Standard terms and conditions for referral of new clients to The Beans Group
These terms and conditions apply to the Agreement made between THE BEANS GROUP LTD, incorporated and registered in England and Wales with company number 5486885 whose registered office is at 1 Vincent Square, London SW1P 2PN (“TBG”) and the client as stated on the booking form (whether electronically or otherwise) (the “Client”) by or on behalf of TBG and the Client and which forms an integral part of this Agreement
1. DEFINITIONS
In this Agreement, where the context so admits, the following words and expressions shall have the following meanings:
“Agency Client” means a merchant that is an existing paying customer of The Agency
“Annual Technology Licence Fee” means the annual fee as specified in the booking form.
“Applicable Law” means all applicable laws, legislation, statutes and statutory instruments, existing from time to time.
“Business Day” means each day which is not a Saturday or Sunday or a bank or public holiday in England;
“Business Hours”: 9am until 5pm on Business Days;
“Commencement Date” means the date on which the booking form is signed by both TBG and the TBG Client;
“Charges”means the charges for the Services set out in the booking form.
“Confidential Information” means all information (whether written, oral or in some other form) disclosed to or obtained by one party (whether directly or indirectly) from the other (whether before or after the signing of this Agreement), including all information relating to that other party’s or its Group Companies’ business, operations, systems, processes, products, trade secrets, know how, contracts, finances, plans, strategies or current, former or prospective clients, customers, partners or suppliers (together with copies made of any of the foregoing) and which information is marked as being confidential or might reasonably be assumed to be confidential, but excluding information which (a) is available to the public other than because of any breach of this Agreement; (b) is, when it is supplied, already known to whoever it is disclosed to in circumstances in which they are not prevented from disclosing it to others; (c) is independently obtained by whoever it is disclosed to in circumstances in which they are not prevented from disclosing it to others; or (d) Personal Data.
“Data Controller” shall have the meaning of ‘data controller’ set out in section 1(1) of the DPA and, from the time of its implementation into law in England and Wales the meaning set out in Article 4(7) of the GDPR or the equivalent clause of such legislation which may implement the same in the UK ;
“Data Protection Legislation” means, for such time as they are in force in England and Wales, the DPA, the GDPR and all related legislation which may supplement, amend or replace them and which relates to the protection of individual’s rights in their Personal Data and the protection of their privacy;
“Data Subject” an individual who is the subject of Personal Data;
“DPA” means the Data Protection Act 1998;
“GDPR” means Regulation (EU) 2016/679 and/or such legislation as may give effect to its terms in England and Wales;
“Initial Term” means the period specified in the booking form;
“Insolvency Event” means in relation to either party, any of the following events: (a) a meeting of creditors of that party being held or an arrangement or composition with or for the benefit of its creditors (including a voluntary arrangement as defined in the Insolvency Act 1986) being proposed by or in relation to that party; (b) a chargeholder, receiver, administrative receiver or other similar party taking possession of or being appointed over or any distress, execution or other process being levied or enforced (and not being discharged within seven days) on the whole or a material part of the assets of that party; (c) that party ceasing to carry on business or being deemed to be unable to pay its debts within the meaning of section 123 Insolvency Act 1986; (d) that party or its directors or the holder of a qualifying floating charge or any of its creditors giving notice of their intention to appoint, appointing or making an application to the court for the appointment of, an administrator; (e) a petition being advertised or a resolution being passed or an order being made for the administration or the winding-up, bankruptcy or dissolution of that party; and/or (f) the happening in relation to that party of an event analogous to any of the above in any jurisdiction in which it is incorporated or resident or in which it carries on business or has assets;
"Insertion Order" means an order by the Client for Media services as set out in the booking form
“Media Insertion Order Fee” means the fee related to an Insertion Order where Media is selected in the booking form
“Intellectual Property Rights” means patents, patentable rights, copyright, design rights, utility models, trade marks (whether or not any of the above are registered), trade names, rights in domain names, rights in inventions, rights in data, database rights, rights in know-how and confidential information, and all other intellectual and industrial property and similar or analogous rights existing under the laws of any country and all pending applications for and right to apply for or register the same (present, future and contingent, and including all renewals, extensions, revivals and all accrued rights of action);
“Personal Data” has the meaning set out in section 1(1) of the DPA and, from the time of its implementation into law in England and Wales the meaning set out in Article 4(1) of the GDPR, and for the purposes of this Agreement means Personal Data provided by one party to this Agreement to the other;
“Processing and Process” have the meaning set out in section 1(1) of the DPA;
"Publisher Network" means the Student Discount Syndication Platform
“Referral” means and introduction of an Agency Client to TBG that results in the Agency Client becoming a TBG Client
“Referral Commission” means a fee paid to The Agency by TBG for a Referral
“Renewal Term” means any period beyond the Initial Term as stipulated in accordance with the terms of this Agreement;
“Service Commencement Date” means the date stated in the booking form under Service Commencement Date;
“Student Beans mark and logo” means the mark and logo owned or operated by or on behalf of TBG;
“Services” means the following services made available to the Client which are selected on the booking form: (1) Online (2) In-store (3) Media (4) Publisher Network;
“TBG Client” means a merchant that is an existing paying customer of TBG
“TBG Marks” means the brand names, logos and marks of TBG including any referred to in this Agreement;
"Technology" means the digital student verification software tools and all associated methods, tools and software and promotional assets and tools used by TBG, in its sole discretion, to enable the Client to run and promote their own student discount programme via their website, app or stores and verify if Customers are students for the purposes of permitting Customers access to the Client's Student Voucher(s) including, without limitation API, feeds, web interface, FTP, plugin, widget, module, SDK, application, iframe, Connect site, SSO, extension, Smart Overlay, banners, badges, POS assets, marketing materials or such other method as determined by TBG and as may be modified or updated from time to time;
“Term” means the duration of this Agreement including any Renewal Term.
“User Data” has the meaning set out below
“VAT” value added tax chargeable under English law for the time being and any similar, additional tax.
“Virus” means any computer software intended or designed to disable, damage, erase, disrupt or impair the normal operation of, or provide unauthorised access to or modification or monitoring of, any computer system or any software or information stored on any computer system, including viruses, worms, time bombs, time locks, drop-dead devices, access codes, security keys, back doors or trap door devices.
2. COMMENCEMENT DATE AND TERM OF AGREEMENT
This Agreement shall come into force on the Commencement Date and unless terminated earlier in accordance with the provisions set out below or as otherwise permitted as a matter of law shall continue and remain in effect for 12 months.
3. TBG’S RESPONSIBILITIES
TBG shall pay The Agency a Referral Commission for each Agency Client that becomes a TBG Client as a result of a Referral from The Agency.
Subject always to the terms of the contract between TBG and the TBG Client, TBG shall promote all Agency Clients that becomes a TBG Client using The Agency’s affiliate link.
4. REFERRAL COMMISSION AND PAYMENT
TBG shall pay The Agency the Referral Commission within 30 days of full payment of the Annual Technology Licence Fee being received by TBG from the new TBG Client
If The Agency receives payment of the Annual Technology Licence Fee on behalf of TBG then The Agency will deduct and keep the Referral Commission and then pay the remainder of the Gross Annual Technology Licence Fee (+VAT) Revenue to TBG within 30 days of receiving the Annual Technology Licence Fee from the Client. For the avoidance of doubt, this latter obligation shall continue even after the Term of this Agreement or any earlier termination under Clause 10.
Without prejudice to any other right or remedy TBG may have and unless otherwise stated, if The Agency fails to make payment under this Agreement within 30 days of receiving the Annual Technology Licence Fee on behalf of TBG, then TBG shall be entitled to claim interest on the unpaid amount under the Late Payment of Commercial Debts (Interest) Act 1998.
The Referral Commission amount shall start at 15% of the Gross Annual Technology Licence Fee and shall increase based on the total revenue paid to TBG from Agency Clients that becomes a TBG Client as a result of a Referral from The Agency during The Term as set out on the first page of this document.
5. AGENCY’S OBLIGATIONS
Subject to the terms of this Agreement, the Agency is hereby appointed to act on behalf of TBG solely for the purpose of referring potential new clients to TBG and, in particular, to become a TBG Client that uses the Services
The Agency shall at all times act faithfully and diligently in the best interests of TBG
The Agency shall provide TBG with allotted time each quarter to meet with The Agency’s account managers
The Agency shall send an email update to all relevant Agency Clients about TBG Service opportunities.
6. WARRANTIES
TBG warrants and represents to the Agency that it has all rights, licenses, consents and approvals necessary to enter into and to perform its obligations under this Agreement.
The Agency warrants and represents to TBG that it has all rights, licenses, consents and approvals necessary to enter into and to perform its obligations under this Agreement.
7. CONFIDENTIALITY AND PUBLICITY
The Agency acknowledges and agrees that the Services and the terms of this Agreement including, in particular, the Annual Technology Licence Fee and pricing structure, constitute Confidential Information of TBG. TBG acknowledges that the terms of this Agreement, including in particular the Annual Technology Licence Fee and pricing structure, constitute Confidential Information of the Agency.
Subject to clause 7.3, each party shall:
keep confidential all Confidential Information of the other party which it receives in connection with this Agreement;
apply to it no lesser security measures and degree of care than those which it takes in protecting its own Confidential Information and in any event no less than that which a reasonable person or business would take in protecting its own confidential information;
only use such Confidential Information as strictly necessary for the performance of, or exercise of its rights under, this Agreement;
not disclose such Confidential Information to any third party (other than its professional advisers, officers, employees, agents, contractors and subcontractors on a ‘need to know’ basis as strictly required for the purposes of this agreement and subject to each such person being bound by an obligation of confidentiality no less onerous than this clause); and
promptly, upon request and, in any event, upon termination of this Agreement (for whatever reason), return to the other party all materials (in whatever form) incorporating, embodying or recording any such Confidential Information in its possession or control and, if requested by the other party, certify in writing that it has done so.
Either party may disclose the other’s Confidential Information to the extent required by law or by any court, tribunal, regulator or other authority with competent jurisdiction to order its disclosure (but only to the extent of such requirement).
8. INTELLECTUAL PROPERTY AND DATA
Nothing in this Agreement shall cause the ownership of any Intellectual Property Rights belonging to one party to be transferred to the other.
TBG and/or its licensors shall, as between the parties, remain the owner of all Intellectual Property Rights in the TBG Marks, the SBiD Platform and all associated software and data; and all goodwill in the use of the TBG Marks the SBiD Platform shall be owned by TBG.
9. LIMITATION OF LIABILITY
Notwithstanding any provision to the contrary, nothing in this Agreement shall limit or exclude liability for death, personal injury, fraud, fraudulent misrepresentation and any liability which may not be lawfully limited or excluded.
Neither Party shall be liable in any circumstances to the other Party for consequential, special or indirect losses or the following losses whether direct or indirect: loss of profits, loss of revenue, economic loss, loss of business or contracts, loss of anticipated savings or goodwill, loss of data (or any losses arising from a claim by a third party for any of the above losses) whether arising under contract, statute, tort (including, without limitation negligence) or otherwise.
10. TERMINATION
Without prejudice to any other rights or remedies which the parties may have, either party may terminate this Agreement within 30 days upon written notice to the other.
11. VARIATION
No variation of this Agreement shall be valid unless it is in writing and signed by, or on behalf of, each of the parties.
12. ASSIGNMENT
Neither party shall, without the prior written consent of the other party, assign, transfer, charge, mortgage or subcontract this agreement or all or any of its rights or obligations under this Agreement.
13. NO PARTNERSHIP OR AGENCY
Nothing in this Agreement is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
14. RIGHTS OF THIRD PARTIES
No person or body who is not a party to this Agreement has any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any terms of this Agreement (but this does not affect any rights or remedies of a third party which exist or are available apart from that Act).
15. GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by English law. The parties shall endeavour to resolve any dispute arising out of or in connection with this Agreement in good faith failing which such dispute shall be referred to arbitration in London. It is hereby agreed that pursuant to s63(1) of the Arbitration Act 1996, the recoverable costs of any party shall be limited to £1000.
This Agreement has been entered into on the date shown on the first page.