This Agreement is made between You (“Affiliate”); and Badoo Trading Limited a company incorporated in England and Wales with registered number 7540255 whose registered office is at The Broadgate Tower, Third Floor, 20 Primrose Street, London, England, EC2A 2RS (the “Company”) (together the “Parties”).
- (A)The Company operates the social networking website www.badoo.com and the mobile website www.m.badoo.com (each and together the “Badoo Website”).
- (B)The Company has instituted a programme whereby third parties can act on behalf of the Company to market the Company and increase the number of users on the Badoo Website.
- (C)The parties intend to enter into an arrangement whereby the Affiliate will (subject to the terms and conditions this Agreement) market and promote the Badoo Website through use of the Company’s banners, e-mails, articles, text links and/or creatives provided by the Company which can be posted on the Affiliate Website (“Affiliate Website”) or used in subscriber based emails (“Affiliate Campaign”) (together the Affiliate Website and the Affiliate Campaign being the “Affiliate Programme”).
- (D)The Company will pay the Affiliate a commission (“Affiliate Commission”) as defined in clause 5.1, depending on the volume of new registered users (as defined in clause 2) generated to the Badoo Website through the Affiliate Programme.
1. Qualifying Conditions
The Affiliate agrees, represents and warrants that:
- 1.1it is the proprietor of all necessary rights, licenses and permits to operate the Affiliate Programme to market, promote and advertise the Badoo Website in accordance with the provisions of this Agreement; and
- 1.2it will comply with all applicable rules, laws and regulations in connection with the promotion of the Badoo Website.
2. Affiliate Commission
- 2.1For the purposes of this Agreement a “New Registered User” shall mean a person directed to the Badoo Website through the Affiliate Programme who has i) registered as a user of the Badoo Website (evidenced by the unique tracking identification code referred to at clause 3.2), ii) provided their email address, and iii) uploaded a photograph to their profile.
- 2.2The Affiliate Commission shall accrue monthly in respect of all New Registered Users who in the relevant month make a payment to the Company for any of the services offered on the Badoo Website (“Paying Users”).
3. Responsibilities and Obligations of the Company
- 3.1.The Company shall provide the Affiliate with such banners, e-mails, articles, text links and/or creatives (collectively “Badoo Content”), as the Company considers necessary for the proper implementation of the Affiliate Programme.
- 3.2.A unique tracking identification code will be assigned to all New Registered Users referred to the Badoo Website in accordance with clause 2.1.
- 3.3.The Company shall monitor and record the net revenue generated from New Registered Users each month, record the total amount of Affiliate Commission (as defined in clause 5.1) earned from such New Registered Users and provide the Affiliate with a breakdown of Affiliate Commission earned.
- 3.4.The Company may refuse the registration or close the account of any of the New Registered Users if the Company, in its sole discretion, deems it necessary to comply with the Company’s policies, from time to time in force and/or to protect, amongst other things, the reputational and commercial interests of the Company and the subject of any such closed account shall not be considered a New Registered User for the purposes of calculating any Affiliate Commission in accordance with clause 5.1.
4.Responsibilities and Obligations of the Affiliate
- 4.1The Affiliate shall:
- a.feature the Badoo Website on the Affiliate Website and/or Affiliate Campaign strictly in accordance with the “Guidelines” set out on the company’s affiliate website, http://corp.badoo.com/affiliates/;
- b.use its best efforts to actively and effectively advertise, market and promote the Badoo Website as widely as possible in order to maximize the benefit to the parties, provided always that the Affiliate will at all times abide by the Company’s policies, as in force from time to time and/or made accessible via the Company’s affiliate website http://corp.badoo.com/affiliates. The Company reserves the right to terminate this Agreement immediately if at any time the Affiliate ceases to operate the Affiliate Programme;
- c.market the Badoo Website and refer potential customers to the Badoo Website at its own cost and expense.
- d.use only the Badoo Content provided by the Company (which are the only basis upon which the Affiliate Commission will be calculated) and shall not change or modify in any way the Badoo Content without prior written authorisation from the Company; and
- e.be responsible for the development, operation, and maintenance of the Affiliate Programme including all updates to the Badoo Content provided by the Company (via the Company’s affiliate website http://corp.badoo.com/affiliates/ or otherwise) appearing thereon subject to clause 4.1(d).
- 4.2Affiliate shall be responsible and shall be liable for:
- a.any chargebacks or reversed payments incurred by the Company attributable to any New Registered Users referred by the Affiliate including but not limited to those resulting from fraudulent transactions;
- b.any fines, penalties or any other fees (together with any associated costs) incurred by the Company arising howsoever out of any chargebacks or reversed payments referred to at clause 4.2(a) above; and
- c.any fines, penalties or other fees which may be levied on the Company or Affiliate as a result of the Affiliate’s contravention of any current and future by-laws, rules or regulations applicable to the parties under this Agreement.
- 4.3 In the event of chargebacks, reversed payments, penalties or other fees arising in accordance with clause 4.2 (for the purposes of this clause the “Charges”) the Company shall notify the Affiliate of the Charges and shall deduct any Charges it incurs from any Affiliate Commission due to the Affiliate upon notification of the Charge. In the event that such Affiliate Commission is insufficient to cover any such Charges, the Company shall notify the Affiliate of the amount outstanding and the Affiliate shall within 14 days of such notification pay to the Company the outstanding amount.
- 4.4The Affiliate hereby agrees, represents and warrants that:
- a.it shall not feature within the Affiliate Programme or undertake any activity in connection with this Agreement which is libellous, abusive, discriminatory, obscene, defamatory, illegal, unlawful or otherwise unsuitable or which contains sexually explicit, pornographic, obscene or graphically violent materials or breaches any of the Company’s policies as in force from time to time;
- b.it shall not actively target any person who is under the legal age of majority in the applicable jurisdiction;
- c.it shall not actively target any jurisdiction where dating and the promotion thereof is illegal;
- d.it shall not generate traffic to the Badoo Website by illegal or fraudulent activity, including but not limited to:
- i.sending spam e-mails;
- ii.incorrect metatags; or
- iii.registering itself, or its relatives, friends, employees, officers, agents, representatives or other third parties as New Registered Users, or in any other way attempt to artificially increase the Affiliate Commission payable or to otherwise defraud the Company. Violation of this provision shall be deemed to be fraud; and
- e.it shall not present the Affiliate Programme in such a way that it might evoke any risk of confusion with the Company, the Badoo Website and/or Badoo communications or convey the impression that the Affiliate Website and/or Affiliate Campaign partly or wholly originated from the Company;
- f.without prejudice to authorised dealings with the Badoo Content in accordance with this Agreement, it shall not use the term “Badoo” or other terms, trade marks and other intellectual property rights that are owned by or licensed to the Company or any of its associated companies or otherwise than in accordance with this Agreement unless the Company consents to such use in writing;
- g.any information supplied by it in connection with this Agreement is accurate, complete, true and not misleading;
- h.it shall not in the provisions of its services (whether under this Agreement or otherwise) display any content or engage in any conduct that is prejudicial to the image or reputation of the Company, its parents, subsidiaries, associated companies or the Badoo Website;
- i.it shall not in any way whether directly or indirectly use information from or relating to users of the Badoo Website for purposes of solicitation, advertising, unsolicited e-mail, spamming, harassment, invasion of privacy, or conduct which may be otherwise deemed to be objectionable conduct;
- j.it is in full compliance with all applicable national, federal, state, and local laws, rules, regulations, requirements and/or other standards established by any governmental authority having jurisdiction to control the activities goverened by this Agreement which are in effect prior to the effective date of this Agreement, or which become effective during the term of this Agreement; and
- k.the Affiliate Programme will be free of any viruses.
- 4.5Should the Company suspect that the Affiliate has breached any provision contained herein, the Company reserves the right to freeze the Affiliate’s account and withhold any Affiliate Commission due to Affiliate pursuant to this Agreement for so long as is reasonably considered necessary by the Company to carry out a proper investigation. Following any such investigation the Company may at its sole discretion remove Affiliate from the Affiliate Programme and terminate this Agreement, in which case clauses 7.3, 7.4 and 7.5 of this Agreement shall apply to the Affiliate.
- 5.1.The Company shall pay to the Affiliate an Affiliate Commission equal to a percentage of the total net revenue received by the Company from Paying Users in each month while this Agreement remains in force, such percentage to be in accordance with the table below:
|Paying Users per Month ||% Net Revenue |
|0-200 ||40% |
|201-400 ||50% |
|401-600 ||60% |
|>600 ||75% |
- 5.2The Affiliate Commission will be calculated at the end of each calendar month and payments of Affiliate Commission will be made to the Affiliate pursuant to this Agreement not more than 45 days following the end of the month in which the Affiliate Commission accrued, provided that the Affiliate Commission due exceeds £50 for UK bank transfers and €/$100 for non UK bank transfers (the “Minimum Threshold”).
- 5.3.If the Affiliate Commission due is less than the Minimum Threshold, it shall be carried over to the following month and shall only be payable if and when it exceeds the Minimum Threshold.
- 5.4.If an error is made in calculating the Affiliate Commission, the Company reserves the right to correct such calculation at any time and will immediately pay any underpayment to, or reclaim overpayment from the Affiliate, without limiting the obligation of the Affiliate to repay any overpayment immediately. The Company is entitled to set off the amount of such overpayment from future payment of Affiliate Commission.
- 5.5.The Company reserves the right to withhold Affiliate Commissions and terminate this Agreement at any time if any New Registered Users are, in the Company’s sole discretion, deemed to be fraudulent.
- 5.6.No Affiliate Commission shall be due when the traffic generated by the Affiliate pursuant to this Agreement is deemed to be fraudulent or otherwise in breach of any provision of this Agreement.
- 5.7.The Affiliate shall repay to the Company all Affiliate Commission received based on fraudulent transactions or a breach of this Agreement in accordance with clause 10 together with all legal and other costs incurred by the Company in recovering such Affiliate Commission from the Affiliate.
- 5.8.The Company reserves the right to change the requisite Minimum Threshold of activity on Affiliate accounts. Such Minimum Threshold levels will be continuously reviewed by the Company and the Company reserves the right to terminate this Agreement if the Affiliate activity does not reach the Minimum Threshold, as determined by the Company from time to time.
- 5.9.Affiliate shall be responsible for the payment of any and all charges, fees, penalties or interest applied by any bank, building society or other organisation in relation to any transactions between Company and Affiliate arising out of or in connection with this Agreement.
For the avoidance of doubt, the Company shall own and be entitled to use all data and information provided by any New Registered User or any other person referred to the Badoo Website via the Affiliate Website and/or the Affiliate Programme at any time, including all data provided at the time of registration including any third party email addresses or other data provided by any New Registered User or other user to the Badoo Website at any time whether or not via the Affiliate Website or the Affiliate Campaign.
- 7.1.This Agreement may be terminated immediately at any time by the Company giving notification to the Affiliate in writing.
- 7.2Without prejudice to any rights that have accrued under this Agreement or any of its rights or remedies, the Affiliate may terminate this Agreement by giving one (1) months written notice to the Company if the Company commits a material breach of this agreement and (if such breach is remediable) fails to remedy that breach within a period of thirty (30) days after being notified in writing to do so.
- 7.3.On termination of this Agreement, for any reason:
- a.The Affiliate must remove all references to “Badoo”, the Company, its parents, subsidiaries, associated companies, affiliates, officers, representatives, agents, and employees (if any) from the Affiliate Website and/or the Affiliate Campaign as well as any such references in any of the Affiliate’s materials or communications and cease use of the Badoo Content;
- b.All rights and licenses granted to the Affiliate under this Agreement shall immediately terminate and the Affiliate will cease the use of any intellectual property belonging to the Company including, without limitation the “Badoo” trade mark, and any other designations owned by or licensed to the Company;
- c.At the request of the Company, the Affiliate shall destroy or return to the Company all Badoo Content or confidential information (as defined in clause 18) in the Affiliate’s possession, custody or control to the Company and any materials (whether in written or other recorded form) containing, or making use of Badoo Content or confidential information. The Affiliate shall immediately upon the request of the Company confirm in writing that it has destroyed or permanently erased all Badoo Content and confidential information and all copies thereof.
- 7.4.The Affiliate will be entitled only to Affiliate Commission earned up to the effective date of termination. The Company may withhold the Affiliate’s final payment for a reasonable time to ensure that the correct amount is paid. No Affiliate Commission shall be due to the Affiliate in respect of any money received by the Company from New Registered Users after the effective date of termination.
- 7.5.Clauses 7.3, 7.4, 8.3, clauses 9.1 through to 9.4, and clauses 10, 11.1, 11.2, 12 and 18 shall continue to apply after the termination of this agreement
8.Pay Per Click (“PPC“) and Domain Name Guidelines
- 8.1. Affiliate shall not use the Badoo Website in any PPC campaigns to send traffic through to the Badoo Website. Affiliates wishing to promote the Company using PPC channels must do so using their own websites or landing pages.
- 8.2. Should the Affiliate bid on any keywords in any way including the term “Badoo” or any misspelling or variation of the term the Company shall be entitled to terminate this Agreement immediately without prior written notice to Affiliate.
- 8.3.The Affiliate shall at all times during and after the term of this Agreement comply with the Keyword Policy set out in Schedule 1.
- 9.1.The Company’s services, the Badoo Website and the Badoo Content (for the purposes of this clause “the Services”) are provided as is. The Company hereby disclaims all other representations, warranties, or conditions of any kind, whether express, implied (either in fact or by operation of law), or statutory, with respect to the Services including, without limitation, all warranties that may arise from a course of dealing between the parties, or industry practice. Without limiting the generality of the foregoing, the Company together with its parents, subsidiaries, associated companies, affiliates, officers, representatives, agents, and employees do not represent or warrant that (a) the Services will be secure, timely, uninterrupted or error-free or operate in combination with any other hardware, software, system or data, (b) the Services will meet the Affiliate’s requirements or expectations, (c) any reports provided by the Company pursuant to this Agreement will be accurate or reliable, (d) errors or defects will be corrected, or (e) the Services or the servers that make the Services available are free of viruses or other harmful components. The Services may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. The Company is not responsible for any delays, delivery failures, or other damage resulting from such problems.
- 9.2.The Company shall not be liable to the Affiliate for any indirect, special, incidental, punitive or consequential damages of any kind or nature whatsoever arising from or related to this Agreement, including without limitation, loss of business, lost profits or lost goodwill and whether based on breach of any express or implied warranty, breach of contract, tort (including negligence) or strict liability, regardless of whether the Affiliate has been advised of the possibility of such damage or if such damage could have been reasonably foreseen.
- 9.3.The maximum liability of the Company under this Agreement shall not exceed the Affiliate Commission paid to the Affiliate pursuant to this Agreement within the three (3) months immediately preceding the event giving rise to any such liability.
- 9.4.Nothing in this Agreement shall operate to exclude liability in respect of death or personal injury cause by the negligence or willful intent of the Company.
Affiliate shall indemnify, defend and hold harmless the Company, its parents, subsidiaries, associated companies, affiliates, officers, representatives, agents, and employees against any and all claims, damages, losses, suits, actions, demands, proceedings, liabilities, costs, expenses or legal fees (including but not limited to any penalties, charges or other fees imposed on the Company by any regulatory authority, MasterCard, VISA, Switch or Solo, Carte Bleue or any other card payment scheme that the Company offers) threatened, asserted or filed against the Company, arising out of:
- 10.1violation by Affiliate of any current and future laws, rules and regulations relevant to the parties’ performance under this Agreement;
- 10.2any transactions attributable to any New Registered Users, which are subsequently deemed to be fraudulent or are otherwise in breach of the obligations under this Agreement;
- 10.3any breach of the Affiliate’s representations, warranties or undertakings contained in this Agreement;
- 10.4the Affiliate’s use (or misuse) of the Badoo Content;
- 10.5all conduct and activities occurring attributable in any way directly or indirectly to the Affiliate;
- 10.6any defamatory, libellous, abusive or illegal material contained within the Affiliate Programme or any material otherwise produced by the Affiliate;
- 10.7any claim or contention that the Affiliate in any way infringes any third party’s patent, copyright, trademark, or other intellectual property rights or violates any third party’s rights of privacy; or
- 10.8any claim relating to the Affiliate programme.
- 11.1For the purpose of this clause 11 “Intellectual Property” shall mean all patents, rights to inventions, copyright and related rights, trade marks, trade names and domain names, rights in get-up, rights to goodwill or to sue for passing off, rights in designs, rights in computer software, database 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 (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
- 11.2Affiliate shall in no way use, distribute, transfer, disclose or otherwise deal with any Intellectual Property belonging to the Company save to the extent permitted under this Agreement.
12.Governing Law & Jurisdictions
This Agreement and any non-contractual obligations arising out of or in connection with it will be governed by and construed in accordance with English law and the parties irrevocably submit to the jurisdiction of the English Courts.
The Affiliate may not assign this Agreement without obtaining prior written consent of the Company.
The Company’s failure to enforce the Affiliate’s adherence to all terms contained in this Agreement shall not constitute a waiver of the right of the Company to enforce such terms at any time.
Neither party shall be liable to the other for any delay or failure to perform its obligations under this Agreement if such delay or failure arises from a cause beyond the reasonable control of and is not the fault of such party, including but not limited to labour disputes, strikes, industrial disturbances, acts of God, acts of terrorism, floods, lightning, utility or communications failures or other casualty. If a force majeure event occurs, the non-performing party is excused from whatever performance is prevented by the force majeure event to the extent prevented.
16.Relationship of the Parties
Nothing contained in this Agreement, nor any action taken by any party to this Agreement, shall be deemed to constitute either party (or any of such party’s employees, agents, or representatives) an employee, or legal representative of the other party, nor to create any partnership, joint venture, association, or syndication among or between the parties, nor to confer on either party any express or implied right, power or authority to enter into any Agreement or commitment on behalf of (nor to impose any obligation upon) the other party.
17.Severability / Waiver
Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law but, if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect, such provision will be ineffective only to the extent of such invalidity, or unenforceability, without invalidating the remainder of this Agreement.
The Affiliate shall keep confidential and shall not, without the prior consent in writing of the Company, copy or disclose to any third party the content of any documents or information which the Company designates as confidential or which by nature is obviously confidential (whether of a commercial, financial or technical nature) acquired from the Company in connection with this Agreement or otherwise. Each Party shall copy and use such documents and information solely for the purpose of this Agreement. The obligations under this Clause shall bind the Affiliate for a period of five (5) years from the date of disclosure of such information and they will survive any cancellation or termination of this Agreement.
- 19.1.Any notice or other communication required to be given to a party under or in connection with this contract shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or other next working day delivery service at its registered office, or sent by email to email@example.com.
- 19.2.Any notice or communication shall be deemed to have been received if delivered by hand, on signature of a delivery receipt at the time the notice is left at the proper address, or if sent by email, 12 hours after the email is sent, or if sent by pre-paid first-class post at 9.00 am on the business day after posting.
- 19.3.This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
The Company reserves the right to monitor and review, without further notice the Affiliate’s performance and compliance with the terms of this Agreement. This might include, without limitation, the monitoring, accessing, recording, disclosing, inspecting, reviewing, retrieving and printing of communications, tracking codes, postings, log-ins, recordings and any other information relating to the Affiliate, the Affiliate Programme or otherwise arising in connection with this Agreement.
- i.Affiliate shall not include the term “Badoo” (or any misspellings or variations of the term) in any display URL which is in any way connected to the Affiliate or the Affiliate’s services pursuant this Agreement.
- ii.Affiliate shall not in any way include the term “Badoo” within any title and/or description relating to the Affiliate or the Affiliate’s services pursuant to this Agreement.
- iii.Affiliate shall not direct traffic from any Pay Per Click advertisement relating to the Company to any site other than the Badoo Website, or such other website as Affiliate may be notified in writing by the Company from time to time.
- iv.Affiliate shall not display any mark or sign other than the Company’s trade marks (or any other mark or sign as may be designated in writing by the Company from time to time) when the term “Badoo” or any misspellings or variations of that term are entered as search keywords.
- v.Affiliate shall not display its own advertisements or any advertisements of any third party when misspellings of the term “Badoo” are entered as search keywords.
- vi.Affiliate shall not display its own advertisements or any advertisements of any third party when the term “Badoo” together with another word are entered as search keywords.