1.   In this Agreement:

• “the Commission” means either 3% of the Company’s net receipts as a monetary payment, or 5% as a credit on account against the purchase of qualifying products produced by Foresight Sports and distributed through Foresight Sports Europe. An additional 2.5% of the Company’s net receipts will be paid for any receipts from Leads registered within 5 days of the execution date of this Agreement;
• “the Company” means Optimum Golf Technologies Ltd, trading as Foresight Sports Europe;
• “the Introducer” means the counter-party to this Agreement, as confirmed by way of the completion of the online Referral Programme registration page hosted on the Foresight Sports Europe website;
• “the Products” are: GCQuad, GCHawk, GC3, all Foresight Sports Europe simulators, FSX 2020 Software, FSX Play Software;
• “the Territory” means any of the countries that fall within the EMEA Region;
• “the Lead” means an enquiry from a private consumer (not a trade or business or golf professional) who lives in the Territory, and is either a member of the golf club at which the Introducer works, or is a direct customer of the Introducer;
• “this Agreement” means the Agreement between the Company and the Introducer for the payment of the Commission, governed by these Terms and Conditions;
• a “Commission Statement” is a written statement setting out the Company’s Net Receipts under all Relevant Contracts, together with the calculation of the Introducer’s Commission;
• the Introducer “Introduces” a Lead when a New Lead is registered within the Company’s internal sales database having been created by the completion of an online enquiry form. The Company will provide the Introducer with a unique weblink which will list the Introducer as having Introduced the Lead when the enquiry form is completed;
• the “Introduction Date” is the date on which the Company registers the Lead within the internal sales database;
• the Lead will be “New” if the Company has not at any time previously sold any goods or services to them and has not been in bona fide contact or negotiations to do so in the six months before the Introduction Date;
• “Net Receipts” is the net amount actually received by the Company in cleared funds from the New Lead under the Relevant Contract, after deducting any discounts or rebates, any value added tax or other sales tax, and any delivery charges which are itemised separately on the invoice;
• a “Relevant Contract” is a contract to purchase any Products which the Lead enters into with the Company during the period of 3 months following the Introduction Date; and
• “the Term” means the term of this Agreement as described in paragraph 11 below.

2. If a New Lead Introduced by the Introducer during the Term enters into a Relevant Contract, the Company will credit the Introducer’s account with the Company with the Commission. This credit will be available to be spent with the Company within 12 months of the date on which the Introducer’s account is credited, and any unspent credit at the end of that period will be lost. As an alternative to the credit amount the Introducer may select the monetary payment as described in the definition of Commission. For the avoidance of doubt the monetary payment is always a lower amount than the credit amount.

3.   A Lead Introduced by the Introducer will be presumed to be New unless the Company notifies the Introducer within 14 days of the Introduction Date that the Lead is not New.

4.  For the avoidance of doubt, if the Introducer Introduces to the Company a New Lead who then introduces the Company to a third party who subsequently purchases any Products from the Company, the Introducer shall not be deemed to have Introduced the third party to the Company by virtue of the initial Introduction, and shall not be entitled to any Commission on the Company’s Net Receipts under any contract the Company enters into with the third party.

5. The Commission will be due to the Introducer within 60 days after the end of the month in which the Company receives the Net Receipts. Within 30 days after the receipt of the Net Receipts, the Company will send the Introducer a Commission Statement. If the Introducer has any queries, he shall notify the Company within 7 days of receiving the Commission Statement, failing which the Commission Statement will conclusively be deemed to be correct. Any dispute will be referred to the Company’s auditors (acting as experts and not as arbitrators) for determination and their decision shall, save in case of manifest error, be final and binding on the Company and the Introducer. The Company shall credit the Introducer’s account with the Commission in the same currency as the Company received the Net Receipts, within 30 days of the amount being agreed or determined.

6. The Company will not be responsible for any costs incurred by the Introducer in carrying out his duties under this Agreement unless it has expressly agreed otherwise in writing before such costs are incurred.

7. The Introducer has no authority, and must not hold himself out or permit any person to hold him out, as being authorised to bind the Company in any way, and the Introducer must not do or say anything which reasonably creates the impression that he is so authorised. The Introducer has no authority or ability to make or give any representations, warranties or other promises concerning the Products which are not contained in the Company’s marketing materials, to make or enter into any contracts or commitments or incur any liability for or on behalf of the Company, including for the supply of the Products or their price, and the Introducer has no authority to negotiate any terms for the supply of the Products to any Leads, to negotiate or vary the terms on which the Company supplies the Products, or to enter into any other legally binding commitment on the Company’s behalf. The Introducer’s sole authority is to send and/or show prospective Leads the Company’s marketing materials and solicit their use of the weblink to complete and send their details to the Company via the enquiry form. The Introducer must disclose to each New Lead that he is only an introducer and that his authority is limited as above.

8. The Introducer shall:

(a)  act faithfully and diligently towards the Company and not allow his interests to conflict with his duties under this Agreement;

(b) not produce any marketing material for the Products or use the Company’s name, logo or trademarks on any marketing material for the Products without the Company’s prior written consent;

(c) eport in writing to the Company from time to time on progress made with New Leads;

(d) use the Company’s intellectual property only for the purposes of this Agreement and during the Term, and only as authorised by the Company in writing, and not use any trademarks, trade names or get-up which resemble the Company’s intellectual property and which would therefore be likely to confuse or mislead the public or any section of the public, and not do or omit to do, or authorise any third party to do or to omit to do, anything which could invalidate or be inconsistent with the Company’s ownership of, or the validity and enforceability of, the Company’s intellectual property;

(e) not remove, alter or otherwise tamper with any trademarks, trade names, logos, numbers or other means of identification on the Products or the packaging therefore which come into the Introducer’s possession, custody or control, and not place any trademark or trade name of the Introducer’s on the Products or any packaging or other materials used in connection therewith;

(f) not use the Company’s confidential information for any purpose other than to perform the Introducer’s obligations under this Agreement;

(g)  not assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of the Introducer’s rights and obligations under this Agreement without the Company’s prior written consent; and

(h) comply with the Company’s reasonable and lawful instructions.

9. The Company shall act in good faith towards the Introducer at all material times, and shall supply the Introducer with such information about the Company and such marketing information for, and details of, the Products as the Company reasonably considers necessary for the Introducer to carry out his duties, but for the avoidance of doubt the Company shall not be under any obligation to follow up any New Lead Introduced by the Introducer, or to enter into any Relevant Contract.

10.  The Introducer’s rights under this Agreement are non-exclusive. The Company is free to appoint any other person as its agent, distributor, reseller, or franchisee for the sale of the Products in the Territory, and to market and sell the Products directly to customers in the Territory, and the Introducer shall not be entitled to any Commission on the Company’s Net Receipts from sales achieved via these channels.

11.  This Agreement shall take effect from the date on which the Introducer entered their details and confirmed acceptance of these Terms and Conditions through the online Referral Agreement registration page hosted on the Foresight Sports Europe website. Unless the Company terminates it earlier in accordance with paragraph 12, the Agreement shall run for an initial term of one year and continue thereafter unless and until the Company or the Introducer gives to the other the following notice of termination, which may expire on or at any time after the end of the first year:

(a) during the first year of this Agreement – one calendar month;

(b) during the second year of this Agreement – two calendar months; and

(c) during the third or any subsequent year of this Agreement – three calendar months.

12. Without affecting any other right or remedy available to it, the Company may also terminate this Agreement with immediate effect by giving the Introducer written notice if the Introducer:

(a) commits a material breach of any term of this Agreement which is irremediable or (if it is remediable) fails to remedy it within 14 days of being given written notice by the Company to do so;

(b) repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that his conduct is inconsistent with him having the intention or ability to give effect to the terms of this Agreement;

(c) takes any step or action in connection with his being made bankrupt, entering any composition or arrangement with his creditors, having a receiver appointed to any of his assets, or ceasing to carry on business or, if the step or action is taken in any jurisdiction other than the United Kingdom, in connection with any analogous procedure in that other jurisdiction; or

(d)    (being an individual) reaches the normal retiring age for agents in this sector in the Territory, or in any event the age of 65, or dies, becomes incapable by reason of incapacity or illness (whether mental or physical) of managing his own affairs or becomes a patient under any mental health legislation. 

13. On termination of this Agreement:

(a) the Introducer shall remain entitled to any Commission which becomes due on New Leads Introduced by him if the Introduction Date was during the Term and the Relevant Contract was entered into during the Term or within 3 months of its termination, but not where the Introduction Date was after the date of termination or the Relevant Contract was entered into more than 3 months after such date;

(b) the Introducer shall immediately cease describing himself as an Introducer to the Company and using the Company’s intellectual property rights;

(c) the Introducer shall within 30 days of termination return to the Company at his own expense any samples of the Products and any advertising, promotional or sales material relating to the Products then in his possession, or otherwise dispose of it as the Company may direct;

(d) termination shall not affect any other rights, remedies, obligations or liabilities of the Company or the Introducer 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; and

(e) the Company and the Introducer agree that the Commercial Agents (Council Directive) Regulations 1993 (“the Regulations”) do not apply to this Agreement but, if and to the extent that this is not the case, and provided the Introducer gives notice of his intention as required thereunder, the Introducer shall have the right to be indemnified as provided in regulation 17 of the Regulations, unless any of the circumstances mentioned in regulation 18 applies. For the avoidance of doubt, the Introducer shall have no right to any compensation under the Regulations on termination of this Agreement. 

14. Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the Company and the Introducer, and it constitutes the entire agreement between them relating to its subject matter.  It supersedes and extinguishes any other previous agreements, promises, assurances, warranties, representations and understandings between the Company and the Introducer, whether written or oral, relating to the same subject, and the Company and the Introducer each agrees with the other that it or he has no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement and no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in it.

15. No variation of this Agreement shall be effective unless it is in writing and signed by or on behalf of the Company and the Introducer. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default, and no delay or failure to exercise, or the single or partial exercise of, any right or remedy shall waive that or any other right or remedy or prevent or restrict the further exercise of that or any other right or remedy. 

16. Any notice or other communication given to the Company or the Introducer of us shall be in writing, addressed to the recipient at the address specified by way of the completion of the online Referral Agreement registration page hosted on the Foresight Sports Europe website, or at such other address as the recipient may have specified to the other party in writing in accordance with this paragraph, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, commercial courier, fax or email. Any such notice or communication shall be deemed to have been received:

(a)    if delivered personally, when left at the address referred to in this paragraph;

(b)    if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the business working day after posting;

(c)    if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or

(d)    if sent by fax or email, one business day after transmission.

The provisions of this paragraph do not apply to the service of any proceedings or other documents in any legal action.

17. This Agreement, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the law of England and Wales, and the Company and the Introducer irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any such dispute or claim.