Affiliate Agreement
This Finance Club Affiliate Agreement ("Agreement") is a binding document, and describes the rights and obligations of Finance Club Pty Ltd ("our," "us," "we," or "Finance Club") and companies or businesses that want to place a link(s) from their site (or sites) to the Finance Club Site (as defined below) and participate as an affiliate in the Affiliate Program of Finance Club and to be eligible for the receipt of Commissions (as defined below) (the "Program"). By clicking "I Agree" below, the individual or entity ("you" or "your") desiring to place a link(s) from its site or sites (for the purposes of this Agreement, "your site") and become an affiliate of Finance Club agrees to each of the terms and conditions set forth below.
If you do not agree with any of the terms set forth below, please discontinue the registration process.
1. ENROLMENT IN THE AFFILIATE NETWORK
To begin the enrolment process, you must submit a complete Program application via our web site at www.financeclub.com.au ("Finance Club Site"). We will evaluate your application in good faith and will notify you of your acceptance or rejection in a timely manner. We may reject your application if we determine (in our sole discretion) following our review of your site that your site is unsuitable for the Program for any reason. Unsuitable sites include, but are not limited to, those that:
- Contain sexually explicit materials; or
- Contain hate/violent/offensive content; or
- Promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age; or
- Promote illegal activities or otherwise violates any applicable laws, including those targeting "spyware," "adware" or SPAM; or
- Violate any intellectual property rights, including, without limitation, scraping text or images from Finance Club's Websites; or
- Do not clearly state an online privacy policy to its visitors; or
- Are otherwise considered offensive or inappropriate at Finance Club's sole discretion
If we reject your application, you are welcome to reapply to the Program at a later date. If we accept your application and your site is thereafter determined (in our sole discretion) to be unsuitable for the Program, we may terminate this Agreement at any time, with or without cause, effective immediately upon notice to you.
2. MODIFICATION
We may modify any of the terms and conditions contained in this Agreement at any time in our sole discretion. A change notice will be sent to you by email. Modifications may include, but are not limited to, changes in the scope of available Commissions (as defined below), Commission schedules, payment procedures and Program rules. If any modification is unacceptable to you, you agree that your only recourse is to terminate this Agreement. Your continued participation in the Program following the expiration of 10 calendar days from the posting of a change notice will constitute your binding acceptance of the changes to this Agreement.
3. YOUR RIGHTS, OBLIGATIONS AND RESPONSIBILITIES
3.1. As an affiliate in the Program (an "Affiliate Site"), we will make available to you a variety of graphic and textual links (each of these links sometimes being referred to herein as "Links" or, individually, as a "Link"), and, subject to the terms and conditions hereof, you shall display such Links prominently throughout your site as you see fit in accordance with Section 10.1 herein.
3.2. You will be solely responsible for the development, operation, and maintenance of your site and for all materials that appear on your site. Such responsibilities include, but are not limited to, the technical operation of your site and all related equipment; the accuracy and propriety of materials posted on your site (including, but not limited to, all product and service-related materials); and ensuring that materials posted on your site do not violate or infringe upon the rights of any third party and are not libellous or otherwise illegal. We disclaim all and you agree that we bear no liability for all such matters. Further, you will indemnify and hold us harmless from all claims, damages, and expenses (including, without limitation, solicitors' fees) relating to the development, operation, maintenance and contents of your site.
3.3. You hereby agree that your site will not, in any way, copy or resemble the look and feel of the Finance Club Site nor will you create the impression that your site is the Finance Club Site or is a part of the Finance Club Site. You also hereby agree that your site will not contain any content of our site or any materials which are proprietary to us, except with our prior written consent, other than as contained in the Links.
3.4. You further hereby agree that your domain name does not and will not contain the words "Finance Club," "financeclub.com.au" "www.financeclub.com.au," or any variation thereof.
3.5. You hereby agree that you will at all times comply with our advertising policy and that any marketing conducted by you will be in the form of banner ads, search engine marketing, newsletters and confirmed opt-in email marketing only.
3.6. Without limiting the effect of the foregoing you must not:
- Operate an unsuitable site as defined by clause 1;
- Use any form of marketing which:
- Does not comply with all relevant laws, common law or regulations (including relevant industry regulations, standards of practice or codes of conduct);
- Is in the nature of SPAM, adware, spyware or outbound voice broadcasting;
- Infringes the intellectual property rights of any person;
- Is obscene, offensive, defamatory or in any way unsuitable for people under the age of eighteen (18) years;
- Comprise anything that can be used for any purpose or activity of an illegal, fraudulent or defamatory nature;
- Is misleading or deceptive or likely to mislead or deceive; or
- Which comprises anything which may adversely reflect us.
4. AGREEMENTS REGARDING LINKS
4.1. In utilizing the Links you agree that you will cooperate fully with us in order to establish and maintain such Links. You also agree that you will display on your site only those graphic or textual images to indicate that each Link is provided by us, and you will promptly substitute such images with any new images provided by us from time to time throughout the term of this Agreement.
4.2. The Links may be modified and/or expanded from time to time throughout the term of this Agreement by mutual agreement in writing. Each Link connecting users of your site to the pertinent area of any Finance Club Affiliate Program Site will in no way alter the look, feel, or functionality of that Finance Club Affiliate Program Site.
4.3. If you are redirecting or stealing traffic, using robots, spyware, warez, hackware, parasiteware, or engaging in cybersquatting, typosquatting, spamming, indiscriminate advertising, or unsolicited commercial emailing or any other such process or technology without limitation, whether or not yet invented, we will terminate this Agreement immediately. If you are operating or utilizing a website or email link to websites that contain or promote any type of content that is libellous, defamatory, obscene, pornographic, abusive, violent, bigoted, hate-oriented, illegal, cracking, hacking or warez or that offer any illegal or immoral goods or service, or link to any website that does so, we shall be entitled to terminate this Agreement immediately.
5. FINANCE CLUB'S RIGHTS, OBLIGATIONS AND RESPONSIBILITIES
5.1. We have the right, in our sole discretion, to monitor your site at any time and from time to time to determine if you are in compliance with the terms of this Agreement.
5.2. We will:
- provide all information necessary to enable you to make the Links;
- ensure that all orders placed by a customer through the Links are processed;
- be responsibly for order entry, payment processing, shipping, cancellations, returns and related customer service through our third party traffic system including tracking the number and amount of sales generated by the encoded links from your site and for providing information to you regarding sales statistics [See clause 9].
5.3. In the event that we discover fraud or unlawful conduct on your part or by any third party using links from your site, we reserve the right to deny payments to you for such activity.
6. POLICIES, PRICING AND AVAILABILITY
6.1. Customers who buy products or services through the Program will be deemed to be our customers. Accordingly, all of our rules, policies, and operating procedures concerning customer orders, customer service, and our product sales will apply to those customers. We may change our policies and operating procedures at any time.
6.2. The price charged for products sold under the Program and the Finance Club Affiliate Program Sites will be determined by us according to our own pricing policies. Product and Service prices may vary from time to time, including price increases and special discounts offered by us. Our products or services may change frequently and we will use commercially reasonable efforts to present update information available regarding same. We cannot guarantee the availability or price of any particular product or service.
7. ORDER PROCESSING
7.1. We will process orders placed by customers who follow Links from your site to the Finance Club Affiliate Program Sites. We reserve the right to reject orders that do not comply with any requirements that we (or our vendors) periodically may establish.
7.2. As between you and us, we shall have the sole right and responsibility for processing all orders for our products or services on or through the Finance Club Affiliate Program Sites, including receiving, filling, shipping and handling, collecting payment, tracking and transaction security. We will track the volume and amount of sales made to customers who purchase products using Links from your site to the Finance Club Affiliate Program Sites. We will also use reasonable efforts (using only the technologies we subscribe to that can be reasonably expected for tracking sales through the Program) to track sales resulting from customers that fill out the Finance Club Affiliate Program Sites forms or request information from the Finance Club Affiliate Program Sites.
7.3. You acknowledge that you shall not be a party to any transaction between any customer and us and all aspects of such orders including, but not limited to, purchase terms, payment terms, warranties, guarantees and delivery are solely between the customer and us.
8. COMPENSATION
You acknowledge and agree that our acceptance of your application does not automatically entitle you to receive Commissions from the Program or us. As consideration for accepted orders made by customers who follow the Links from your site that are established and maintained in accordance this Agreement, during the term of this Agreement, we will pay you a Commission. The Commission payable will vary by Finance Club Affiliate program type. Terms of each shall be clearly stated on 'Program Details and 'Partner With Us' web pages of each program, and will be permanently available as part of the Frequently Asked Questions section of the Finance Club Web Site (collectively, the "Commissions").
8.1. We will pay to you the Commissions, if any, twice a month as follows: provided that the total Commissions due to you at the end of a month exceed fifty dollars ($50.00) or one hundred dollars ($100.00) for international affiliates (the "Commissions Payment Floor"), we shall send to you a Commission cheque, at the address designated by you in the enrolment application, for the applicable Commission (less any taxes required to be withheld under applicable law) within forty-five (45) days following the end of each month subsequent to the Effective Date. However, if the total Commissions due to you at the end of the month are less than the Commissions Payment Floor, we will hold those Commissions until the total Commissions due is at least equal to the Commissions Payment Floor.
8.2. Where 'Charge Backs' and 'Claw Backs' occur, the corresponding commission amounts may be set off against future commissions earned. These transactions will be documented in the Account Information and Sales Statistics (Section 9).
9. ACCOUNT INFORMATION AND SALES STATISTICS
9.1. We have established a third party tracking system for each of the Finance Club Affiliate Programs. The tracking system records the transaction number and value of enquiry generated by the encoded Links from your site and for providing information to you regarding statistical reporting. The username and password provided to you upon approval of your application will enable you to enter a secure, password-protected site to review your traffic and sub affiliate statistics.
9.2. We have also put in place a proprietary tracking system for tracking the progress of Finance Products and other products and services involving extended negotiation and qualification periods. The username and password access to this system will be provided when your affiliation with Finance Club programs begins to generate leads/enquiries for these products and services.
9.3. Access to either or both of these tracking systems will vary depending upon the Finance Club Program you enrol in.
10. INTELLECTUAL PROPERTY RIGHTS
10.1. Each party owns and shall retain all right, title and interest in its names, logos, trademarks, service marks, trade dress, copyrights and proprietary technology, including, without limitation, those names, logos, trademarks, service marks, trade dress, copyrights and proprietary technology currently used or which may be developed and/or used by it in the future.
10.2. We hereby grant to you, during the term and subject to the terms and conditions of this Agreement, a non-exclusive, non-transferable, worldwide royalty free licence to:
- place a Link provided by us on your website;
- permit visitors to your website to access our website through the Links, solely in accordance with the terms of this Agreement; and
- use our name, logos, trademarks, service marks, and trade dress ("Licensed Materials") for the sole purpose of linking to our site.
10.3. You shall not make use of any Licensed Materials for purposes other than promoting our products solely in accordance with the terms of this Agreement without our prior written consent. You further agree not to use the Licensed Materials in any manner that is disparaging or that otherwise portrays us in a negative light. If you do not fully comply with this provision we may withhold Commissions, immediately terminate this Agreement and/or permanently remove you from the Program.
10.4. Your use of our Licensed Materials pursuant to Section 10.2 and 10.3 must be in a manner that is clearly less prominent than that of your name, logos, trademarks, service marks, trade dress, products and/or site name. You are prohibited from creating an impression that there is an association or affiliation between us beyond the arrangement outlined in this Agreement.
10.5. You shall immediately cease using our Licensed Materials upon the termination or expiration of this Agreement.
10.6. You hereby grant to us a non-exclusive, worldwide, royalty-free license to use, reproduce and transmit any graphic or banner ad incorporating your name and logo ("Your Trademarks") submitted by you solely for co-branding purposes or as a return link from our site to your site. We will remove such graphic or banner ad upon your request.
11. CONFIDENTIAL INFORMATION
Except as otherwise provided in this Agreement or with the consent of the other party hereto, each of the parties hereto agrees that all non-public information of the other party, including, without limitation, the financial terms, customer and vendor lists, and pricing and sales information, shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by the other party for its own business purposes or for any other purpose except and solely to the extent that any such information is generally known or available to the public through a source or sources other than such party hereto or except as contemplated by this Agreement. Notwithstanding the foregoing, each party is hereby authorized to deliver a copy of any such information (a) to any person pursuant to a subpoena issued by any court or administrative agency, (b) to its accountants, attorneys, or other agents on a confidential basis, and (c) otherwise as required by applicable law, rule, regulation or legal process.
12. REPRESENTATIONS AND WARRANTIES
You hereby represent and warrant to us as follows:
12.1. The execution, delivery and performance by you of this Agreement and the consummation by you of the transactions contemplated hereby will not, with or without the giving of notice, the lapse of time, or both, conflict with or violate:
- any provision of law, rule, or regulation to which you are subject;
- any order, judgment, or decree applicable to you or binding upon your assets or properties;
- any provision of your by-laws or certificate of incorporation; or
- any agreement or other instrument applicable to you or binding upon your assets or properties.
12.2. You are the sole and exclusive owner of Your Trademarks, and have the right and power to grant the license to use such items in the manner contemplated herein, and such grant does not and will not:
- breach, conflict with or constitute a default under any agreement or other instrument applicable to you or binding upon your assets or properties; or
- infringe upon any trademark, trade name, service mark, copyright or other proprietary right of any other person or entity.
13. INDEMNIFICATION
You hereby agree to indemnify and hold harmless us, our subsidiaries, directors, officers, employees, agents, shareholders, partners, members and other owners, against any and all third party claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs and expenses (including reasonable solicitors' fees) (any or all of the foregoing hereinafter referred to as "Losses") insofar as such Losses (or actions in respect thereof) arise out of or are based on:
- any claim that our use of Your Trademarks infringe any trademark, trade name, service mark, copyright or other proprietary right of any third party;
- any misrepresentation of a representation or warranty set forth in Section 12 above, or
- any claim related to the content contained in your site (other than content provided by us hereunder).
14. WEB SITE SERVICE INTERRUPTION
We will make every effort to keep the Finance Club Site operational. However, certain technical difficulties may, from time to time, result in temporary service interruptions. You agree not to hold us liable for any of the direct or indirect consequences of such interruptions.
15. DISCLAIMERS OF IMPLIED WARRANTIES
We do not make, and hereby disclaim, any representations or warranties regarding the finance club site and the products offered through the finance club site or any portion thereof, express, implied or statutory, including (without limitation) implied warranties of merchantability, fitness for a particular purpose or non-infringement of third party rights. Without limiting the generality of the foregoing, we specifically disclaim any representation or warranty regarding any commission or other benefit that you might obtain through your participation in the program or this agreement.
16. LIMITATION OF LIABILITY
You hereby agree that we will not be liable for indirect, special or consequential damages, or any loss of commissions, revenue, profits, or data, arising in connection with this agreement or the program, even if we have been advised of the possibility of such damages. Further, our aggregate liability arising with respect to this agreement and the program will not exceed the total commissions paid or payable to you under this agreement.
17. TERM AND TERMINATION
17.1. The term of this Agreement will begin upon our acceptance of your Program application and will end when terminated by either party. Subject to Section 1, either you or we may terminate this Agreement immediately at any time, with or without cause, by giving the other party written notice of termination. Such Termination shall be without prejudice to any other right or remedy we may have against you and notwithstanding any prior waiver or failure to take action by us or indulgence granted by us in respect of any such events whether past or continuing.
17.2. You are only eligible to earn Commissions on sales occurring during the term of this Agreement. We will endeavour to pay all undisputed payments accrued prior to the termination or expiration of this Agreement in full in Australian currency within sixty (60) days after termination or expiration of this Agreement.
17.3. All obligations of the parties hereto which expressly or by their nature survive the expiration or earlier termination of this Agreement shall continue in full force and effect notwithstanding such expiration or termination.
18. MISCELLANEOUS
18.1. You will not issue any press release or make any other public disclosure regarding this Agreement or its terms without our prior written consent as to the timing and content of that release or disclosure (which consent shall not be unreasonably withheld), or except as may be required by law in the opinion of the our counsel.
18.2. Monetary amounts are expressed in the currency indicated, or, if no currency is indicated, in Australian dollars.
18.3. This Deed is governed by the laws of the State of South Australia. The Courts of the State of South Australia have exclusive jurisdiction in connection with this Deed.
18.4. The provisions of this document (including all rights, obligations, exclusions and limitations) apply only to the extent permitted under applicable laws.
18.5. Each party shall act as an independent contractor and shall have no authority to obligate or bind the other in any respect. You agree that no joint venture, partnership, employment, or agency relationship exists between you and us as a result of this Agreement or use of the Program.
18.6. Our performance of this Agreement is subject to existing laws and legal process, and nothing contained in this Agreement is in derogation of our right to comply with governmental, court and law enforcement requests or requirements relating to your use of the Program or information provided to or gathered by us with respect to such use.
18.7. If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the Agreement shall continue in effect.
18.8. A waiver of any breach or non-performance of this document will only be effective if it is written and signed by the party giving the waiver, and only to the extent specified.
18.9. If any payment made by a party (First Party) to the other party (Second Party) under or relating to this document constitutes consideration for a taxable supply for the purposes of GST or any similar tax, the amount to be paid by the First Party for the supply will be increased so that the net amount retained by the Second Party after payment of that GST is the same as if the Second Party was not liable to pay GST in respect of that supply. This provision is subject to any other agreement regarding the payment of GST on specific supplies, and includes payments for supplies relating to the breach or termination of, and indemnities arising from, this document.
18.10. This Agreement constitutes the entire agreement between you and us with respect to the Program and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between the parties with respect to the Program.
18.11. A printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.