amount paid under the Contract by Orpheus to the Affiliate during the 12 months preceding the date on which the claim arose.
10 DURATION AND TERMINATION
10.1 The Contract shall commence on the Effective Date and shall continue until terminated as provided in this clause 10.
10.2 Either party may terminate the Contract by giving the other no less than 28 days’ notice.
10.3 Orpheus may terminate the Contract on notice at any time if it discontinues or withdraws, in whole or in part, its affiliate marketing programme. Orpheus will endeavour to give Affiliate as much notice of the same as reasonably practicable, but any such termination will be without liability to Affiliate.
10.4 Without affecting any other right or remedy available to it, either party may terminate these terms and conditions with immediate effect by giving notice to the other party if:
10.4.1 the other party commits a material breach of any term of these terms and conditions and (if such a breach is remediable) fails to remedy that breach within a period of 7 days after being notified in writing to do so;
10.4.2 the other party takes, or has taken against it (other than in relation to a solvent restructuring) any step or action towards it entering bankruptcy, administration, provisional liquidation or any composition or arrangement with its creditors, applying to court for, or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court), being struck off the Register of Companies, having a receiver appointed to any of its assets, or entering a procedure in any jurisdiction with a similar effect to a procedure listed in this clause 10.4.2;
10.4.3 the other party suspends or ceases, or threatens to suspend or cease, carry on business; or
10.4.4 the other party’s financial position deteriorates so far as to reasonably justify the opinion and its ability to give effect to the terms of the Contract is in jeopardy; or
10.4.5 the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical) is incapable of managing their own affairs or becomes a patient under any mental health legislation.
11 CONSEQUENCES OF TERMINATION
11.1 On termination of the Contract for any reason:
11.1.1 all licences and benefits granted under these terms and conditions shall immediately terminate;
11.1.2 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
11.1.3 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 GENERAL
12.1 Neither party shall be in breach of these terms and conditions or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure result from events, circumstances or causes beyond its reasonable control. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for six months, the party not affected may terminate these terms and conditions by giving 30 days' written notice to the affected party.
12.2 A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
12.3 A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
12.4 The rights and remedies provided under these terms and conditions are in addition to, and not exclusive of, any rights or remedies provided by law.
12.5 If any provision or part-provision of these terms and conditions 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 these terms and conditions.
12.6 If any provision or part-provision of these terms and conditions 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.
12.7 The Contract constitutes the entire agreement between the parties.
12.8 Each party acknowledges that in entering into these terms and conditions it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these terms and conditions. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these terms and conditions.
12.9 Nothing in clause 12.7 or clause 12.8 shall limit or exclude any liability for fraud.
12.10 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 these terms and conditions without the prior written consent of Orpheus.
12.11 Orpheus 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 these terms and conditions.
12.12 Nothing in these terms and conditions 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.
12.13 No variation of these terms and conditions shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
12.14 The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of these terms and conditions.
12.15 Any notice given to a party under or in connection with these terms and conditions shall be in writing and shall be:
12.15.1 delivered by a method listed in clause 12.16 to its registered office (if a Orpheus) or its principal place of business (in any other case); or
12.15.2 sent by email to the following addresses (or an address substituted in writing by the party to be served):
12.15.2.1 Affiliate: their registered email address.
12.15.2.2 Orpheus: info@orpheusmindtechnologies.com; with the subject heading “Orpheus Affiliate Program”.
12.16 Any notice shall be deemed to have been received:
12.16.1 if delivered by hand, at the time the notice is left at the proper address
12.16.2 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;
12.16.3 if sent by pre-paid airmail providing proof of delivery, at 9.00am on the fifth Business Day after posting; or
12.16.4 if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.
12.17 The Contract 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 England and Wales.
12.18 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.