StatusCake Partner Program – Partner Agreement

STATUSCAKE PARTNER AGREEMENT

This partnership agreement, the details you provide us with on signing up to the StatusCake partner program (the “Partner Program”), your entitlement to be paid a Commission, our Marketing Rules and any other policies and guidelines that we may provide you with from time-to-time (together the “Partner Agreement”) contain the entire terms and conditions of your participation in the Partner Program.

Any changes to the Partner Programme will be communicated to you accordance with Clause 2.3 set out below.

IMPORTANT NOTICE

You should read this document carefully, and if you are unclear what any of the provisions means take independent legal advice before accepting and entering into this agreement.

Please print off and retain a copy of this version of the agreement along with all emails received from us when approving your participation in the partner program.

If at any point in time you decide that you do not agree with any of the terms of this agreement, or you become aware that you are no longer able to comply with this agreement, then you should email us immediately at partners@statuscake.com to terminate this agreement.

 1.  Definition & Interpretation

1.1  In this Partner Agreement the following words shall have the meanings as set out in the table below.

“Applicable Laws” means all laws and regulations which are applicable to either party in carrying out any of the activities envisaged under this Partner Agreement throughout the world;
“Banners” means those advertising banners and other Marketing Materials which we may make available to you from time-to-time in the Partner Area, enabling you to direct web-traffic from your website to our the StatusCake Brands, and using your unique tracking ID (each a “Partner ID”), have Customers that you’ve referred be attributable to your marketing activities;
“Brand(s)” means the relevant StatusCake brand used in association with StatusCake’s uptime monitoring product and its associated features and/or StatusCake’s status pages, together with any other brands operated by StatusCake from time-to-time;
“Commission” means your Revenue Share less Commission Deductions;
“Connected Persons” means any individual or entity with whom you have a personal or commercial relationship and includes by way of example only, but is not limited to, an employer, a company to whom you provide consultancy services, a company of which you are a director or other officer, family members or friends;
“Customer”

 

means any person (whether an individual or corporate entity or otherwise) using any of the StatusCake Services whether attached to the Partner’s Partner ID or not;
“Customer Referrals” means users who have been directed to the StatusCake Brands by you, and at the time of signing-up for a StatusCake Paid Plan, are attached to your Partner ID;
“Fraudulent Commission” means any Commission that has been generated as a result of activities which are illegal, or such other actions committed in bad faith (as determined by us in our sole and absolute discretion) or in breach of the StatusCake Terms & Conditions, or this Partner Agreement and includes by way of example only:

(a)    Commission generated through stolen credit or debit cards or by other such fraudulent or prohibited activity;

(b)    manipulation of Partner IDs including but not limited to so called “cookie-stuffing”:

(c)    the unauthorised use of our Intellectual Property Rights;

(d)   any Commission generated by means of activities in breach of our Marketing Rules; and/or

(e)    the offering of financial incentives to sign-up for a StatusCake Paid Plan, for example cash-back promotions.

“Intellectual Property Rights” means rights to all existing and future patents, trademarks (whether registered or unregistered), design rights, service marks, trade dress, trade or business names (including domain names), registered designs, copyright (including rights in computer software), moral rights, database rights, format rights and topography rights (whether or not any of these is or are registered and including applications for registration), know-how, trade secrets and rights of confidence and all rights and forms of protection throughout the world of a similar nature or with similar effect to any of these for the full unexpired period of any such rights and any extensions and/or renewals thereof;
“Lifetime Revenue”

 

means any on-going Revenue Share generated by a Customer Referral for the lifetime of their StatusCake Paid Plan, provided that lifetime will be deemed to have come to an end where that Customer Referral terminates their subscription, has failed to make one or more payments for their StatusCake Paid Plan, has been Refunded and/or issued a Charge Back;
“Marketing Materials”

 

means any Banners, text links, landing pages, newsletters, content and/or other marketing materials (that may include the StatusCake Marks that are provided to you us and/or as otherwise created by you and pre-approved by us;
“Marketing Rules” means the Marketing Rules as linked to in the Partner Area;
“Partner Area” means the area of the Partner Program website, currently located at StatusCake.com/Partners and which is accessible to you via your Partner Program login with the sign-in credentials provided to you upon being accepted into the Partner Program, and which includes by way of example, tools for use by Partners such as the ability to check traffic statistics, select marketing materials (including Banners), tracking links and so on;
“Revenue Share” means a thirty per cent (30%) share of net revenue we receive from our payment processor for payments generated by your Customer Referrals;
“StatusCake” means the company TrafficCake Limited, a company registered in England and Wales with company number (08250233) and trades as StatusCake.com;
“StatusCake Marks”

 

means “StatusCake” “StatusCake Pages” and/or any logo, trade mark (whether registered or unregistered), domain name or other trade name that contains, is confusingly similar to or is comprised of Our Marks or any other name or mark owned from time-to-time by StatusCake; and
“StatusCake Paid Plan” means any Customer signing up for one or more of the following off-the-peg StatusCake subscriptions: (a) StatusCake Superior; (b) StatusCake Business; (c) StatusCake Pages Bronze; (d) StatusCake Pages Silver; and/or (e) StatusCake Pages Gold; whether on a monthly or yearly basis;
“StatusCake Websites” means those websites owned and/or controlled by TrafficCake Limited t/a StatusCake.com and located at the URLs  https://www.statuscake.com and https://pages.statuscake.com/landing_page/ and at any URL with which StatusCake replaces such URLs from time-to-time and each of their related pages.

1.2  Any clause or section headings are for convenience only and do not affect the interpretation of this Partner Agreement.

1.3  Any phrase using the terms “including”, or “include” or any similar expression is to be construed as illustrative only and shall not limit the sense of the words preceding those terms.

2.  Signing-Up to the Program

2.1  You warrant and represent that the information you provide us with on applying to the Partner Program are accurate in all respects, and that if accepted to the Partner Program, that such information will continue to be accurate throughout your participation in the Partner Program (“Application Information”).

2.2  You agree, from acceptance into the Partner Program, to be bound by all the terms and conditions of this Partner Agreement as may be amended from time-to-time.

2.3  We may modify the terms and conditions of this Partner Program (each an “Agreement Amendment”) at any time in our absolute discretion either by: (a) emailing you with a notice setting out those changes which have been made to the StatusCake Partner Agreement; or (b) by posting the updated Partner Agreement in the Partner Area (a “Change Notice”).

2.4  Save where any Agreement Amendment is related to preventing fraud, or where there is a mistake in the StatusCake Partner Agreement, any Agreement Amendment will be effective fourteen (14) days from the Change Notice (the “Notification Period”).

2.5  In the event that any Agreement Amendment is not acceptable to you then your only recourse is to terminate this StatusCake Partner Agreement. By continuing to participate in the Partner Program beyond the Notification Period you will be deemed to have accepted the Agreement Amendment.

3.  Approvals Process

3.1  When deciding whether to approve your participation in the Partner Program we will consider, by way of example only, which of our Brands you wish to promote, those countries in which you will promote our Brands, your experience of affiliate and partnership marketing, the websites or other means by which you will carry out marketing activities, and/or such other information that we may request from time-to-time (“Partner Marketing Background”).

3.2  We will review the Application Information and Partner Marketing Background and thereafter determine in our sole and absolute discretion whether or not to approve you for participation in the Partner Program (“Partner Approval”).

4.  Your Marketing of the StatusCake Brands

4.1  You agree and accept, that subject to the terms and conditions of this Partner Agreement, you will market and refer potential Customers to the StatusCake Brands.

4.2  You are solely liable for all of your marketing and promotional activities, and all content and the manner in which you refer potential Customers, must be carried out professionally and in adherence with all Applicable Laws.

4.3  Notwithstanding the generality of clause 4.2 above, your agree and accept that you will not, nor will encourage or assist any third party to market or promote the StatusCake Brands: (a) on any website or other channel which is, or may be considered to be, libellous, breach the intellectual property rights of StatusCake or any third party, is obscene or unlawful, or in our sole and absolute discretion otherwise unsuitable; (b) in a manner which infringes the intellectual property rights of any third party, or otherwise disparages or damages the goodwill of such other third party; (c) on any website or in any marketing channels not already approved as part of the Partner Approval process; (d) by using pay-per-click and/or search engine optimisation in order to target the StatusCake Brands and/or StatusCake Marks or keywords associated with or similar to the StatusCake Brands and/or StatusCake Marks; (e) in a manner which results in your competing with StatusCake in relation to the promotion of any of the StatusCake Brands; or (f) in a manner that could confuse the end user as to your relationship with StatusCake, including by way of example only, promoting our Brands on a website or with content that in any way resembles the look and feel of the StatusCake Brand.

4.4  In the event that we determine in our sole and absolute discretion that you are in breach of this Clause 4 then without prejudice to any other rights or remedies available to us, we reserve the right to terminate this Partner Agreement immediately upon notice and/or withhold any Commission that may otherwise have been due to you.

4.5  You agree and accept, that unless otherwise agreed in writing, you will only use the Banner to carry out your marketing and promotional activities. You further agree that you will not modify the Banner in any way.

4.6  You may request from time-to-time additional marketing materials from us, by way of example only, banners or landing pages that have been customised specifically for you (“Customised Banner”). Where we have created Customised Banners such costs, and notified in advance, will be deducted from your Commission.

4.7  For the duration of this Partner Agreement we grant you a non-exclusive and non-transferable right to use the Banners, any Customised Banner, or other marketing materials provided to you from time-to-time only to the extent necessary for the purpose of meeting your obligations under this Partner Agreement.

4.8  You acknowledge and accept that your Partner IDs are for your sole use and that you do not have the right to assign or sub-licence your Partner IDs to any third party.

 5.  The StatusCake Brands & StatusCake Marks

5.1  You acknowledge and accept that we own all the Intellectual Property Rights comprising in any marketing materials, Banners, the StatusCake Brands, the StatusCake Service, and the StatusCake Marks.

5.2  Any use of any of our trade marks (whether registered or unregistered), or the use of any domain name or trade name which may contain or is similar to (whether or not this may cause confusion to the end user), the StatusCake Marks (“Prohibited Brand Use”) is not permitted under this Partner Agreement and may constitute Fraudulent Commission.

5.3  You agree and accept that where you are in breach of this Partner Agreement and by virtue of Prohibited Brand Use, that any such use inures to our sole benefit, and that you do not by virtue of your Prohibited Brand Use, obtain any right in our StatusCake Marks.

5.4  You agree and accept that you will not register, nor attempt to register, any trademark, any domain name, or any trade name, which contains, or is similar to our StatusCake Marks (“Wrongful Registration”).

5.5  Where you have made a Wrongful Registration you hereby agree to immediately upon our request, transfer any domain name or trade mark application, or such other registration to us.

5.6  You agree and accept that you will not challenge or attack our ownership of the StatusCake Marks, or any such other registration that we may make from time-to-time.

 6.  Commission & Payments

6.1  We will track your marketing activities within the Partner Area for the purposes of calculating your Commission. The reporting contained within the Partner Area may change from time-to-time in our sole and absolute discretion.

6.2  Without prejudice to the generality of Clause 6.1 above, within the Partner Area you will be provided with details of the number of new Customers that you have referred to us in each calendar month for each of your Partner IDs. You will also be provided with details of the amount of Commission which is due to you.

6.3  You will be entitled to be paid a Revenue Share of commission generated from the Lifetime Revenue generated by each Customer Referral.

6.4  Commission will be paid to you on a calendar month basis and will be paid within thirty (30) days of the end of each calendar month.

6.5  We will deduct from your Revenue Share the following: (a) agreed costs for Customised Banners; (b) any overpayment wrongly made to you; (c) Tax Adjustments; (d) refunds made to your Customer Referrals (“Refunded”); and/or (e) any charge back raised by a Customer Referral through their bank, debit or credit card provider, or other payment processor (a “Charge Back” (collectively “Commission Deductions”)

6.6  Commission Deductions shall be applied to your account in the month that they arise. Where the amount of Commission Deductions is greater than Commission accruing to you in that same calendar month (“Negative Commission”) then such Negative Commission shall carry over into subsequent calendar months until such time as the Minimum Pay-Out requirements as set out below have been met.

6.7  No Commission will be paid if the amount due to you is less than one hundred United States Dollars (US $100) (the “Minimum Pay-Out”).

6.8  You will not be paid Commission for Customers who you refer into the Partner Program and who are Connected Persons.

6.9  Where the amount of Commission owed is less than the Minimum Pay-Out, then the amount of Commission accrued in that month will carry over to the following month until such time as the Minimum Pay-Out threshold has been reached.

6.10  You are responsible for any and all taxes due on Commission received by you from us.

6.11  In the event that we believe that there is Fraud Commission we reserve the right in our sole and absolute discretion to withhold the payment of Commission for up to one-hundred-and-eighty (180) days whilst we investigated.

6.12  We will not be obliged to pay Commission where we determine it is Fraudulent Commission and reserve the right to forfeit your Commission in full, to recalculate your Commission, and/or to terminate this Partner Agreement.

6.13  All payments of Commission made to you will be made and payable in USD, GBP, EUR or such other currency as we may agree to pay-out in from time-to-time.

6.14  Payment of Commission will be made by bank transfer or any other payment method which we may in our sole and absolute discretion decide.

6.15  We deduct a charge of five per cent (5%) of Revenue share which includes any and all payments incurred by us in the processing of payments, both those fees charged by our payment processors, along with fees or charges for bank transfer (or other payment method) and any currency conversion fees or charges when paying out Commission to you.

6.16  You agree and accept that you will only be entitled to Commission for Customers who have signed-up to a StatusCake brand using your Partner ID. Under no circumstances will be liable for Commission where you have failed to use a Partner ID or such Partner ID has been set-up incorrectly by you.

6.17  If you don’t agree with the amount of Commission that is due to you then your sole remedy is to refuse payment by sending us written notice within fourteen (14) days of the end of the applicable calendar month in which the disputed Commission has occurred setting out why your believe the Commission is incorrect (“Commission Dispute”). In the event that you don’t notify us of the Commission Dispute and/or accept payment of the disputed Commission then you will be deemed to have waived your claim of any dispute.

6.18  Notwithstanding your overriding requirement to comply with all Applicable Laws you will apply with all laws, regulations and/or policies we may issues from time-to-time in relation to money laundering, tax evasion, and/or proceeds of crime.

6.19  You agree and accept that it is your responsibility for the administration and payment of all taxes in relation to your own personal participation in the Partner Program, whether this be income tax, sales tax, and/or turnover tax in the country where you reside and/or the countries into which you carry out marketing activities under the Partner Program.

6.20  You agree and accept that any payments of Commission you receive shall be deemed to include all sales tax, and/or turnover tax.

6.21  In the event that a competent tax or regulatory authority deems that any tax, levy and/or other fee or charge should had been applied to your Commission, then we will have the right to apply any such tax retrospectively as a deduction on Commissions (“Tax Adjustments”).

7.  Term & Termination

7.1  This Partner Agreement will commence upon you accepting these terms and conditions when you sign-up to the Partner Program by completion of the Application Information.

7.2  The Partner Agreement will continue until terminated in accordance with the terms of this Partner Agreement.

7.3  You may terminate this Partner Agreement immediately upon written notice to us by sending an email to partners@statuscake.com with the subject of the email marked “Partner Termination”. You will not be entitled to any Commission accruing after the date of termination.

7.4  We may terminate this Partner Agreement immediately upon written notice to you. In the event that we termination this Partner Agreement for your breach we shall be entitled to terminate your Partner IDs and you will no longer be entitled to receive any Commission, including any Commissions having accrued to you up to the point of termination.

7.5  Where we are entitled to suspend this Partner Agreement we may determine instead, in our sole and absolute discretion and without prejudice to any other rights or remedies that we may have, to suspend this Partner Agreement or any particular Partner IDs used by you. During any such suspension we may withhold payment of any Commission.

7.6  In the event that you have no referred any Customers to us in the previous one-hundred-and-eighty (180) days we reserve the right to termination your Partner Agreement. Where we terminate your Partner Agreement for inactivity any Commissions in your account and not claimed will be forfeited.

7.7  Upon termination of this Partner Agreement you will immediately cease all marketing activities in relation to the StatusCake Brands. Provided that we have paid, or do pay you and Commissions due at the date of termination, then subject to any other rights that we may have to make Commission Deductions, we will have no further liability to make payment of any further sums to you.

8.  Warranties & Indemnities

8.1  We make no warranties or representation (whether express or implied by law or otherwise) in relation to the Partner Program and/or your suitability to participate in the Partner Program, the StatusCake Brands, the StatusCake Service, any content, materials or other services which we may make available, nor that any of the same will be error-free, nor do we make any warranties or representation as to the particular purpose, quality, or fitness of the same.

8.2  Except as otherwise states all warranties, representations and implied terms and conditions are hereby excluded from this Partner Agreement.

8.3  Liability: (a) for death or personal injury caused by negligence; (b) for fraudulent misrepresentation or for any other fraudulent act or omission; or (c) for any other liability which may not lawfully be excluded or limited; is not excluded or limited by this Partner Agreement, even if any other term of this Partner Agreement would otherwise suggest that this might be the case.

8.4  We will not be liable (whether from breach of contract, tort (including negligence), breach of statutory duty or otherwise) for any: (a) loss of profit; (b) loss of sales, turnover, revenue or business; (c) loss of customers, contracts or opportunity; (d) loss of or damage to reputation or goodwill; (e) loss of anticipated savings; (f) loss of any software or data; (g) loss of use of hardware, software or data; (h) loss or waste of management or other staff time; or (i) indirect, consequential or special loss; arising out of or relating to this Partner Agreement.

8.5  Our total liability arising out of or relating to this Partner Agreement or its subject matter and to anything which it has done or not done in connection with the same (whether from breach of contract, tort (including negligence), breach of statutory duty or otherwise) shall be limited, in aggregate for all claims arising during the term of this Agreement, up to a maximum liability the amount paid by us to you as Commission in the preceding twelve (12) months.

8.6  You will defend, indemnify and hold StatusCake and its officers, directors, employees and representatives harmless on demand from and against any and all claims, demands, liabilities, losses, damages, costs and expenses (including reasonable legal fees) resulting or arising (directly or indirectly) from your breach of this Partner Agreement.

8.7  Without prejudice to any other rights or remedies available to StatusCake under this Partner Agreement or otherwise, StatusCake shall be entitled to set off any payments otherwise payable by StatusCake to the Partner, against any liability of the Partner to StatusCake, including any claims StatusCake may have against the Partner resulting from or arising from the Partner’s breach of this Agreement.

9.  Miscellaneous Provisions

9.1  You providing marketing services to us under this Partner Agreement as an independent contractor. There is no relationship of exclusivity, partnership, joint venture, employment, agency or franchise between you or us under this Partner Agreement.

9.2  Neither party has the authority to bind the other (including the making of any representation or warranty, the assumption of any obligation or liability and/or the exercise of any right or power), except as expressly provided in this Partner Agreement.

9.3  You agree and accept that we may at any time (directly or indirectly), enter into marketing terms with other Partners on the same or different terms as those provided to the Partner under this Partnership Agreement and that any such other Partners may be similar to, or competitors to you.

9.4  Neither Party will be liable to the other for any breach of this Partnership Agreement (other than a failure to pay charges) which arises because of any circumstances which the defaulting party cannot reasonably be expected to control (which shall include interruption or failure of the Internet or of any network, telecommunications, power supply or infrastructure, or any provider of any of the foregoing but, for the avoidance of doubt, shall not include shortage or lack of available funds), provided that the defaulting party: (a) notifies the other in writing as soon as reasonably practicable about the nature and extent of the circumstances and likely breach; (b) uses reasonable efforts to mitigate the effects of the circumstances and breach so as to minimise or avoid the breach; (c) uses reasonable efforts to resume performance as soon as reasonably practicable; and (d) could not have avoided the breach by taking steps that it ought reasonably to have taken in light of the matters known to it before the circumstances arose.

9.5  You are not allowed to sub-license or assign, sub-contract or delegate any or all of its rights or obligations under this Partner Agreement without our prior written consent.

9.6  All notes and consents relating to this Partner Agreement (but excluding any proceedings or other documents in any legal action) must be in writing and can be provided by email.

9.7  Unless the parties expressly agree otherwise in writing, if a party: (a) fails to exercise or delays exercising or only exercises partially any right or remedy provided under this Partner Agreement or by law; or (b) agrees not to exercise or to delay exercising any right or remedy provided under this Partner Agreement or by law; then that party shall not be deemed to have waived and shall not be precluded or restricted from further exercising that or any other right or remedy.

9.8  If any provision of this Partner Agreement is held for any reason to be ineffective or unenforceable, this shall not affect the validity or enforceability of any other provision of this Partner Agreement or this Partner Agreement as a whole. If any provision of this Partner Agreement is so found to be ineffective or unenforceable but would be effective or enforceable if some part of the provision were deleted, the provision in question shall apply with such modification(s) as may be necessary to make it effective and enforceable.

9.9  All variations to this Partner Agreement must be agreed, set out in writing and signed on behalf of both parties before they take effect.

9.10  A person who is not a party to this Partner Agreement shall not have any rights under or in connection with it, whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise. No third party’s consent shall be required to rescind or vary this Agreement.

9.1 1  This Partner Agreement is governed by English law. Both Parties submit to the exclusive jurisdiction of the English courts in relation to any dispute arising out of or in connection with this Partner Agreement or its subject matter, but we are also entitled to apply to any court worldwide for injunctive or other remedies in order to protect or enforce our Intellectual Property Rights.

StatusCake Partner Agreement: 7th May 2019

Version: 1.0