1: Interpretation

The following definitions and rules of interpretation apply in this Agreement:

1.1         Definitions:

“Business Cards”
hard-copy cards to be provided by Diome to the Referrer and given to Prospective Customers by the Referrer under clause 5, which shall include a QR Code and Discount Code.

“Business Days”
the business location set out in the CDF.

“Commencement Date”
the date of this Agreement.

“Commission”
he commission payable by Diome to the Referrer under clause 7 and set out in the CDF.

“Confidential Information”
information in whatever form (including without limitation, in means all confidential or proprietary information, including trade secrets (however recorded or preserved) relating to the business of Diome for the time being confidential to Diome that is disclosed or made available, directly or indirectly, by Diome to the Referrer, and including (but not limited to) information that the Referrer creates, develops, receives or obtains in connection with their Engagement, whether or not such information is marked confidential.

“Commission”
he commission payable by Diome to the Referrer under clause 7 and set out in the CDF.

“Customer”
a Prospective Customer who has become a Customer by making a Purchase from Diome.

“Diome”
Diome Limited, a company incorporated in England and Wales whose registered office is at 1st Floor One Suffolk Way, Sevenoaks, Kent, England, TN13 1YL, with company number 13276149.

“Diome Property”
all Samples, Marketing Materials, and any other documentation and tangible or intangible object (on whatever media and wherever located) relating to the business or affairs of Diome.

“Discount Code”
a one-time discount code provided to a Prospective Customer by the Referrer, to be redeemed when the Prospective Customer scans the QR Code and makes a Purchase.

“Engagement”
as defined in clause ‎2.1.

“Exclusivity Period”
such time period of exclusivity to be set out in the CDF.

“Initial Purchase”
the first time the Prospective Customer makes a Purchase of a Product from Diome.

“Intellectual Property Rights”
patents, utility models, rights to inventions, copyright and neighbouring and related rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, Confidential Information and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, 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.

“Marketing Materials”
the marketing materials provided by Diome to the Referrer from time to time, including those set out in the CDF.

“Net Price”
in relation to any Products, the price actually charged to the Customer less any value added or other sales tax thereon included in the price.

“Products”
the products sold by Diome as set out in the CDF and such other products as the parties may agree in writing from time to time.

“Prospective Customer”
a person to whom Diome has not at any time previously provided any of the Products.

“Purchase”
an order for Products made by a Prospective Customer with Diome, at which point they become a Customer.

“QR Code”
a quick-response, machine-readable code.

“Referral”
the Referrer supplying a Business Card to the Prospective Customer and the Prospective Customer then using the Discount Code on the Business Card when making their Initial Purchase (and “Referred” is construed accordingly).

“Referral Period”
6 months (or such other time period as may be set out in the CDF) from the date of the Initial Purchase.

“Samples”
the samples of the Products which are provided by Diome to the Referrer from time to time, including those set out in the CDF.

“Services”
the services provided by the Referrer, including but not limited to promoting the Products and capabilities of the Products to Prospective Customers, displaying the Marketing Materials and Samples at the Business Location (if agreed between the parties) and the provision of the Business Cards to Prospective Customers.

“Subsequent Purchase”
any time the Customer makes a Purchase of a Product from Diome using their Diome account so Diome can trace the transaction back to them (except for their Initial Purchase).

“Trade Marks”
the Diome trade marks in Schedule 1.

Clause and Schedule headings shall not affect the interpretation of this Agreement.

“Validity Period”
12 months from the date the Discount Code is issued by Diome to the Referrer.

1.2          Clause and Schedule headings shall not affect the interpretation of this Agreement.

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

1.4          Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular and a reference to one gender shall include a reference to the other genders.

1.5          A reference to any party shall include that party’s personal representatives, successors and permitted assigns.

1.6          A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time and shall include all subordinate legislation made from time to time..

 

1: Appointment

1.7          Diome appoints the Referrer to provide the Services to Diome under the terms of this Agreement (“Engagement”). Unless set out otherwise in the CDF, Diome appoints the Referrer on a non-exclusive basis.

1.8          If a Territory is specified in the CDF, the Referrer shall not, outside of the Territory, actively market the Products.

 

2: The Referrer’s responsibilities

2.1          During the Engagement, the Referrer shall:

(a) comply with all reasonable and lawful instructions of, and all reasonable policies and procedures provided by, Diome that are applicable to the Services;

(b) not cause harm to Diome’s goodwill or reputation; and

(c) comply with all applicable laws in relation to the supply of the Services.

2.2          The Referrer shall not knowingly supply more than one Discount Code to any Prospective Customer.

2.3          The Referrer shall not:

(a) have any authority to negotiate sales on behalf of Diome or to bind Diome to any contracts and the Referrer shall not hold itself out as having any such authority;

(b) have any authority to incur any expenditure in the name of, or for the account of, Diome without the prior written consent of Diome; or
 
(c) produce any marketing material for the Products or use Diome’s name, logo or trade marks on any marketing material other than the allocated Diome Marketing Materials without the prior written consent of Diome.

 

3: Diome’s obligations

3.1          Diome shall:

(a) co-operate with the Referrer in all matters relating to the Services;

(b) provide to the Referrer in a timely manner all Samples, Marketing Materials, and all other documents, information, data, items and materials reasonably required by the Referrer in connection with the Services at its own cost and ensure that they are accurate and complete in all material respects; and

(c) comply with all applicable laws in relation to the receipt of the Services.

 

4: Samples, marketing materials and property

4.1          The Referrer shall take good care of the Samples and the Marketing Materials, shall insure them to their full replacement value at its own cost, and shall indemnify Diome for any claims, costs, damages, demands, expenses and losses incurred by Diome as a result of the damage, destruction, loss or theft of any Samples and/or Marketing Materials.

4.2          Diome shall at all times remain the owner of all the Samples, Marketing Materials and other Diome Property.

4.3          The Samples, Marketing Materials and other Diome Property shall be retained by the Referrer at the Business Location and shall not be moved to any other location without Diome’s written consent.

4.4          The Referrer shall grant (or shall procure the grant) to Diome access to the premises where the Samples, Marketing Materials and/or other Diome Property are held so Diome can recover them at any time.

 

5: Referral Process

5.1          Diome shall provide the Referrer with the Business Cards, Samples (if applicable) and Marketing Materials (if applicable) at the Business Location.

5.2          Diome shall provide the Referrer with the Discount Codes as set out in the CDF, which the Referrer shall write onto the back of each Business Card in the space provided.

5.3          The Referrer shall offer the Business Cards to as many individuals as reasonably possible with the aim of maximising awareness of the Products.

 

6: Business Protection

6.1          During the term of this Agreement and for 12 months afterwards, the Referrer shall not whether directly or indirectly solicit or entice away from Diome, or employ or engage, or attempt to employ or engage, any person who is employed or engaged as an employee, consultant or subcontractor of Diome.

6.2          The restriction in clause ‎7.1 applies irrespective of whether the Referrer is acting in its own interests or in the interests of a third party.

 

7: Commission and payment

7.1          Provided the Referrer complies with this Agreement, Diome shall pay the Referrer the Commission as set out in the CDF on:

(a)each Initial Purchase made by a Prospective Customer using their Discount Code within the Validity Period; and

(b)each Subsequent Purchase made by that same Prospective Customer within the Referral Period.

7.2          All sums payable under this Agreement are exclusive of any value added tax or other applicable sales tax, which shall be added to the sum in question.

7.3          Unless agreed in advance with Diome in writing, the Referrer shall bear the cost of its own expenses.

7.4          Diome shall, within 5 Business Days after the end of each month, send the Referrer a statement (the “Commission Statement”) setting out:

(a)the total volume and Net Price for the previous month of all Purchases eligible for Commission made during that month; and

(b)Diome’s calculation of the total Commission due to the Referrer in respect of that month.

7.5          Following receipt of the Commission Statement, the Referrer shall invoice Diome for the Commission payable and Diome shall pay all amounts due to the Referrer promptly, no later than 30 days after receipt of the invoice, subject to clause ‎8.6.

7.6          Where the Prospective Customer makes a Purchase that is subject to a cancellation right or cooling off period, Diome shall not be required to pay Commission to the Referrer on the Purchase until the cancellation right of cooling off period has expired.

7.7          If the Referrer disputes any Commission under this Agreement, it shall promptly notify Diome in writing, and the matter shall be referred to Diome’s auditors for settlement and their decision, except in the case of manifest error, shall be final and binding.

7.8          No Commission or other compensation shall be payable where the Referrer has breached any of its obligations under this Agreement and Diome has subsequently served notice of its intention to terminate this Agreement in accordance with clause ‎11.

7.9          The Commission is payable during the term of this Agreement and, provided this Agreement is not terminated by Diome under clause ‎11.2, for one year following the termination of this Agreement as an indemnity payment, which shall be the Referrer’s sole right to payment following the termination of this Agreement.

 

8: Confidential information

8.1          The Referrer shall not either during the Engagement or at any time afterwards, use (except in the proper course of its or their duties) or disclose to any third party any Confidential Information.

8.2          The Referrer shall ensure that its officers, employees, consultants, agents and other representatives with access to Diome’s Confidential Information comply with this clause ‎9.

8.3          At any stage during the Engagement, the Referrer will promptly on request return to Diome all and any Diome Property and Confidential Information in its possession.

 

9: Intellectual Property

9.1          All the Intellectual Property Rights in and to the Products, Marketing Materials, Samples, Trade Marks, Diome Property and Diome’s business and goodwill are and shall at all times be Diome’s property.

9.2          Diome grants the Referrer for the term of this Agreement a non-exclusive, revocable, royalty-free, non-transferable, licence, without the right to grant sublicences, to use the Trade Marks solely for the purpose of promoting the fact it is an authorised Diome referrer, promoting the Products to Prospective Customers, and performing its obligations under this Agreement.

9.3          The Referrer shall comply with all rules for the use of the Trade Marks issued by Diome from time to time (including those set out in any branding manual issued by Diome).

9.4          Diome makes no representation or warranty as to the validity or enforceability of the Trade Marks, nor as to whether they infringe any Intellectual Property Rights of third parties.

 

10: Term and Termination

10.1          This Agreement shall commence on the Commencement Date, and unless terminated earlier in accordance with this clause ‎11, it shall continue for an initial term of one year (“Initial Term”) and shall renew automatically for consecutive 12-month renewal periods (each a “Renewal Term”) until terminated by either party giving the other party at least 1 month’s written notice, such notice to expire at the end of the Initial Term or a Renewal Term.

10.2          Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:

(a) the other party commits a material breach of this Agreement which is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 10 Business Days after being notified in writing to do so;

(b) the other party takes or has taken against it (other than in relation to a solvent restructuring) any step or action towards its 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 its entering a procedure in any jurisdiction with a similar effect to a procedure listed in this clause ‎11.2‎(b); and/or

(c) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.

 

11: Consequence of termination

11.1          This Agreement shall commence on the Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement shall remain in full force and effect including clauses ‎5.4, ‎7, ‎9, ‎12, ‎13, ‎14, and ‎15.

11.2          Termination of this Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination.

11.3          If this Agreement is terminated for any reason the Referrer shall:

(a) immediately deliver to Diome all Samples, Marketing Materials and other Diome Property in its possession or under its control;

(b) promptly return all unused Business Cards and Discount Codes to Diome or destroy them (at Diome’s option); and

(c) immediately cease promoting itself as an authorised referrer of Diome and immediately cease all use of the Trade Marks.

11.4          The termination of this Agreement shall not affect the Referrer’s entitlement to Commission under clause ‎8 where the Customer completes their Initial Purchase before the termination of this Agreement. Where the Customer completes their Initial Purchase after the termination of this Agreement, the Referrer is not entitled to Commission on the Customer’s Initial Purchase or on any of their Subsequent Purchases.

 

12: Status

12.1          Nothing in this Agreement shall render the Referrer an employee, worker, agent or partner of Diome, and the Referrer shall not hold itself out as such.

12.2          This Agreement constitutes a contract for the provision of services and not a contract of employment and accordingly the Referrer shall be fully responsible for and shall indemnify Diome for and in respect of:

(a) any income tax, National Insurance and social security contributions in any jurisdiction and any other liability, deduction, contribution, assessment or claim made in connection with either the performance of the Services or any payment or benefit received by its employees, agents or staff in respect of the Services where such recovery is not prohibited by law. The Referrer shall further indemnify Diome against all reasonable costs, expenses and any penalty, fine or interest incurred or payable by Diome in connection with or in consequence of any such liability, deduction, contribution, assessment or claim; and

(b) any liability arising from any employment-related claim or any claim based on worker status (including reasonable costs and expenses) brought by the Referrer or its employees, agents or staff against Diome arising out of or in connection with the provision of the Services.

 

13: Limitation of Liability

13.1          This clause ‎14 applies whether the loss arises in contract, indemnity, tort (including negligence), misrepresentation, restitution or otherwise.

13.2          Nothing in this Agreement shall limit:

(a) either party’s liability for death or personal injury caused by negligence; fraud or fraudulent misrepresentation; or any other matter that cannot be limited or excluded under applicable law;

(b) Diome’s non-payment of the Commission;

(c) the Referrer’s liability under clauses ‎7, ‎9 and ‎13; or

(d) the Referrer’s liability for misuse of Diome’s Intellectual Property Rights or deliberate breach of this Agreement.

13.3          Subject to clause ‎14.2, neither party shall under any circumstances whatever be liable to the other for any indirect or consequential loss.

13.4          Subject to clauses ‎14.2 and ‎14.3, the total liability of either party to the other in respect of all other loss or damage arising under or in connection with this Agreement, shall not exceed an amount equal to the Commission paid and payable to the Referrer during the 12 month period prior to the event giving rise to the claim.

 

14: Miscellaneous

14.1          Notices. Any notice given to a party under or in connection with this Agreement shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service or email at its registered office (if a company) or its principal place of business (in any other case). Notices shall be deemed received when actually received. This clause does not apply to the service of any proceedings or any documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

14.2          Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

14.3          Waiver. No failure or delay by a party 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.

14.4          Assignment. The Referrer may not assign its obligations under this Agreement to a third party without the prior written consent of Diome.

14.1          Severance If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable.

14.1          Third party rights. This Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999.

14.1          Governing law. This Agreement 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.

14.1          Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have non-exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).