Mirago Partner Scheme - Terms and Conditions

Acceptance of this agreement

By accessing your partner account, you agree to the terms below. If you do not agree, please suspend your site feeds and speak to your Mirago representative.

BETWEEN:

(1) Mirago Plc a company registered under the Companies Acts (registered number 3890324) and having its registered office at Equinox House, Oriel Court, Alton, Hampshire, GU34 2YT (“Mirago”);

(2) (“Partner”) the individual logging into their account or organisation the individual is representing;

WHEREAS:

(A) Mirago is a company that offers searchable Internet indexes and Media Services.

(B) The Partner is also a provider of Internet indexes and/or Media Services.

(C) The Partner wishes to become a Mirago Partner whereby Mirago will provide its search and Context Stream results to Partner in exchange for the Partner Commission (as hereinafter defined) and Mirago agrees to appoint Partner as a Mirago Partner upon the terms set out herein.
 

NOW THE PARTIES TO THIS AGREEMENT AGREE AS FOLLOWS:

1. Definitions and Interpretation

1.1 In this Agreement, the following terms and expressions shall, unless the context requires otherwise, have the meanings set out opposite them:

“Agreement” means this agreement comprising the terms and conditions set out herein together with the Schedule.

“Bona Fide Internet User” means a real living individual person conducting legitimate internet searches or browsing the internet, which to avoid doubt shall exclude without limitation robots, spiders, hitbots, scripts, software, hidden links, scraper and other mechanical, artificial or fraudulent mechanisms and persons paid to click.

“Commencement Date” means the date upon which the Agreement commences as specified at the head of the Agreement (to avoid doubt, if no date is specified, the Commencement Date shall be the last date of signing of the Agreement).

"Media Listing" means links, code and advertising relating to websites selected by Mirago from time to time for the purposes of promotion under its Featured Site and Trusted Feed and/or Context Stream Service;

“Intellectual Property Rights” means all patents, registered designs, unregistered design rights, copyrights, database rights, topography rights, trade marks, trade names, logos, trade secrets and know-how, supplementary protection certificates, petty patents, utility models, applications for any of the above and the right to make applications and any and all other intellectual or industrial property rights of any description (and rights of a similar nature) anywhere in the world existing now or at any time in the future and whether registered or registrable or not.

“Mirago Partner” means a party who has entered an agreement with Mirago to provide end-users with access to Mirago Web Results and PPC and/or Context Stream Listings from its website.

“Mirago Web Results” means the results from a user searching a Mirago website or another Mirago Partner website that are not displayed as a result of advertising, but are displayed from Mirago’s index of the content of pages on websites prepared by Mirago’s robots.

“Partner Commission” means the amount of the commission earned by the Partner calculated by applying the Partner Commission Percentage to the net revenue Mirago earns (excluding VAT) after the deduction of any commissions from a specific Revenue Click Through.

“Partner Commission Percentage” means the Partner’s commission as agreed between Mirago and the Partner.

“Revenue Click Through” denotes a Bona Fide Internet User actively clicking on a Media Listing on the Partner website (excluding any click through from an IP address considered by Mirago to be of unacceptably poor quality or of a fraudulent nature ).

“Schedule” means the schedule annexed as relative hereto.

1.2 Unless the context requires otherwise references in this Agreement to a Party or Parties are references to a party or parties to this Agreement; reference to a clause or clauses are reference to a clause or clauses of this Agreement; references to the Schedule are to the schedule to this Agreement; references to the singular shall include the plural and vice versa; and reference to one gender shall include all other genders. Headings in this Agreement are for convenience only and do not affect interpretation.

1.3 References in this Agreement to a Mirago website(s) shall be to a website(s) owned by and maintained by or on behalf of Mirago.

1.4 References in this Agreement to a Partner website(s) shall be to a website(s) owned by and maintained by or on behalf of a Mirago Partner.

2. Appointment

By entering into this Agreement, Mirago appoints the Partner as a Mirago Partner on a non-exclusive basis and Partner agrees that it shall perform and carry out the obligations of a Mirago Partner on the terms set out in this Agreement.

3. Partner Obligations

3.1 In consideration for payment of the Partner Commission by Mirago, the Partner agrees, for the duration of this Agreement

3.1.1 to display Mirago Web Results and/or Media Listings on the pages of the Partner’s website in the format prescribed by Mirago; and

3.1.2 to use its reasonable endeavours to introduce Bona Fide Internet Users to Mirago's websites and to take all reasonable measures to ensure that internet users who are not Bona Fide Internet Users are not introduced to Mirago's websites. Mirago's determination as to whether an internet user is a Bona Fide Internet User shall be final.

3.2 The Partner agrees to give Mirago all reasonable assistance to enable Mirago to facilitate the display of the Mirago Web Results and the Media Listings on the pages of the Partner’s website.

4. Mirago Obligations

Subject to the Partner complying with its obligations under clause 3 Mirago shall:

4.1 supply the Partner with the necessary links and/or code for inclusion on the Partner’s website to allow the display of Mirago Web Results and/or Media Listings.

4.2 give the Partner reasonable assistance to facilitate the display of the Mirago Web Results and the Media Listings on the pages of the Partner website.

5. Price and Payment

5.1 Provided that the Partner has complied with its obligations under this Agreement, Mirago shall pay the Partner Commission to the Partner as agreed separately between Mirago and the Partner.

5.2 Mirago shall provide the Partner with a user name and login to online user traffic reports ("Traffic Report") on a 24 hours/7 days a week basis during the term of this Agreement, which reports shall include a breakdown of Revenue Click Throughs. Within 30 days following the end of the relevant month, the Partner shall issue an invoice to Mirago showing Partner Commission payable. Mirago shall make payment of Partner Commission payable to the Partner within 30 days of receipt by Mirago of a valid and accurate invoice from the Partner..

5.3 Mirago's determination of the number of Revenue Click Throughs during any period shall be final except in the event of manifest error.

5.4 Where Mirago becomes aware that it has paid Partner Commission in respect of internet user traffic which is not from Bona Fide Internet Users it shall be entitled to deduct the relevant amount of such Partner Commission from the next payment of Partner Commission due.

6. Intellectual Property Rights

6.1 During the term of this Agreement and subject to the terms set out herein, each party hereby grants to the other a non-exclusive, non-transferable licence to use, display and reproduce its logo, trademarks and service marks on its websites and promotional materials solely for the purposes of the display of the Mirago Web Results and the Media Listings by the Partner on its website as set out in this Agreement, and for promoting and advertising the Partner as a Mirago Partner.

6.2 The Partner acknowledges and agrees that, as between Mirago and the Partner, Mirago shall retain ownership of all Intellectual Property Rights and other right, title and interest to and in all the content and materials of the Mirago Web Results and the Media Listings and its websites directories, database, algorithms, indexing and related technology.

6.3 The Partner agrees that it will not take any action that would undermine, conflict with, or be contrary to the Intellectual Property Rights and interest of Mirago or other Mirago Partners or Mirago’s other commercial partners and resellers, including, without limitation: (i) it will not make any use of, or attempt to register, any logo, trademark, service mark or trade name substantially similar to any logo, trademark, service mark or trade name of Mirago or other Mirago Partners or Mirago’s other commercial partners and resellers; and (ii) it will not sell, resell, rent, licence, sub-licence, transfer, assign or redistribute the Mirago Web Results or the Media Listings except as expressly permitted in this Agreement. The Partner shall immediately inform Mirago of any action taken by any third party (so far as the Partner is aware) that would undermine, conflict with, or be contrary to the Intellectual Property Rights and interest of Mirago or other Mirago Partners or Mirago’s other commercial partners and resellers, and assist Mirago as reasonably required in taking action against the third party concerned (including without limitation being joined in any legal action deemed necessary by Mirago to protect its rights or those of other Mirago Partners or Mirago’s other commercial partners and resellers).

7. Publicity and Marketing

Both parties will mutually approve any announcements or promotional material and the timing of distribution thereof in connection with this Agreement or the marketing of the related service. To avoid doubt, nothing in this clause 7 shall require Mirago to obtain any approval from the Partner of Mirago’s publicity and marketing activities relating to other Mirago Partners or Mirago’s other commercial partners and resellers.

8. Partner Warranties

The Partner hereby represents, warrants and undertakes to Mirago as follows:

8.1 it has, and will retain through the term of the Agreement, all right, title and authority to enter into this Agreement, to grant to Mirago the rights and licences granted in this Agreement and to perform all of its obligations under this Agreement.

8.2 it has complied and will comply with all relevant statutory provisions in relation to its obligations hereunder including, without limitation, any and all applicable data protection legislation and regulations and that it has obtained and will obtain any and all necessary rights, approvals and consents (including without limitation any necessary consents from individuals in relation to the processing of their personal data) to allow it to perform its obligations hereunder.

9. Mirago Warranty

Mirago hereby warrants that it has and will retain throughout the term of this Agreement all right title and authority to enter into this Agreement, to grant to the Partner the rights and licences granted in this Agreement and to perform all its obligations under this Agreement.

10. Indemnity

The Partner shall indemnify, hold harmless and defend at its own expense, Mirago from and against any liability, claim, action proceeding or expense arising out of or in connection with: (i) any breach of the Partner Warranties or otherwise in respect of any content or other aspect of the Partner’s websites, other that the advertisements presented by Mirago, (including but not limited to website content, Intellectual Property Rights associated with such content and violations of laws relating to obscenities and privacy); and (ii) any other material breach of or failure to perform its duties or obligations under the terms of this Agreement.

11. Exclusion and limitation

11.1 The Partner hereby confirms that it is not entering into this Agreement in reliance on any warranty or representation given by Mirago, except as expressly set out herein.

11.2 The Partner acknowledges that Mirago makes no warranties of any kind for interruption in service for the Mirago websites and Mirago search facilities for the Mirago Web Results or the Media Listings and except as expressly set out in this Agreement, all warranties representations, and conditions express or implied, statutory or otherwise are hereby expressly excluded by Mirago to the fullest extent permitted by law.

11.3 Nothing in clause 11.2 shall exclude liability for fraudulent misrepresentation.

12. Economic Loss

Mirago shall not in any event be liable to the Partner or any third party, whether in contract, tort or otherwise, and irrespective of cause for:

12.1 any loss of profit, business, goodwill, contracts, revenues or anticipated savings suffered by the Partner or the Partner Advertisers; or

12.2 any special, indirect or consequential loss of any nature whatsoever suffered by the Partner or a third party whether resulting from the use of Mirago services under or pursuant to this Agreement including non-delivery, interruption in service, or failure of the internet infrastructure that the Mirago service relies upon, however that interruption or failure is caused, or in respect of any other liability arising on the part of Mirago to the Partner and/or any third party.

13. Limitation of Liability

The maximum amount of Mirago’s liability to the Partner under this Agreement shall not in any event exceed the amount of the Partner Commission earned by the Partner during the previous period of twelve months.

14. Term and Termination

14.1 The term of this Agreement shall be determined in accordance with those separately agreed between Mirago and the Partner.

14.2 Without prejudice to any rights, obligations and liabilities outstanding at the date of termination of this Agreement, upon such termination the rights and licences granted under this Agreement shall be deemed to have been terminated and the parties shall take all reasonable measures to ensure that the content and the materials of the other party are removed from their own content and materials and shall respond promptly to any reasonable requests from the other in this regard.

14.3 Whilst termination of this Agreement will not affect accrued rights and liabilities of either party, neither party shall have any additional right to compensation as a result of termination of this Agreement.

14.4 Mirago may terminate this Agreement with immediate effect by notice in writing to the Partner if it considers that: (i) the Partner is in breach of any warranties by the Partner under this Agreement or (ii) in the event that the Partner introduces internet users who are not Bona Fide Internet Users in breach of its obligations under clause 3.1.2 of this Agreement or (iii) in the event of any other breach of this Agreement which breach has been notified by Mirago to the Partner and has not been remedied within 14 days of such notification or (iii) in Mirago’s sole discretion it believes the Partner is fraudulently using means to generate Revenue Click Throughs with the intent of inflating Partner Commission.

14.5 Either party shall have the right to terminate this Agreement by notice in writing to the other with immediate effect in the event that the other becomes insolvent or bankrupt or makes an arrangement with creditors or in the case of a company goes into liquidation other than for the purpose of reconstruction or amalgamation.

14.6 Without prejudice to any other rights and remedies that Mirago may have for breach of this Agreement by the Partner, Mirago shall have the right, without notice or liability to the Partner or any third party, to withhold the Mirago Web Results and Media Listings until such time as the breach is remedied.

15. General

15.1 Neither this Agreement nor any right or interest hereunder shall be assignable by either party without the other party’s prior written consent (not to be unreasonably withheld or delayed).

15.2 The waiver or failure of either party to exercise any right provided for in this Agreement shall not be deemed a waiver of that or any other right in this Agreement.

15.3 The Agreement shall be binding upon, and inure to the benefit of the parties and their permitted successors and assignees.

15.4 This Agreement may not be amended, except by an instrument in writing signed by the parties hereto.

15.5 Notices sent pursuant to this Agreement shall be in writing and delivered by hand or sent by post or faxed with hard copy confirmation by post to the recipient at its address shown on this Agreement or in the case of a company to its registered office. Notices delivered by hand or faxed shall be deemed received on the day of delivery and those posted shall be deemed received on the second working day thereafter.

15.6 This Agreement shall be governed by and construed in accordance with English Law and the parties submit to the exclusive jurisdiction of the English courts.

15.7 This Agreement sets out the entire agreement between the parties in relation to the subject matter hereof and the parties acknowledge that in entering into this agreement they have not relied upon any representations other than those reduced to writing in this Agreement. The provisions of this clause shall not apply in the case of any fraudulent misrepresentation.

15.8 Neither party shall be liable for any breach of this Agreement due to any case beyond its reasonable control (save in respect of any obligation for the payment of monies) including but not limited to Acts of God,, inclement weather, flood lightening or fire, industrial action, act or omission of government, or other competent authority, riot, war or act or omission of any other party for whom that party is not responsible.

15.9 Any term or provision of this Agreement held to be illegal or unenforceable shall, if possible, be interpreted so as to be construed as valid, but in any event the validity or enforceability of the remainder hereof shall not be affected.

15.10 Without prejudice to any other right which any party who is not a party to this Agreement may have, nothing in this Agreement shall confer on any such third party any right to enforce any term of this Agreement under the Contracts (Rights of Third parties) Act 1999.

15.11 This Agreement may be executed in any number of counterparts (each of which taken together shall be deemed to constitute one and the same agreement and each of which individually shall be deemed to be an original) with the same effect as if the signatures on each counterpart were the same original document.

15.12.1 Nothing in this Agreement nor the rights of or performance of the parties’ respective obligations hereunder shall constitute either party as the agent or legal partner of the other.

15.12.2 Except as expressly provided in this Agreement neither party shall be entitled to bind or contract on behalf of the other party in any manner whatsoever.