1. Definition
1.1 In this Affiliate Agreement,
we define the following words or phrases:
"Affiliate" is the company or person
who send traffic through an affiliate link on affiliate website to ModelAgency.com.au, in exchange for commission when
referred customers purchase product or service on ModelAgency.com.au; the party who is entering into this Affiliate Agreement with ModelAgency.com.au;
"Affiliate Tracking System" is the mechanism of measuring the number of connections made to ModelAgency.com.au
via its Links;
"Chargeback" means any sum due or paid to an
Affiliate in respect of a Referral which is repayable on the
basis that either the sale in question was never concluded or
the lead in question was never realised;
"Commencement Date" is the date afffiliate application is approved,
upon which this Agreement comes into full
force and effect;
"Commission" is the rate of commission specified
on ModelAgency.com.au in relation to any Referrals;
"Intellectual Property Rights" means all trade
marks (whether registered or unregistered), logos, trade names
and copyright and other similar rights (whether now known or
in the future created) both in Australia and all other
countries of the world.
"Referrals" are leads and/or sales (as the
case may be) that are specified on ModelAgency.com.au as being
the basis on which any Commission is paid;
In this document "this Affiliate Agreement" is
the agreement made between ModelAgency.com.au and the Affiliate which
shall consist of the provisions of this document and any terms
and conditions that are intended to be binding on the Affiliate
which are set out by ModelAgency.com.au from
time to time.
2. the Affiliate
2.1 As a condition of ModelAgency.com.au entering
into this Agreement, the Affiliate shall:
(a) complete and submit to ModelAgency.com.au all applicable
Affiliate Forms; and
(b) be the registered owner or holds management right of the domain name directly
identifying the Affiliate Website. The Affiliate shall not
have access to a URL which simply directs Internet users to
ModelAgencyc.om.au.
2.2 The Affiliate shall, upon the Commencement Date,
select a password that (in conjunction with the Affiliate
ID) permits the Affiliate access to the Affiliate Section
of ModelAgency.com.au. The Affiliate shall use its best endeavours
to keep the password secure and shall immediately notify ModelAgency.com.au by email at admin@modelagency.com.au
if the Affiliate believes that any unauthorised use has or may be made of such
password.
2.3 The Affiliate shall, at all times, provide to ModelAgency.com.au,
free of charge, accurate, complete and non-misleading
information reasonably required by ModelAgency.com.au for the purposes
of providing the Service and, for the avoidance of doubt,
this condition shall apply to all information provided by
the Affiliate on the Affiliate Forms.
2.4 The Affiliate shall not use a Prohibited Site for
the purpose of making any Referrals.
2.5 The Affiliate shall not use any information or
data arising from the provision of the Service by ModelAgency.com.au
for the sending of unsolicited bulk email (sometimes known
as spam) and, in the event that the Affiliate breaches or
procures a breach of this condition, ModelAgency.com.au may, in its
absolute discretion, suspend the payment of all or any part
of the Commission.
2.6 The Affiliate shall ensure that the Affiliate Website
does not infringe any applicable laws, regulations and does
not contain any material which is obscene, ,offensive,
defamatory, threatening, menacing, blasphemous, or in breach
of any third party Intellectual Property Rights or liable
to incite racial hatred.
2.7 The Affiliate shall immediately notify ModelAgency.com.au
by email at admin@modelagency.com.au if the Affiliate becomes
aware of any allegation that content on the Affiliate Website
which may be in breach of condition
2.8 The Affiliate shall not, in any circumstances,
edit, amend, modify or otherwise alter any material provided
by ModelAgency.com.au to the Affiliate under this Agreement including,
for the avoidance of doubt, the referral Links.
2.9 The Affiliate acknowledges that the Affiliate
shall not prejudice, breach or act in a manner which is inconsistent
with the Intellectual Property Rights and other rights of
ModelAgency.com.au and, except only to the extent
set out in this Agreement, the Affiliate shall not have or
obtain any rights in relation to the Intellectual Property
Rights or any other rights of ModelAgency.com.au.
2.10 The Affiliate shall indemnify ModelAgency.com.au against
all damages, losses and expenses arising as a result of any
claim or action that materials on the Affiliate Website infringe
any Intellectual Property Rights belonging to ModelAgency.com.au.
3. the Affiliate Program
3.1 ModelAgency.com.au hereby grants to the Affiliate, a worldwide,
non-exclusive, royalty free, non-transferable licence to display
the Referral Links on the Affiliate Website.
3.2 In the context of overseeing and administering
the Service, ModelAgency.com.au may monitor the Affiliate Website
and any links from it.
3.3 ModelAgency.com.au shall use its reasonable endeavours
to check that the Affiliate Tracking Service has not, for
whatever reason, been deleted or removed from ModelAgency.com.au or deactivated or tampered with in any way.
3.4 The terms and conditions relating to the payment of the Commission are set out on Modelagency.com.au affiliate admin pages.
3.5 The Merchant only recover any Chargeback from the Affiliate if the Chargeback event both occurs and is notified
to the Merchant in writing within 21 (twenty-one) working days of the end of the calendar month in which the applicable
Referral took place.
4. the Merchant
4.1 ModelAgency.com.au shall
post all affiliate program details and the relevant commission
terms on its Website and the Affiliate may decide
whether to act as an affiliate to Modelagency.com.au's at the affiliate's
sole discretion.
4.2 Acting as an affiliate to Modelagency.com.au shall require
the Affiliate to place the relevant affiliate Link supplied
by ModelAgency.com.au on the Affiliate Website and to generally comply
with the terms of this Agreement.
4.3 ModelAgency.com.au shall use its reasonable endeavours
to supply and make available on its Website updated
information regarding its marketing and promotional
campaigns including changes thereto.
4.4 The Affiliate may place or remove any Affiliate Link on or from the Affiliate Website as it thinks fit.
5. Restrictions and Notifications
5.1 ModelAgency.com.au shall, by giving no less than 14 days
notice to the Affiliate and posting the same on its
website, send the Affiliate by email to the Specified Email
Address any additional terms and conditions or changes to
the way in which the Service shall be provided that are likely
to materially affect the Affiliate's position.
5.2 The Affiliate undertakes not to collect and/or
process Personal Data (as defined in the Data Protection Act
1998) from any of Modelagency.com.au's customers.
5.3 The Affiliate confirms to ModelAgency.com.au that the
Affiliate is not a private individual under 18 (eighteen)
years of age and none of the sites on which the Affiliate
places any Affiliate Links shall be a Prohibited Site.
6. Warranties
6.1 ModelAgency.com.au hereby warrants to
the Affiliate that (a) it will perform the Services with due
care and skill and in a professional manner; and (b) it has
full power and authority to enter into and perform this Agreement.
6.2 The Affiliate hereby warrants to ModelAgency.com.au that
(a) it has full power and authority to enter into and perform
this Agreement; (b) all information provided by the Affiliate
shall be complete, accurate and non-misleading; (c) it will
comply with all its duties under any data protection laws
and regulations applicable to the Affiliate Website; (d) its
performance of its obligations under this Agreement will not
infringe the Intellectual Property Rights of any third party;
(e) none of the information or materials supplied by the Affiliate
to ModelAgency.com.au shall be libellous, obscene, or abusive nor
shall it breach any law or regulation or give rise to any
legal claims of any sort.
6.3 Subject to condition 6.1, all conditions, warranties,
representations or other terms concerning the supply of Service
which might otherwise be implied or incorporated into this
Agreement or any collateral contract, whether by statute,
common law, custom or otherwise are hereby expressly excluded
to the fullest extent permitted by law.
6.4 Subject to the remaining terms of this Agreement,
ModelAgency.com.au does not warrant that the provision of the Service
or access to ModelAgency.com.au (or any part of it) will
be uninterrupted or error free .
6.5 ModelAgency.com.au gives no warranty or representation
in respect of the commercial benefit or amount of Commission
to be derived from the use by the Affiliate of the Services
or that the provision of the Service and the Affiliate Tracking
System will be uninterrupted or error free.
7. Limitations of liabilities and indemnity
7.1 SUBJECT TO CONDITIONS 7.2 AND
7.3 BELOW ModelAgency.com.au's TOTAL LIABILITY TO THE AFFILIATE INCLUDING
IN CONTRACT AND TORT (INCLUDING THE TORT OF NEGLIGENCE) SHALL
NOT EXCEED &AUD 2,500.00 (FIVE THOUSAND AUSTRALIAN DOLLARS).
7.2 None of the limitations and exclusions of liability
set out in this Agreement shall apply: (a) in respect of death
or personal injury caused by a party's negligence (for which
no limit of liability shall apply); or (b) in the case of
fraud; or (c) in respect of any breach of the terms implied
by Sales of Goods Act and Supply of Goods and Services Act; or (d) any other liability
which cannot be limited or excluded under applicable law.
7.3 Notwithstanding anything else in this Agreement,
ModelAgency.com.au shall not be liable to the Affiliate for loss
of profits, contracts, loss of reputation, loss caused by
any third party deleting, removing, deactivating or tampering
with the Affiliate Tracking Service or other indirect or consequential
loss whether arising from negligence, breach of contract or
howsoever.
7.4 The Affiliate shall immediately indemnify ModelAgency.com.au
against all proceedings, fees, expenses, payments, liabilities,
injury, costs and damages arising out of:
(a) the breach by the Affiliate of any of its obligations
under this Agreement; and
(b) any express or implied warranties, representations,
confirmations or acknowledgements that are given by the Affiliate
and prove to be untrue
7.5 Neither party shall be liable to the other for
any force majeure event being any situation (other than a
failure to pay moneys due to the other party) in which it
fails to comply with its obligations under this Agreement
due to anything beyond its reasonable control.
8. Data collection, disclosure and confidentiality
8.1 The Affiliate confirms that the
following information may be posted on Modelagency.com.au:
(a) the Affiliate's identity as one of the entities
that has subscribed as an affiliate; and
(b) any information (other than confidential information)
that is submitted by the Affiliate to ModelAgency.com.au.
8.2 The Affiliate confirms that in order to enable
ModelAgency.com.au to improve and/or in order to promote or market
the Affiliate Program ModelAgency.com.au may produce statistics or summaries
relating to the use of the Program; and ModelAgency.com.au may contact
the Affiliate by email, telephone or post for feedback regarding
the Program including any ways in which it might be improved,
in relation to the affiliate programme matters
at any time. None of the information referred to in this condition
7.2 shall identify the Affiliate.
8.3 Each party agrees and undertakes that both before
and following termination of this Agreement for whatever reason
it shall keep confidential and shall not use for its own purposes,
or without the prior written consent of the other party, disclose
to any third party, any information disclosed to it in connection
with this Agreement (whether orally or in writing), and which
is expressly stated or marked as being confidential or which
ought reasonably to be treated as such, unless such confidential
information is public knowledge other than as a result of
a breach of this condition, has been independently acquired
from a third party without restriction on disclosure, is required
by law or any regulatory body or is required to be disclosed
for the purposes of litigation by or against either party.
9. Term and termination
9.1 This Agreement shall
commence on the Commencement Date and it shall continue for
an initial period of one year ("the Initial Term")
and shall continue thereafter for further periods of one year
unless and until terminated by either party at any time with
immediate effect.
9.2 The termination of this Agreement shall not limit
the enforceability of any of the rights or obligations of
the parties that accrued before the termination date.
9.3 Upon the termination of the Agreement, the Affiliate
shall immediately remove all the Affiliate Links from the Affiliate
Website and, for the avoidance of doubt, the Affiliate shall
not be entitled to receive any Commission on any Referrals
made after the termination date.
9.4 The Affiliate shall acquire no rights following
the termination of this Agreement to use Intellectual Property
Rights of ModelAgency.com.au including domain names
or any text, or images, banners or any other works created
by or for ModelAgency.com.au.
9.5 Conditions 5.3, 6,7 and 8 shall survive the termination
of this Agreement.
10. General
10.1 The terms and conditions of this
Agreement shall apply as between the parties in respect of
the subject matter to the exclusion of all other terms and
conditions (including any terms and conditions that the Affiliate
purports to apply).
10.2 This Agreement may not be assigned by the Affiliate
without ModelAgency.com.au's prior written consent.
10.3 ModelAgency.com.au shall be entitled to appoint any sub-contractor
for the provision of the Services.
10.4 This Agreement shall be binding upon and enure
for the benefit of the successors in title of the parties
hereto.
10.5 If any provision in this Agreement shall in whole
or in part be held to any extent to be illegal or unenforceable
under any enactment or rule of law then that provision or
part shall to that extent be deemed not to form part of this
Agreement and the enforceability of the remainder of this
Agreement shall not be affected.
10.6 ModelAgency.com.au and the Affiliate are each independent
contractors with respect to each other and nothing in the
Agreement shall create any association, partnership, joint
venture or agency relationship between them.
10.7 ModelAgency.com.au shall not be liable to the Affiliate
for loss arising from or in connection with any representations
(except fraudulent), agreements, statements or undertakings
made prior to the date of execution of this Agreement other
than those representations, agreements, statements or undertakings
confirmed by a duly authorised representative of ModelAgency.com.au
in writing or expressly incorporated or referred to in this
Agreement.
10.8 This Agreement is subject to the laws of Australia
and shall be subject to the non-exclusive jurisdiction of
the Australian courts.
