Beanstalk / Advertiser: Programme Terms for Publishers
General
The terms not defined herein have the same meaning as given in AWIN’s Standard Terms for Publishers.
Beanstalk / Advertiser: Programme Terms for the Publishers.
1. Overview
a. This agreement sets out additional terms and conditions applicable to the Publishers participation in the Beanstalk Programme (the “Programme Terms”) offered by Financial Administration Services Limited trading as Beanstalk (“Beanstalk”) for the promotion of Beanstalk’s Products (the “Advertiser Programme”).
b. The Publisher acknowledges that it may participate in the Advertiser Programme only under these Programme Terms and the Standard Terms (the “Terms”), and that subsequent to the Publisher accepting these Programme Terms, Beanstalk will determine whether or not to accept the Publisher onto the Advertiser Programme at our sole discretion. Beanstalk may at any time without assigning any reason cancel or reject Publisher’s participation request / form in its sole discretion.
c. In consideration of the Publisher being a member of the Network agrees to comply with the Program Terms.
d. Beanstalk shall be entitled to remove any Publisher from the Advertiser Programme at its discretion on 1 business days’ notice. The termination or cancellation of any Publisher’s participation in the Advertiser Programme will not relieve that Publisher of any liability arising from any breach of these Terms occurring prior to or after such termination or cancellation. For clarity cancellation of Publisher’s participation in Advertiser Program shall not affect your participation in other programs managed under the Standard Terms, unless you agreement (i.e. Standard Terms) is terminated by AWIN in accordance with the Standard Terms.
e. The Advertiser agrees to comply with all applicable laws, regulations and rules, including, without limitation, the Privacy and Electronic Communications (EC Directive) Regulations 2003 (as amended), Data Regulation (the “Regulations”).
f. Beanstalk may at any time give 7 days’ notice of any modifications, amendments or replacements within the Programme Terms in its sole discretion. Changes will be communicated via the AWIN “News Manager” tool, so Publishers will need to ensure their contact details are up-to-date in the AWIN interface in order to receive these updates. Beanstalk shall not be responsible for non-receipt of such notification by the Publisher and such amended terms will be effective from the date notified by Beanstalk.
2. Traffic Generation
a. Failure to comply with the Programme Terms may result in full or partial reversals of the Commission, or Bonuses (as applicable) and/or removal from the Advertiser Programme.
b. The Publisher is not permitted to use any Advertiser Materials in paid search for any keywords or phrases, or common misspellings, which may be trademarked by Beanstalk including but not limited to Beanstalk, KidStart.
c. The Publisher represents, warrants and undertake that it shall not use Beanstalk’s Brand or any Advertiser Materials to promote any other advertiser product or services or for any other purposes than the Programme.
d. The Publisher shall not use a Lead generation (being in any form of promotion where the Publisher is involved in the process of completing a transaction on the Beanstalk website, whether by providing assistance to the Visitor as the Visitor completes a transaction or by completing a transaction on behalf of a the Visitor.) without written approval from Beanstalk.
e. Email promotion is only allowed with Beanstalk's prior written approval.
3. Content
a. The Publisher shall only use the Advertisers Materials provided through the AWIN Account to promote the Programme. The Affiliate shall not, unless agreed in writing by Beanstalk :
- Modify or edit, copy, transfer, license the Advertiser Materials
- Create additional content on the Advertiser Materials
b. The Publisher shall not
- Promote Advertiser Materials next to any inappropriate content such as unlawful, illegal, unethical, defamatory, gambling, pornography or criminal activity.
- Use the Advertiser Materials and Advertiser URLs for any other purpose than for Advertiser Program, relevant products/campaign (e.g. Beanstalk ISA or other specific Program).
- Place the Advertiser Materials and/or Advertiser URLs on any website not approved for the relevant Advertiser Program.
c. The use of bespoke Publisher Materials requires the approval of the Advertiser and may be subject to additional requirements including, but not limited to, time frames for amending Publisher Materials and accuracy of related content.
d. In the case where additional Publisher Material is approved, any request to remove it by Beanstalk must be actioned within 2 working days to avoid removal from the Advertiser Programme.
4. Validation
a. Commission shall be paid for each valid Sale leading from the Lead that meets the detailed criteria for validation as defined within the Standard Terms.
b. Beanstalk reserves the right to request the source of the Tracking Code which has generated the Sales in the event that it may reasonably appear to be fraudulent or not through the Tracking Code. At this time until evidence of the Tracking Code has been provided such as the URL and evidence of the advertisement or some proof of the Tracking Code driving. Beanstalk has the right to ask AWIN to withhold payment of the Commission and/or Bonuses (as applicable) till such Sale has been appropriately authorised as per the Terms.
c. The Commission and/or Bonuses (as applicable) shall be payable for the first Sale generated through the Lead and the Publisher shall not have any claims for any future sales or subscriptions by the Visitors.
d. The commission structure will be reviewed on a monthly basis. Affiliates are expected to maintain an adult account rate of 20% and above in order to validate the quality of traffic. A bonus will be offered on a case by case basis for affiliates who maintain an adult account rate of 25%+. Beanstalk reserve the right to decline leads from any affiliate driving an adult account rate below 10% in a monthly period. In such an instance, leads will be declined until the conversion rate meets the minimum requirement. Adult account rate = ratio of adults who apply for account
5. Responsibility for Your Site
a. The Publisher is solely responsible for Publisher Services (including it's website, its development, operation, maintenance and all materials that appear on or within it). The Publisher acknowledges and agrees that the Advertiser (i.e. Beanstalk) hereby disclaims all liabilities, claims, damages, actions for any Publisher Services, and the Publisher agrees to defend, indemnify and hold the Advertiser (i.e. Beanstalk) harmless from and against all claims, damages, losses, penalties, fines, costs, expenses (including legal fee) relating to the Publisher Services and/or its participation in the Publisher Advertiser Program.
b. Beanstalk may in its sole discretion monitor, or request that AWIN monitor, Publisher Services (including its website) and shall notify the Publisher of any aspect of the Publisher Services (including website) or mode of use of Advertiser Material that Beanstalk reasonably considers to be unacceptable or out of date. The Publisher agrees to change or remove any such unacceptable aspect, or update any out of date aspect as soon as reasonably practicable and in any event, no later than 1 business days after being notified by Beanstalk.
6. Logo Usage
The Publisher may use the Beanstalk Logo as supplied to them by Beanstalk either directly or via the AWIN’s Interface and the use of the Trademark by the Publisher must be strictly in accordance with the following terms:
a. The use of the Trademark is confined to use on the Publisher’s website which is targeted at UK customers.
b. The Trademark shall be used only for the purpose of driving traffic from the Publisher’s website to Beanstalk’s website (i.e. Advertiser URLs).
c. All use of the Trademark shall be in connection with and relate to transactions and arrangements authorised by Beanstalk and may not be altered in any way from the Trademark supplied by Beanstalk, including in terms of proportion of elements and colour. The Publisher must not distort or otherwise change the appearance of the Trademark. The Trademark can be supplied in varying sizes upon request.
d. All references to the Trademark must be true and fair and not misleading and must be for a valid business purpose.
e. The Publisher should use the following trademark notice within the legal and/or copyright information on its website: ‘“Beanstalk”, “Beanstalk” and the 'Leaf' in Square Symbol are trademarks of KidStart Limited used with its permission’. Alternatively, the Publisher may use the following trademark notice where it intends to also display the trademarks of other providers: ‘Third party trademarks are used with the permission of their respective owners.’
f. The Publisher does not imply that Beanstalk endorses or approves of its services or products.
g. The Publisher does not claim any rights to the Trademark other than the right to use the Trademark strictly in accordance with these terms and the Publisher makes no claim to any goodwill in the Trademark.
h. The Publisher does not have the right to grant or authorise sublicences, assign or otherwise transfer or share the right to use the Trademark.
i. The Publisher shall not consent to the establishment of any link to or from a URL which may bring the Trademark into disrepute or which may damage the goodwill and reputation attached to the Trademark.
j. The Publisher may use the Trademark for the duration of the Program or termination of your agreement with AWIN or five years from [14th November 2022], being the effective date of the Agreement between KidStart LTD (trading as Beanstalk) and Awin Ltd or until the date of termination of the Agreement, whichever is the earliest. The right to use the Trademark may be renewed upon Beanstalk’s written consent before the expiration date expressed herein. Beanstalk may terminate the right to use the Trademark at any time without cause upon giving the Publisher five working days’ prior written notice. When the right of use is terminated, the use and publication of already created Advertiser Materials featuring the Trademark will cease within 30 days and no reproduction of any additional material bearing the Trademark shall be made.
7. Warranties and Indemnities
a. TO THE EXTENT PERMITTED BY LAW BEANSTALK FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ANY BUSINESS OR MINIMUM REVENUE COMMITMENT, AND NON-INFRINGEMENT. BEANSTALK MAKES NO WARRANTIES AS TO THE PERFORMANCE OF THE PROGRAMME OR THE NUMBER OF VISITORS WHO CLICK ON A LINK FROM THE PUBLISHER SERVICES (INCLUDING ITS WEBSITE) TO THE ADVERTISER URL OR ANY COMMISSION AND/OR BONUSES (IF ANY).
b. BEANSTALK 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 DIRECT, INDIRECT OR CONSEQUENTIAL LOSS, COSTS OR EXPENSES, OR 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 LOSS, DAMAGES, CHARGES OR EXPENSES HOWEVER ARISING UNDER THIS AGREEMENT; AND
c. Nothing in these Terms excludes the liability of Beanstalk for death or personal injury caused by Beanstalk's negligence or for fraud or fraudulent misrepresentation.
d. The Publisher will indemnify and hold harmless Beanstalk, its officers, directors, employees and agents from and against any and all liability, claims, losses, damages, injuries or expenses (including reasonable legal fees) directly or indirectly arising from or relating to: any breach by it of these Terms, or any act or omission of the Publisher in relation to the Programme or any authorized use of Advertiser Materials or any other claims related to breach of any of its representations and warranties given in the Program Terms.
8. General
a. The Publisher’s sole remedy for any claims related to or associated with these Program Terms shall be limited to the claims against AWIN including but not limited for its disputes related to payment of Commission and/or Bonuses towards AWIN. The Publisher acknowledges and agrees that it will have no direct or indirect claims against Beanstalk. Accordingly, the Publisher hereby waives all its rights and claims (present or future) against Beanstalk.
b. Nothing in these Terms shall be construed as constituting a partnership, joint venture, retainer-ship, representative, agency or employer and employee relationship between Beanstalk and the Publisher. The Publisher shall not at any time hold itself out having Beanstalk's authority to or purport to bind Beanstalk in any matter.
c. These Terms are not intended by the parties to give rise to any right which is enforceable by any third party by virtue of the Contracts (Rights of Third Parties) Act 1999.
d. The Publisher shall not assign, transfer, charge, create a trust over or otherwise deal in its rights and/or obligations under these Terms (or purport to do so) without Beanstalk’s prior written consent. Beanstalk may at any time by notice assign this agreement and any rights hereunder to any of its group companies.
e. These Program Terms contain the entire agreement and understanding between the parties and supersedes all prior representations, writings, negotiations or understandings relating to the subject matter of these Program Terms.
f. The Publisher shall not sub-contract the performance of any or all of its obligations under these Terms without Beanstalk’s prior written consent.
g. The person accepting these Programme Terms shall be deemed to have been a person authorised to act on behalf of and bind the Publisher.
h. These Advertiser Terms and any dispute or claim arising out of or in connection with these Terms (including any non-contractual dispute or claim) shall be governed by and construed in accordance with English law and the courts in London shall have exclusive jurisdiction to decide such matters.
i. The Publisher acknowledges and agrees that if it breaches obligations hereunder, Beanstalk may suffer immediate and irreparable harm for which monetary damages alone may not be a sufficient remedy, and that in addition to all other remedies that Beanstalk may have, Beanstalk shall be entitled to injunctive relief, specific performance or any other form of relief in a court of competent jurisdiction, including, but not limited to, equitable relief, to remedy a breach or threatened breach hereof by the Publisher and to enforce this Agreement.
