This Affiliate Marketing Agreement (Agreement) governs the terms on which Dog Cloud Pty Ltd ABN 20 639 377 076 (the Company) provides its Affiliate Program (as defined below) to you (the Affiliate). If you are agreeing to the terms of this Agreement on behalf of someone or entity, you represent and warrant that that you have the irrevocable authority and agreement of that person or entity to be bound by this Agreement.
By clicking this box that states you agree to this Agreement during the registration process, you agree to be bound by this Agreement. If you don’t agree to be bound by this Agreement, you must not use the Website or participate in the Affiliate Program.
This Agreement may be updated by the Company from time to time. Each time you use the Website or otherwise participate in you should revisit these Terms.
This Agreement, together with any other terms we provide to you, set out the terms of our offer to provide the Affiliate Program to you and constitutes our agreement.
Terms and Conditions
1. Definitions and interpretation
In this Agreement unless inconsistent with the context or subject matter the following terms have the corresponding definitions:
(a) Account: a Customer’s account on the Company Website.
(b) Address for Service: the address of each party as otherwise notified to the other party in writing (and in the case of the Affiliate, means the address as set out on their registration application).
(c) Affiliate Commission: the fee payable by the Company to the Affiliate in respect of a Qualified Referral, being a percentage of the purchase price (exclusive of GST) actually received by the Company from a Customer in respect of a Product. The percentage rate for each Product will be as set out on the Company Website.
(d) Affiliate Content: all materials and information, created, conceived, developed or generated by the Affiliate in connection with the Affiliate Program, including the Affiliate Marketing, however excludes any Company Materials.
(e) Affiliate Marketing: has the meaning given to it under 10.2.
(f) Affiliate Portal: the portal made available for the Affiliate accessible at jv.dogcloudbeds.com.
(g) Affiliate Program: the program as described in clause 3.
(h) Affiliate Website: the Affiliate’s website as specified in the Affiliate’s registration application.
(i) Agreement: this Affiliate Marketing Agreement, consisting of these terms and conditions.
(j) Applicable Law: all legislation and regulation that relates to the Company or Affiliate.
(k) Customer: a person who purchases a Product, where that person was referred to the Company by the Affiliate in accordance with this Agreement.
(l) Commencement Date: the date that the Affiliate agrees to this Agreement.
(m) Company Materials: all materials and information, created, conceived, developed or generated by the Company in connection with the Affiliate Program, the Products and the Company generally and includes:
(i) the Company logo and business name;
(ii) the Company Website;
(iii) the Special Links;
(iv) advertisements or promotions of the Products including the Marketing Material;
(v) advertising briefs; and
(vi) the Products.
(n) Company Website: dogcloudbeds.com or any other domain nominated by the Company which is associated with the Company and/or the Affiliate Program from time to time.
(o) Confidential Information: all and any information in whatever form relating to the business of the Company which has been disclosed by the Company in confidence or which might reasonably be understood to have been disclosed to the Company in confidence and which is not readily available in that form in the public domain and shall include this Agreement, information relating to or arising from the transactions under this Agreement and the Intellectual Property Rights.
(p) Disqualified Referral: a click through or referral that is excluded from this Affiliate Program in accordance with clause 6.3.
(q) Government Agency: any government or governmental, administrative, monetary, fiscal or judicial body, department, commission, authority, tribunal, agency or entity in any part of the world.
(r) GST Law: has the same meaning as GST Law in the A New Tax System (Goods & Services Tax) Act 1999 (Cth).
(s) Intellectual Property Rights: all intellectual property rights of any kind, in any jurisdiction, subsisting now or in the future (including business, company or trade names, domain names, patents, inventions, copyright, design rights, know-how, trade marks, the right to sue for passing off and rights to use, and protect the confidentiality of, confidential information), whether registered or unregistered, and including the rights to apply for or renew the registration of any such rights and any rights the subject of any lapsed application or registration.
(t) Loss: any loss, liability, cost, charge, expense, tax, duty or damage of any nature whatsoever, including special, incidental, or consequential damages, losses or expenses (howsoever arising or caused, including, without limitation, negligence).
(u) Pre-Existing IP Rights: Intellectual Property Rights in all materials owned by the Company or the Affiliate (as the case may be) prior to the date of this Agreement or which was developed independently of this Agreement.
(v) Product Guarantee Period: the guarantee period as set out on the Company Website for each Product, during which time the Customer may return the Product.
(w) Products: the products listed on the Company Website which the Company permits the Affiliate to market and sell to prospective Customers on the terms set out in this Agreement.
(x) Qualified Referral: a referral that is included in this Affiliate Program in accordance with clause 6.1.
(y) Special Links: any link generated by the Company which includes the Affiliate’s tracking ID and enables the Company to track and register click throughs to the Company Website from potential Customers.
(z) State: Queensland.
(aa) Sub-Affiliate: a third party who is a Sub-Affiliate to the Affiliate in accordance with clause 7.
(bb) Term means the term of this Agreement, commencing on the Commencement Date and continuing unless and until terminated earlier in accordance with its terms.
In this Agreement the following rules of interpretation apply, unless the contrary intention appears or context otherwise requires:
(a) Headings and subheadings are for convenience only and do not affect the interpretation of this Agreement.
(b) References to clauses, schedules, annexures, appendices, attachments and exhibits are references to the clauses of, and the schedules, annexures, appendices, attachments and exhibits to, this Agreement.
(c) References to parties are references to the parties to this Agreement.
(d) References to a party to any agreement or document include that party’s permitted assignees and successors, including executors and administrators and legal representatives.
(e) Words denoting the singular include the plural and words denoting the plural include the singular.
(f) Words denoting any gender include all genders.
(g) The word ‘person’ includes any individual, corporation or other body corporate, partnership, joint venture, trust, association and any Government Agency.
(h) A reference to a body (other than a party to this Agreement), whether statutory or not, that ceases to exist or has its powers or functions transferred to another body is a reference to the body that replaces it or that substantially succeeds to its powers or functions.
(i) A reference to any agreement or document (including this Agreement) includes any amendments to or replacements of that document.
(j) A reference to a law includes:
(i) legislation, regulations and other instruments made under legislation and any consolidations, amendments, re-enactments or replacements of them;
(ii) any constitutional provision, treaty or decree;
(iii) any judgment;
(iv) any rule or principle of common law or equity,
and is a reference to that law as amended, consolidated, re-enacted, replaced or applied to new or different facts.
(k) Any promise, agreement, representation or warranty given or entered into on the part of two or more persons binds them jointly and each of them severally.
(l) Any promise, agreement, representation or warranty given or entered into on the part of two or more persons is for the benefit of them jointly and each of them severally.
(m) No provision of this Agreement will be construed adversely to a party because that party was responsible for the preparation of that provision or this Agreement.
(n) If a period of time begins on a given day or the day of an act or event, it is to be calculated exclusive of that day.
(o) A reference to time is a reference to time in the capital city of the State.
(p) A reference to a day is a reference to a day in the capital city of the State.
(q) A reference to a day is to be interpreted as the period of time commencing at midnight and ending 24 hours later.
(r) If any act is required to be performed under this Agreement by a party on or by a specified day and the act is performed after 5.00 pm on that day, the act is deemed to be performed on the next day.
(s) If any act is required to be performed under this Agreement on or by a specified day and that day is not a business day, the act must be performed on or by the next business day.
(t) A reference to an amount of dollars, $ or A$ is a reference to the lawful currency of Australia, unless the amount is specifically denominated in another currency.
(u) Specifying anything in this Agreement after the terms ‘include’, ‘including’, ‘includes’, ‘for example’, ‘such as’ or any similar expression does not limit the sense of the words, description, definition, phrase or term preceding those terms unless there is express wording to the contrary.
(v) Where this Agreement are executed for a party by an attorney, the attorney by executing it declares that the attorney has no notice of revocation of the power of attorney.
(w) This Agreement include all schedules, annexures, appendices, attachments and exhibits to it.
(x) A reference to writing or written includes email.
(y) Where a word or phrase is defined, other parts of speech and grammatical forms of that word or phrase have corresponding meanings.
2.1. This Agreement commences on the Commencement Date and continues until terminated in accordance with its terms.
3. Affiliate Program
3.1. During the Term, the Affiliate may earn Affiliate Commissions for Qualified Referrals made by the Affiliate to the Company where a Customer, through a Special Link, clicks through to the Company Website and purchases a Product, on the terms of this Agreement.
3.2. The Affiliate Program offered is non-exclusive and the Company may appoint other affiliates to provide similar services to the services provided by the Affiliate under this Agreement.
4.1. The Affiliate must submit an application to the Company to become an Affiliate and enrol in the Affiliate Program. The Company may accept or reject the Affiliate’s application at its discretion.
4.2. The Affiliate’s application must include information about the Affiliate as well as any other information requested by the Company.
4.3. To facilitate referrals, the Company will provide the accepted Affiliate with Special Links and permits the accepted Affiliate to:
(a) display those Special Links on the Affiliate Website and otherwise share those Special Links with prospective Customers; and
(b) advertise the Company’s Products in connection with the Special Links, in accordance with this Agreement.
5. Special Links and Advertising
5.1. In using Special Links or otherwise promoting or advertising the Products, the Affiliate must:
(a) only include the Special Links or otherwise promote or advertise the Products on the Affiliate Website or in communications with potential Customers (such as through phone call or email);
(b) not engage in any misleading and deceptive conduct, or make any misrepresentations in respect of the Products or the Company to any prospective Customer; and
(c) act professionally, courteous and in good faith in its dealings with potential Customers.
5.2. The Affiliate is solely responsible for any advertising in connection with the Special Links and the Company’s Products on the Affiliate Website or in correspondence with potential Customers (including ensuring that the advertisements are compliant with Applicable Laws). The Company accepts no liability in this respect.
5.3. The Affiliate is solely responsible for ensuring that the Affiliate Website or correspondence (where appropriate) contains the proper implementation of the Special Link. Any Special Links not properly implemented will not track referrals of Customers from the Affiliate Website or correspondence (where appropriate) properly and unless otherwise agreed by the Company, no Affiliate Commission will be payable by the Company to the Affiliate where such occurs.
6. The Referral Process
6.1. Qualified Referral
A referral will be a “Qualified Referral” and included in this Affiliate Program provided that:
(a) a Customer click-through of the Special Link is received, registered and recorded with the Company (Special Link tracking is registered through cookies in accordance with clause 6.2);
(b) the Customer then purchases a Product (having that purchase recorded through the cookie session) following the prompts on the Company Website and completing the order (including payment);
(c) the Customer does not use any other referral or tracking link between the time when the Customer clicks the Special Link, creates an Account or logs in to the Account and makes payment for the Product; and
(d) it is not a Disqualified Referral.
The Company may, in its absolute discretion waive any of the above requirements, for a referral to be a “Qualified Referral”.
6.2. Cookies and session tracking
Special Link tracking will apply based on cookie session tracking, the length and duration of which will be as determined and varied by the Company from time to time at its discretion. In the event that the click-through does not occur or is unable to be registered during the cookie session then tracking will not be registered. This includes without limitation if the Customer clears their cache or cookies, the Customer has cookies disabled in their browser, the cookie expires, the Customer creates a new Account, or the Customer uses a different device (where the cookie is not stored). The Company is not responsible for ensuring that the Customer follows any click-through instructions.
Where multiple affiliates have referred a Customer, the referral will be counted towards whoever the Customer is associated with on the first recorded click-through registered with the Company (except in circumstances where the cookie has expired for the first recorded click-through). For the avoidance of doubt, there is not split commissions.
6.3. Disqualified Referral
A click-through will considered a “Disqualified Referral” and excluded from this Affiliate Program if:
(a) the Affiliate and/or Customer uses the Special Link incorrectly, or fails to use the Special Link;
(b) the Customer does not purchase a Product;
(c) the tracking is not registered for the click through to the Company Website as a result of an issue or error that is beyond the control of the Company or as a result of an act or omission of the Customer (including if they clear their cache, cookies, create a new Account as set out under clause 6.2);
(d) the Products are purchased after termination of this Agreement;
(e) the Products are returned during the Product Guarantee Period;
(f) the click through and/or tracking is a result of an error or computer software bug; or
(g) the click through and/or tracking is a result of a breach of the terms of this Agreement (including the Affiliate’s obligations).
7. Indirect Referrals
7.1. The Affiliate may be able to earn Affiliate Commissions for Qualified Referrals made by Sub-Affiliates (being third parties referred by the Affiliate to the Company) where this is offered by the Company from time to time (Indirect Referral). The Company may active the Indirect Referral program in its discretion, and is not obliged to do so. Unless the Company expressly notifies the Affiliate that they are eligible for Indirect Referrals, the Affiliate will not earn any Affiliate Commissions in respect of any Indirect Referrals.
7.2. A third party will be a Sub-Affiliate of the Affiliate where:
(a) the Affiliate adds that third party to their Affiliate Program as a Sub-Affiliate;
(b) that third party then joins this Affiliate Program as an affiliate; and
(c) that third party has been approved by the Company as a Sub-Affiliate.
7.3. Sub-Affiliates must be a third party unrelated to the Affiliate.
7.4. For purposes of an Indirect Referral, a referral will be a Qualified Referral where the above clause 6.1 occurs in respect of a Sub-Affiliate’s Special Link to a Customer.
8. Affiliate Commissions
8.1. The Company will pay the Affiliate Commission to the Affiliate in respect of each Qualified Referral. This Agreement will apply to all Products that are part of the Affiliate Program with varying Affiliate Commission levels determined by the relevant Product.
8.2. The Affiliate Commission for each relevant Product will be as published on the Affiliate Portal from time to time.
8.3. The Company reserves the right to vary the Affiliate Commission rates at any time, on giving 30 days’ written notice to the Affiliate. Variations will be effective at the expiry of the notice period and will be published on the Affiliate Portal.
8.4. The Company is only liable to pay the Affiliate Commission on the expiry of the relevant Product Guarantee Period for the Product (the subject of the relevant Qualified Referral). For the avoidance of doubt, in the event the Customer returns a Product during the Product Guarantee Period, then the Affiliate will not be entitled to the Affiliate Commission in respect of that Product. Each Product may carry a different Product Guarantee Period, which will be as published on the Affiliate Portal from time to time.
8.5. Within 5 business days of the end of each month during the Term, the Company will provide the Affiliate with a report setting out (in respect of that previous calendar month):
(a) the total number of purchases made by Customers as a result of a Qualified Referral where the Product Guarantee Period has expired (if any); and
(b) the Affiliate Commission payable. The Company’s calculation of the Affiliate Commission is final and binding on the parties in the absence of manifest error.
8.6. On the date of generation of the report referred to in clause 8.5, the Company will provide the Affiliate with a Recipient Created Tax Invoice (RCTI), except where the Affiliate indicated that it is not registered for GST. The Affiliate consents to the issue of such RCTI by the Company as contemplated by this clause and will not issue an invoice to the Company in respect of the Affiliate Commission. Each party acknowledges that it is registered for GST and that it will notify the other party if it ceases to be registered. Both parties to this supply agree that they are parties to an RCTI agreement.
8.7. Where the Affiliate is not registered for GST, then they must submit a standard tax invoice.
8.8. The Company will make payment of the Affiliate Commission monthly in arrears during the Term, within 14 days of the date of the tax invoice, subject to the Affiliate issuing the Company with a valid tax invoice (as applicable) in respect of the Affiliate Commission.
8.9. All payments under this Agreement will be made by the Company through PayPal payment systems. The Affiliate is solely responsible for ensuring that payment details (including PayPal account details) are up to date and accurate, and that it maintains a valid account with PayPal. The Company will not be liable for any payments made to the Affiliate’s PayPal account where incorrect payment details are supplied by the Affiliate, or the Affiliate is no longer able to gain access to its PayPal account.
9. Company Rights
9.1. During the Term, the Affiliate acknowledges and agrees that:
(a) the Company has the right to run advertising campaigns independent of the Affiliate, and is under no obligation to involve the Affiliate in any of its marketing plans;
(b) the Company may continue to market and sell the Products through its own marketing and sale mediums;
(c) the Company has the right to amend the end-customer Product pricing at any time without notice; and
(d) the Company has the right to run sales and offer discounts to Customers.
10. Marketing Materials
10.1. The Company will provide the Affiliate with headlines, images, banners, marketing claims and information in respect of the Products (Marketing Material) for use in connection with the referral of Customers as contemplated by this Agreement during the Term, which will be provided by way of a non-exclusive, non-transferable, non-sublicensable, non-assignable, revocable licence. The Company may revise the Marketing Materials at any time, and upon updated Marketing Materials being provided by the Company the Affiliate must cease to use any former Marketing Materials which are no longer approved by the Company.
10.2. The licence granted by the Company to the Marketing Material permits the Affiliate to use such Marketing Materials to create and develop its own marketing materials (Affiliate Marketing) for use on the Affiliate Website, subject to the other terms of this Agreement. All Affiliate Marketing is subject to the written approval of the Company before being published. In the event the Company requests revisions be made to the Affiliate Marketing, then such request does not limit the Affiliate’s liability under the other terms of this clause.
10.3. The Affiliate acknowledges and agrees that:
(a) the Affiliate Marketing must:
(i) not damage the reputation of the Company;
(ii) be compliant with the other terms of this Agreement; and
(iii) be compliant with Applicable Laws;
(b) the Affiliate must not make any claims or include any claims with respect to the Products or otherwise in any Affiliate Marketing except those which are included in the Marketing Materials;
(c) it must not alter and/or modify such Marketing Materials, except to the extent permitted by this Agreement;
(d) it must not reproduce, copy, make public, disclose the whole or any part of the Marketing Materials except to the extent approved by the Company.
11.1. During the Term, the Company may run competitions between affiliates and display details of the affiliates on an internal website (including details of affiliates presented in a leaderboard). The Affiliate grants the Company a non-exclusive, royalty free and fully paid up licence to use the Affiliate’s trademarks, business names, logos and other identification as designated by the Affiliate in its application and as otherwise provided by the Affiliate to the Company (collectively Affiliate Marks) for display on the Company’s internal website in connection with such competition and leaderboard.
12.1. The Affiliate’s participation in the Affiliate Program and the use of the Marketing Materials, Affiliate Marketing and any advertising that is used to promote or advertise the Products or that is contained near the Special Links must not:
(a) be false, inaccurate or misleading;
(b) be fraudulent, deceptive or dishonest;
(c) infringe any third party’s copyright, patent, trademark, trade secret, intellectual property or other proprietary rights or rights of publicity or privacy;
(d) violate any Applicable Laws (including those governing consumer protection, unfair competition, criminal law, anti-discrimination or trade practices law);
(e) be defamatory, libellous, unlawfully discriminatory, threatening or harassing;
(f) be explicitly sexual, obscene or contain comments of a religious, political or social nature;
(g) contain anything that the Company considers inappropriate including without limitation sexual content, child abuse, drugs, weapons, violence or religiously oppressing content;
(h) contain any viruses, trojan horses, worms, or other devices or other computer programming routines that may or are intended to damage, modify, delete, interfere with, surreptitious intercept, access without authority or expropriate any system, data or personal information or otherwise affect the integrity, operation or security of the Affiliate Program;
(i) intercept, record, read or interpret any information submitted to the Company or any account information of users of the Company;
(j) modify or redirect or substitute any Special Link (except with the Company’s authority);
(k) cloak, hide, spoof or otherwise attempt to mislead the Customer as to the use of the Special Link;
(l) artificially generate click throughs or links outside of the ways contemplated by this Agreement (including to increase the Affiliate Commissions payable);
(m) create liability for the Company;
(n) be illegal, obscene or harmful to the reputation, goodwill or interest of the Company;
(o) damage the credibility or integrity of the Affiliate Program or the Company, or dilute, tarnish, or otherwise harm the Company image in any way;
(p) breach or violate any of the Company’s policies;
(q) be in a manner that falsely implies endorsement with the Company, partnership or otherwise misleads others as to an affiliation with the Company other than that contemplated by this Agreement;
(r) collect, store, input, upload, post, disclose or transmit personal information or data about others, including, without limitation email addresses;
(s) be in a way that violates these terms; or
(t) be for unlawful or dangerous activities or purposes.
13. Relationship of Parties
13.1. This Agreement does not create any relationship of employment, joint venture, partnership or principal and agent between the Company and the Affiliate (notwithstanding any terminology used by the Company for the Affiliate Program).
13.2. The Affiliate shall not enter into any agreements on behalf of the Company, shall make no warranty either expressed or implied on behalf of the Company (other than any warranties the Company has made in respect of the Products to the Affiliate in writing) and shall not incur any expenses or other obligations on behalf of the Company.
14.1. The Affiliate agrees to indemnify the Company, its directors, officers, employees, contractors and agents (and holds the same harmless) against any Loss suffered or incurred by the Company arising directly or indirectly from:
(a) a breach of this Agreement; or
(b) any act or omission (including negligence) of the Affiliate or anyone acting on the Affiliate’s behalf, except to the extent the Company has caused or contributed to the Loss.
15.1. The Affiliate may terminate this Agreement at any time by deleting their account to the Affiliate Portal, or otherwise giving notice to the Company of its termination.
15.2. The Company may terminate this Agreement, at any time and without cause by giving the Affiliate 30 days’ written notice.
15.3. In addition to the other terms of this clause, the Company may immediately terminate this Agreement on giving written notice to the Affiliate where:
(a) the Affiliate breaches this Agreement;
(b) the Company believes that the Affiliate’s actions may cause legal liability for the Company or other Customers; or
(c) in the Company’s sole opinion, the Affiliate’s conduct, acts or omissions threaten, interfere or impact upon the integrity or credibility of the Affiliate Program and/or the Company.
15.4. Termination of this Agreement shall be without prejudice to the rights and liabilities of the parties which accrued prior to termination.
16. Effect of termination
16.1. Upon termination of this Agreement:
(a) the Affiliate must:
(i) remove all Special Links and cease advertising the Products;
(ii) cease representing itself as having any relationship of any kind with the Company; and
(iii) not publish (including verbally to any person) any derogatory comments in respect of the Company; and
(b) the Affiliate will be entitled to payment of the Affiliate Commissions as follows:
(i) where this Agreement is terminated other than by the Company under clause 15.3, and subject to the other terms of this Agreement, the Affiliate will continue to remain entitled to future payment of the Affiliate Commissions for any Qualified Referrals made prior to the date of termination;
(ii) where this Agreement is terminated by the Company under clause 15.3 the Affiliate will have no entitlement to any future payment of the Affiliate Commission (whether accrued prior to termination or otherwise) and any entitlement to any future payment of the Affiliate Commissions will immediately cease following termination.
17.1. Other than where:
(a) the Confidential Information is in the public domain, except as a consequence of a breach of this clause;
(b) expressly agreed by all parties in writing; or
(c) required by law,
the Affiliate must at all times:
(d) treat and keep the Confidential Information confidential;
(e) not use, or allow the use, of the Confidential Information by any third party;
(f) not disclose or allow the disclosure, of the Confidential Information or the fact of the disclosure of the Confidential Information to any third party;
(g) not use or disclose to a third party any aspect of the Confidential Information for any purpose whatsoever.
17.2. If requested by the Company, and upon termination of this Agreement, the Affiliate must immediately return all Confidential Information, and any copies of the Confidential Information, to the Company.
17.3. This clause survives termination of this Agreement.
18. Title and Intellectual Property Rights
18.1. Pre-Existing IP
Each party acknowledges that all Pre-existing IP Rights remain the sole property of the owner. Ownership of Pre-existing IP Rights remains unchanged by this Agreement, other than as expressly set out in this Agreement.
18.2. Company Materials
(a) The Company shall at all times retain all title, interest and rights (including Intellectual Property Rights) to any Company Materials and grants the Affiliate a limited, revocable, non-transferable, non-assignable, non-sublicensable, non-exclusive licence to use the Company Materials to the extent and for the purpose as follows:
(i) to only use the Company Materials made available to the Affiliate for use of advertising the Products, where that advertisement is compliant with the terms of this Agreement (and any limitations given at the time the Intellectual Property Rights of the Company are made available or otherwise specified by the Company); and
(ii) to include the Special Links to refer Customers to the Company Website.
(b) The Affiliate acknowledges the Company’s title to the Company Materials and undertakes not to take or permit or omit any action which would or might:
(i) invalidate or put in dispute the Company’s title to the Company Materials or any part of it;
(ii) oppose any application for registration or invalidate any registration of the Company Materials or any part of it;
(iii) support any application to remove or undo the Company’s title in the Company Materials or any part of it; or
(iv) assist any other person directly or indirectly in any of the above.
18.3. Affiliate Content
(a) Except to the extent that such Affiliate Content consists of Company Materials, the Affiliate shall at all times retain ownership of the Affiliate Content including the Intellectual Property Rights subsisting in it.
(b) The Affiliate warrants to the Company that:
(i) the Affiliate owns or has the necessary licenses to post such Affiliate Content and that any Affiliate Content provided will not infringe any third party rights (including intellectual property or confidentiality obligations) nor give rise to a liability to make royalty or other payments to a third party;
(ii) the Affiliate Content will not:
(i) breach the provisions of any law, statute or regulation;
(ii) give rise to any cause of action against the Company.
This clause survives termination of this Agreement.
19. Earnings Disclaimer
19.1. Nothing on the Company Website or the Affiliate Program or any of the information provided by the Company to the Affiliate (Information) purports to offer business, legal or other professional advice.
19.2. The Company provides support, guidance and tools to assist the Affiliate to participate in the Affiliate Program, however the Affiliate’s success depends on many factors, including their dedication, participation, desire, and motivation. The Affiliate is 100% responsible for results from the Affiliate Program.
19.3. Nothing on the Website or contained in the Affiliate Program is a promise or guarantee of results and/or earnings. The Company cannot and does not make any guarantees of results and/or earnings from the Affiliate’s participation in the Affiliate Program. The Affiliate acknowledges that there is an inherent risk in any business activity and agrees that there is no guarantee that the Affiliate will earn any money or reach any minimum levels of income as a result of the Affiliate’s participation in the Affiliate Program.
19.4. Any financial representations referenced by the Company on the Website, in videos, forums or during the Affiliate’s participation in the Affiliate Program are illustrative of concepts only and should not be considered as promises for actual or future performance.
20.1. Words used in this clause that have a defined meaning in the GST Law have the same meaning as in the GST Law unless the context indicates otherwise.
20.2. Unless expressly stated otherwise, the consideration for any supply under or in connection with this Agreement is exclusive of GST.
20.3. To the extent that any supply made under or in connection with this Agreement is a taxable supply (other than any supply made under another agreement that contains a specific provision dealing with GST), the amount payable by the recipient is the consideration provided under this Agreement for that supply (unless it expressly includes GST) plus an amount (additional amount) equal to the amount of that consideration (or its GST exclusive market value) multiplied by the rate at which GST is imposed in respect of the supply.
20.4. The recipient must pay the additional amount at the same time as the consideration to which it is referable, and upon the issue of an invoice relating to the supply. GST will not be applicable for international sales.
20.5. Whenever an adjustment event occurs in relation to any taxable supply to which clause 20.3 applies:
(a) the supplier must determine the amount of the GST component of the consideration payable; and
(b) if the GST component of that consideration differs from the amount previously paid, the amount of the difference must be paid by, refunded to or credited to the recipient, as applicable.
21.1. All notices authorised or required under this Agreement to be given by a party to the other shall be in writing sent by email or delivered personally or sent by pre-paid registered post and in each case addressed to the other party at that party's Address for Service or as the case may be at such other address as a party may from time to time notify to the other.
21.2 The following shall constitute proof of receipt:
(a) proof by posting by registered post; or
(b) proof of dispatch by email.
21.3. Receipt of a notice given under this Agreement will be deemed to occur:
(a) in the case of a communication sent by pre-paid registered post, on the third business day after posting;
(b) in the case of an email, on the business day immediately following the day of dispatch.
21.4. If a notice is sent via post, it must also be sent via email.
22. General Provisions
An amendment or variation of any term of this Agreement must be in writing and signed by each party.
22.2. No Waiver
(a) No party may rely on the words or conduct of any other party as being a waiver of any right, power or remedy arising under or in connection with this Agreement unless the other party or parties expressly grant a waiver of the right, power or remedy. Any waiver must be in writing, signed by the party granting the waiver and is only effective to the extent set out in that waiver.
(b) Words or conduct referred to in clause 22.2(a) include any delay in exercising a right, any election between rights and remedies and any conduct that might otherwise give rise to an estoppel.
22.3. Assignment, Novation and Other Dealings
(a) The Company may assign or novate any rights that arise out of or under this Agreement without the consent of the Affiliate.
(b) Any rights of the Affiliate that arise out of or under this Agreement are not assignable or capable of novation by the Affiliate without the prior written consent of the Company, whose consent must not be unreasonably withheld.
The parties must bear their own costs of and incidental to the negotiation, preparation and execution of this Agreement.
(a) If the whole or any part of a provision of this Agreement is or becomes invalid or unenforceable under the law of any jurisdiction, it is severed in that jurisdiction to the extent that it is invalid or unenforceable and whether it is in severable terms or not.
(b) Clause 22.5(a) does not apply if the severance of a provision of this Agreement in accordance with that clause would materially affect or alter the nature or effect of the parties’ obligations under this Agreement.
22.6. No Merger
On completion or termination of this Agreement, the rights and obligations of the parties set out in this Agreement will not merge and any provision that has not been fulfilled remains in force.
Any clause which by its nature is intended to survive termination or expiry of this Agreement will survive such termination or expiry.
22.8. Further Action
Each party must do all things (including completing and signing all documents) reasonably requested by the other party that are necessary to give full effect to this Agreement and the transactions contemplated by this Agreement.
22.9. Time of the Essence
Time is of the essence in this Agreement in respect of any date or time period and any obligation to pay money.
22.10. Relationship of the Parties
(a) Nothing in this Agreement gives a party authority to bind any other party in any way.
(b) Nothing in this Agreement imposes any fiduciary duties on a party in relation to any other party.
22.11. Remedies Cumulative
Except as provided in this Agreement and permitted by law, the rights, powers and remedies provided in this Agreement are cumulative with and not exclusive to the rights, powers or remedies provided by law independently of this Agreement.
22.12. Entire agreement
This Agreement state all the express terms agreed by the parties about its subject matter. It supersedes all prior agreements, understandings, negotiations and discussions in respect of its subject matter.
22.13. No Reliance
No party has relied on any statement, representation, assurance or warranty made or given by any other party, except as expressly set out in this Agreement.
22.14. Governing Law and Jurisdiction
(a) This Agreement are governed by the law in force in the State.
(b) Each party irrevocably submits to the exclusive jurisdiction of courts exercising jurisdiction in the State and courts of appeal from them in respect of any proceedings arising out of or in connection with this Agreement.
(c) Each party irrevocably waives any right it has to object to the venue of any legal process in the courts described in clause 22.14(b) on the basis that:
(i) any proceeding arising out of or in connection with this Agreement has been brought in an inconvenient forum; or
(ii) the courts described in clause 22.14(b) do not have jurisdiction