“Proprietary Information” means anything provided by the Affiliate Company (‘the Company’) to the Marketer or discovered by the Marketer, that is part of the business, strategy, products, customer information and intelligence, materials or other information related to the Products and Company.
2 AFFILIATE MARKETING OF PRODUCTS
2.1 The Marketer agrees to provide affiliate marketing for the Products as agreed from time to time in writing and in accordance with these Terms. ‘Products’ means goods or services which the Marketer agrees to advertise and market on behalf of the Company in return for a commission fee (‘Affiliate Fee’) for any successful referral sale.
2.2 The Marketer represents and warrants that the Marketer will comply with any reasonable directions given to the Marketer about any advertising, marketing techniques, presentation, pricing and other specific marketing requirements with respect to the promotion of the Products.
2.3 Any distribution and use of any logo, name, website, materials and Products must be agreed prior in writing.
2.4 The Marketer warrants that the Marketer will not provide, share, write or make any negative, false, untrue or otherwise inappropriate endorsements, comments, posts or other public statements relating to our Products or the Company. The Marketer agrees to, at all times, abide by all local consumer and other laws in the state or country the Marketer is marketing and endorsing our Products.
2.5 The Company, at all times, retains full and all rights, ownership and interest in the Products and in all copyright, trademark and intellectual property in all Products and any related materials. Nothing in these Terms or any arrangement between the parties grants or shall be implied to grant any rights, ownership, license or other interest in the Products, Company, business name or any materials including but not limited to any intellectual property rights, other than the rights set out in these Terms.
2.6 The Marketer agrees not to market the Products in any manner that is not agreed by both parties. In particular, the Marketer agrees, at all times, to ensure the Company’s reputation is not damaged by the Marketer, the Marketer’s employees, contractors or agents. The Marketer agrees the Marketer will only promote the Products and Company with the utmost good faith.
2.7 The Marketer agrees that they will not discount, promote special offers, or otherwise offer our Products in any manner which has not been previously agreed in writing by the Company.
2.8 The Company warrants that it, at all times, will abide by the Australian Consumer Law with respect to all aspects of its Products. This includes but is not limited to prompt delivery, warranties and guarantees and accurate advertising.
2.9 The obligations in this clause survive the termination of this Agreement.
3 AFFILIATE PAYMENT AND COMMISSION FEES
3.1 In return for a Successful Referral, the Company will pay a Commission Fee in accordance with the amounts listed in the Schedule.
3.2 A ‘Successful Referral’ means a customer that the Marketer has referred to the Company and that has made full price payment for such Products.
3.3 Affiliate Fees are only earned on Successful Referrals for which the full payment for any Products have been collected from customers and confirmed as paid and received in full by the Company using the individual affiliate link, other affiliate identifier provided by the Company or by any other means agreed in writing. Affiliate Fee amounts are as agreed in writing from time to time. Affiliate Fees are not payable on any tax or taxable amounts or on any delivery or shipping fees.
3.4 Any customer payments which are subsequently cancelled, refunded or otherwise invalid, not received or unpaid in full by any customer for any Products sold by the Marketer will result in a non-payment of the Affiliate Fee. In the event we have already paid the Marketer the Affiliate Fees, this Affiliate Fee amount will be deducted from the next payment of Affiliate Fees to the Marketer.
4.1 If at any time either party wishes to terminate this arrangement, one party may provide notice in writing to the other party to stop this affiliate program, and all outstanding Affiliate Fees become immediately due and payable.
4.2 If a dispute arises, both parties agree that confidentiality is paramount to the reputation of both parties. At no time will any communications or discussions be made public, this includes but is not limited to any social media websites of either party. Any public discussion or comments about either party are considered defamatory, negative or otherwise damaging and will be the subject of compensation in any mediation or litigation claim.
4.3 In the event of any dispute about the affiliate program, quality or ownership of any Products or any aspect of these Terms, both the Marketer and the Company agree to obtain an independent professional arbitrator/dispute resolution specialist to make a determination on the dispute and each party agrees to pay their own costs.
5.1 Nothing in this Agreement shall be construed as creating any relationship beyond that of an affiliate. In particular, no relationship of agency, employment, or partnership is intended to be construed by this Agreement. Neither party has any authority to bind the other party in any manner to any third party, legal or contractual obligations, apart from these Terms.
5.2 Each party is responsible for payment of their own local taxes on any amounts received by the other party. For the sake of clarity, all Affiliate Fees and other payments the Company makes to the Marketer do not contemplate nor include any payment of local tax for which the Marketer is responsible. The Company will make any payment of tax for which they are directly responsible.
6 LICENSING AND OWNERSHIP
6.1 The confidentiality provisions of this agreement remain until the Confidential Information becomes part of the public domain.
6.2 Ownership of Intellectual Property and Confidential Information:
a) The Marketer will not use any of, and the Marketer acknowledges that the Company owns and retains all proprietary rights to all software, artwork or ideas relating to the brand/style, relevant copyrights, patents and other intellectual property in the affiliate marketing materials. The Marketer must not provide similar or other graphic designs, ideas, programs or similar nor use the idea, designs or similar resulting from provision of marketing Products to promote the Marketer themselves or the Marketer’s work without the Company’s express written permission. The Marketer also agrees not to replicate, copy, duplicate in whole or in part, in any manner, directly or indirectly, the Products, business model or ideas.
b) Any intellectual property or goodwill derived from the performance of marketing Products under the Terms will be owned by, remain with or be assigned to and will vest solely in the Company as owner and will become and form part of the Confidential Information.
c) The Company warrants that the intellectual property will not, to the best of their knowledge, infringe any industrial or intellectual property rights of any person.
6.3 Licensing: The Company grants the Marketer a non-exclusive, non-transferable license (‘License’) to use their name, logo and marketing materials in accordance with these Terms. This License terminates immediately upon expiration or termination of this arrangement.
7 INFORMATION PROVIDED TO PERFORM THE PRODUCTS
7.1 Confidentiality: The Marketer agrees that the Marketer will:
a) keep confidential;
b) not use directly or indirectly; and
c) not disclose directly or indirectly,
this arrangement and all information relating to, arising under or acquired under or as a consequence of this arrangement, except as required by law or any regulatory authority or stock exchange or with our express written consent.
7.2 The Marketer will not at any time disclose or allow access by any person or third party to any of the Confidential Information unless required to perform the affiliate marketing services in accordance with these Terms in which case, the Marketer will ensure they are under the same duty of confidentiality as the Marketer under these Terms;
7.3 The Marketer acknowledges that any information which is passed on to the Marketer by the Company to enable the Marketer to provide affiliate marketing services for the Products is to be considered Confidential Information will be kept as Confidential Information unless otherwise agreed.
7.4 The Marketer shall notify the Company immediately upon becoming aware of any unauthorized disclosure, copying, use or loss of all or any part of the Confidential Information.
The Marketer agree to indemnify the Company for any and all claims that any customer or third party may make as a direct or indirect result of the Marketer misrepresentations, illegal marketing practices or other such promotional activities of the Products including but not limited to any false, misleading, incorrect, inaccurate or otherwise actionable statement or claims.
9 GOVERNING LAW
These Terms are governed by the laws from time to time in force in the State of Victoria. The Marketer and the Company agree to unconditionally submit to the exclusive jurisdiction of the Courts of Victoria for determining any dispute concerning this arrangement.