Parties
This Agreement is between A.C.N. 658 868 092 PTY LTD (Business) and you, the Affiliate set out in the Affiliate Registration form provided to you (Affiliate) with these Terms and Conditions (Terms).
Affiliate arrangements
By agreeing to these Terms, the Affiliate agrees to be an affiliate for the Business and join the affiliate program of the Business (Affiliate Program).
The Affiliate Program involves the issue of a unique Code and Link provided to the Affiliate. The Code and Link will be provided either manually or via an affiliate software program at the discretion of the Business and be notified to the Affiliate by the Business. The Code may entitle the user of the Code to a discount, but that will be entirely at the discretion of the Business.
Where the Business has sales made with your Code or Link at the end of each calendar month, the Business will report those relevant sales to the Affiliate and request the Affiliate send an invoice to the Affiliate in accordance with the terms of this Agreement.
Term
This Agreement takes effect on and from the date the Business informs the Affiliate that they have been accepted to the Affiliate Program (Start Date) and continues until terminated by either party in accordance with this Agreement.
Process
During the term of this Agreement, the Affiliate will use reasonable commercial efforts, where appropriate, to send customers to the Business by providing their Code to prospective customers for purchase of products from the website of the Business (Website).
The Affiliate is under no obligation to send customers to the Business and does so at its own discretion.
The Affiliate understands and agrees that the Business may restrict certain services or products from the Affiliate arrangement. The Business will use reasonable commercial endeavours to let the Affiliate know which products and/ or services are excluded from their Affiliate Program.
Affiliate Fee
If a sale is made on the Website using the Affiliate’s Code, the Business will record 10% of that sale and each subsequent sale (affiliate sales made through payment plans will be paid in conjunction with payment plan periods). The week following the end of each calendar month (Monthly Due Date), the Business will review and confirm all affiliate transactions. Approved transactions for the previous month will be paid within 30 days after the affiliate transaction report has been confirmed with Spicy Pilates Accounts.
The Business is only liable to pay one Affiliate Fee per Code. If a third party makes a claim for an Affiliate Fee (or part of an Affiliate Fee) in respect of a Code, then the Business may apportion the Affiliate Fee under this Agreement among the claimants for that Code at its sole discretion. Any decision it makes regarding the apportionment is final.
No Exclusive Commitment
This Agreement is not a commitment or agreement by either party to work exclusively with the other party regarding referrals or any other business activities.
Conflict of interest
If either Party to this Agreement becomes aware of any actual or potential conflict of interest between this Agreement and any other work it has been offered or is undertaking, it must inform the other Party in writing and take reasonable steps to resolve the conflict.
Notice to Terminate
Either Party may terminate this Agreement by providing 5 (five) Business Days’ written notice to the other Party.
Termination on Breach
This Agreement will terminate immediately upon written notice by the Business, if the Affiliate is in breach of this Agreement and that breach has not been remedied within 5 (five) Business Days of being notified by the Business.
Consequences of Termination
Upon termination of this Agreement, the Affiliate must (and must ensure that its Personnel);
stop issuing the Code to prospective customers or promoting the Business and its products;
not disparage or otherwise make unfavourable statements or comments regarding the Business or its Personnel in any way – including either directly or by implication, verbally or in writing;
immediately return to the Business any and all property, including Confidential Information and Intellectual Property belonging to the Business or its Personnel, in its or its Personnel’s possession; and
not use any Intellectual Property belonging to the Business or its Personnel.
Termination of this Agreement will not affect any rights or liabilities which a Party has accrued under it.
Clauses 2, 4.3, 5, 6, 7 and 9 will survive termination of this Agreement.
Confidential Information
Subject to subclause (b) of this clause below, the Affiliate must (and must ensure that its Personnel);
keep confidential; and
not use or permit any unauthorised use of,
all Confidential Information.
The above subclause (a) does not apply where;
the Affiliate has the prior written consent of the Business;
the disclosure is required by law; or
the disclosure is to a professional adviser in order to obtain advice in relation to matters arising in connection with this Agreement and provided that the Affiliate ensures the adviser complies with the terms of clause 5.1(a).
The Affiliate acknowledges and agrees that monetary damages may not be an adequate remedy for a breach of this confidentiality clause (clause 5.1) and that the Business is entitled to seek an injunction, or any other remedy available at law or in equity, at its discretion, to protect itself from a breach (or continuing breach) of this clause.
Privacy
The Affiliate agrees to comply with the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) and any other applicable legislation or privacy guidelines in making any Referral under this Agreement.
Disputes
A Party must not commence court proceeding relating to any dispute arising from, or in connection with, this Agreement (Dispute) without first attempting to resolve the dispute amicably and must attempt to use alternative dispute resolution before filing any court proceedings.
Warranties
The Affiliate represents and warrants to the Business;
it has full legal capacity and power to enter into this Agreement, to perform its obligations under this Agreement, to carry out the transactions contemplated by this Agreement, to own its property and assets and to carry on its business;
this Agreement constitutes legal, valid and binding obligations, enforceable in accordance with its terms;
the execution and performance by it of this Agreement and each transaction contemplated by it does not conflict with any law, order, judgment, rule or regulation applicable to it or any instrument binding on it;
it will conduct business in a manner that reflects favourably on the Business and its products;
it will make no false or misleading representations with respect to the Business and its products and services (where applicable) and in particular will comply with the Australian Consumer Law (ACL);
except as required by law or as set out in this Agreement, it will not give or make any undertakings, guarantees or warranties to any person (including any potential Referrals) with respect to the Business and its products and services without the prior written consent of the Business;
in marketing the Website of the Business or the products and/ or services of the Business, it will comply with all laws, act with due care and skill and not engage in any unfair, deceptive or unethical business practice;
it will comply with any reasonable directions given to it by the Business from time to time;
it will comply with any disclosure requirements under law to identify itself as an affiliate of the Business; and
if applicable, it is registered for GST purposes.
Limitations
To the maximum extent permitted by law, the Business makes no guarantees or warranties in respect of the templates or any other products or services supplied by the Business.
The Affiliate makes no warranty or assurance in relation to the quality of a Referral.
Indemnity
To the maximum extent permitted by law, the Affiliate must indemnify the Business against any Liability arising from or in connection with;
any act or omission of the Affiliate or its Personnel;
any breach of this Agreement; and
any third party claim against the Business,
arising from or in connection with this Agreement, but this indemnity will be reduced proportionately to the extent the Liability was caused by the negligence of the Business.
Definitions
In this Agreement, unless the context otherwise requires;
Business Day means a day on which banks are open for general banking business in the State set out in the schedule, excluding Saturdays, Sundays and public holidays.
Confidential Information includes information or document which;
is disclosed to the Affiliate in connection with this Agreement (whether before or after the Effective Date);
is prepared or produced under or in connection with this Agreement (whether before or after the Effective Date); or
relates to the Business, assets or affairs of the Business or the subject matter of, the terms of and/or any transactions contemplated by this Agreement,
whether or not such information or documentation is reduced to a tangible form or marked in writing as “confidential”, and whether it is disclosed to the Affiliate or received, acquired, overheard or learnt by the Affiliate in any way whatsoever.
Dispute has the meaning given in clause 6.1(a).
Agreement means this referral agreement and all schedules, annexures and attachments included in this referral agreement.
GST has the meaning which it is given in the A New Tax System, Goods and Services Tax, Act 1999 (Cth).
Intellectual Property means any;
copyright;
registered or unregistered design, patent, trade mark rights;
trade, business, company or domain names;
know-how, inventions, processes, trade secrets, Confidential Information;
circuit layouts, databases or source codes; or
similar rights in any part of the world,
relating to the Business and/or the operation of the Business, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the Intellectual Property.
Liability means any expense, cost, liability, loss, damage, claim, demand or proceeding (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent.
Party means a party to this Agreement, being either the Business or the Affiliate, noting the Affiliate provided their details to the Business to make an application for the affiliate program of the Business and these details are taken to be the detail of the Affiliate for the purposes of this Agreement.
Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents.
Start Date means the date on which this Agreement is accepted by the Affiliate or the Affiliate joins the affiliate program of the Business, whichever occurs first.
Notices
A notice or other communication given under this Agreement must be;
in writing, in English and signed by the sender; and
addressed and delivered to the intended recipient by hand, prepaid post or email in accordance with the address details last notified by the recipient to the Parties.
A notice or communication is taken as having been given;
when left at a Party’s current address for notices;
if mailed, on the third Business Day after posting (if delivered to an address within the same country) or on the tenth Business Day after posting (if delivered to an address within another country); or
if sent by email, if sent before 5pm on a Business Day in the place of receipt then on the Business Day when it is sent, otherwise on the following Business Day.
Waiver
Any failure or delay by a Party in exercising a power or right (either wholly or partially) in relation to this Agreement does not operate as a waiver or prevent that Party from exercising that power or right or any other power or right. A waiver must be in writing.
Powers, rights and remedies
Except as provided in this Agreement or permitted by law, the powers, rights and remedies of a Party under this Agreement are cumulative and in addition to any other powers, rights and remedies the Party may have.
Assignment
The Affiliate may not assign, transfer or otherwise deal with all or any of its rights or obligations under this Agreement without the prior written consent of the Business. Any purported dealing in breach of this clause is of no force or effect. For clarity, if the Affiliate sells their business, the new owner of that business should enter into a new affiliate agreement with the Business and this Agreement will not continue.
Costs and expenses
Each Party must pay its own costs and expenses (including legal costs) in connection with the negotiation, preparation and execution of this Agreement and any document relating to it.
The Affiliate will bear all costs necessary to market the Business under this Affiliate Agreement, however it is marketed on the platforms the Affiliate has access to.
Relationship of Parties
This Agreement is not intended to create a partnership, joint venture or agency relationship between the Parties. Nothing in this Agreement gives a Party authority to bind any other Party in any way.
The Affiliate must not, verbally, in writing or displayed on any form of communication, including marketing materials, websites or any form of electronic media, state that they are anything other than an Affiliate of the Business.
Independent legal advice
The Affiliate acknowledges and agrees that it has had an opportunity to read this Agreement, it agrees to its terms and, prior to executing it, it has been provided with the opportunity to seek independent legal advice about its terms.
Severance
If a provision of this Agreement is held to be void, invalid, illegal or unenforceable, that provision must be read down as narrowly as necessary to allow it to be valid or enforceable.
If it is not possible to read down a provision (in whole or in part), that provision (or that part of that provision) is severed from this Agreement without affecting the validity or enforceability of the remainder of that provision or the other provisions in this Agreement.
Entire agreement
This Agreement contains the entire understanding between the Parties, and supersedes all previous discussions, communications, negotiations, understandings, representations, warranties, commitments, documents and agreements, in respect of its subject matter.
Amendment
This Agreement may only be amended by written document executed by all Parties.
Counterparts
This Agreement may be executed in any number of counterparts that together will form one Agreement.
Governing law and jurisdiction
This Agreement is governed by the laws of [insert state or territory you are located in] (Jurisdiction) and each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in the Jurisdiction and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.
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