The Company included in this Terms and Conditions agreement refers to AffilyAds B.V., with registration number 61821802 at the Dutch Chamber of Commerce and registered under Dutch Tax Law under VAT account NL854503638B01, trading as, and hereafter called “AffilyAds”, unless the context otherwise requires:
- Definitions and interpretation definitions
- The suspension or cessation of its business activities;
- Its liquidation or insolvency;
- The appointment of a receiver or trustee in respect of any of its property; or
- Any other act which shows or tends to show that it is insolvent;
- Created by AffilyAds for the advertiser in accordance with the terms of the insertion order; or
- Supplied to AffilyAds directly or indirectly by the advertiser;
- Relating to the business of AffilyAds;
- Of AffilyAds which is designated as confidential; or
- Of AffilyAds which is of a confidential or sensitive nature, which is marked or denoted as confidential or which a reasonable person to whom that information is disclosed or to whose knowledge the information comes would consider confidential,
- The creation of marketing campaigns and advertisements;
- The distribution of the advertisement including, without limitation, banners, buttons, text-links, clicks, co-registrations, pop-ups, pop-unders, e-mail, graphic files and similar online media by the AffilyAds affiliate network through:
- The websites for impressions-based ad campaigns; or
- Via e-mail based marketing, search engine marketing, website based marketing and/or other online marketing means;
- The provision of domain name and hosting services; and/or
- The provision of tracking services through third party service providers.
- 2 interpretation
- A reference to any legislation is a reference to that legislation as modified or re-enacted from time to time, and includes all regulations and statutory instruments issued under it;
- A reference to dollars or $ is to US Dollar currency; and
- If there is any inconsistency between this agreement, the insertion order or any other document or attachment incorporated by reference, to the extent of any such inconsistency, the order of priority will be:
- The insertion order;
- This agreement; and
- Any attachment or document incorporated by reference.
- Act of bankruptcy means in relation to the advertiser
Advertisement means the advertiser’s proprietary advertising materials including, without limitation, banners, buttons, text-links, clicks, co-registrations, pop-ups, pop-unders, e-mail, graphic files and similar online media advertisement for publishing and/or distribution through the AffilyAds affiliate network and:
Advertiser advertiser means you, the advertiser described in the insertion order, your successors and assigns or any agent or person acting on behalf of and with your authority;
Advertising materials means any intellectual property, artwork, copy, animations or any active urls for the applicable advertisements;
Agreement means this agreement together with the insertion order;
Confidential information means any information:
Which is disclosed to the advertiser, directly or indirectly, or otherwise comes to the knowledge of the advertiser in relation to or in connection with this agreement, whether that information is in oral, visual or written form or is recorded or embodied in any other medium;
Deliverables deliverables means the advertiser requirements specified in the insertion order for payment based on the number of clicks, impressions, leads, or acquisitions per advertisement;
Gst has the meaning given to that term in the a new tax (goods and services tax) act 1999 (cth);
Insertion order means an order which the advertiser will submit to AffilyAds for the publication of the advertisements on the AffilyAds affiliate network;
Intellectual property means copyright, all rights conferred under statute, common law or equity in relation to inventions (including patents), registered and unregistered trade marks, registered and unregistered designs, look and feel, domain names and all other rights resulting from intellectual activity in, but not limited to, the industrial, scientific, literary or artistic fields;
Intellectual property rights means any and all intellectual and commercial property rights throughout the world and shall include, without limitation, copyright, trade marks, designs, patents, knowhow and trade secrets, whether or not now existing and whether or not registered or registrable and includes applications for and any right to apply for the registration of such rights and includes all renewals and extensions;
AffilyAds affiliate network means AffilyAds’s registered third party affiliates and publishers and related technology and software;
Publish or published means the act of AffilyAds making the advertisement available to members of the public on the websites, by email or sms message and any other form of media as approved by the advertiser in the insertion order from time to time;
Services means the provisions of the following services by AffilyAds to the advertiser as specified in the insertion order:
Service fees means AffilyAds’s fees for the provision of the services, as set out in the insertion order.
Websites mean the websites operated by AffilyAds or the AffilyAds affiliate network.
Except to the extent that the context otherwise requires:
This agreement will commence on the launch date and will terminate on the campaign end date as specified on the insertion order, unless terminated earlier in accordance with clause 11.
- Insertion orders
- The advertiser must submit an insertion order to AffilyAds for any advertisement which it wishes to be published with the AffilyAds affiliate network pursuant to this agreement.
- Each insertion order submitted by the advertiser must specify the following:
- The types of deliverables;
- The campaign budget pursuant to the insertion order;
- The launch and end date of the insertion order;
- Reporting requirements;
- Any special advertising delivery scheduling and/or advertising placement requirements; and
- Any specific privacy obligations relating to the ownership of the data collected.
- AffilyAds will supply the following information in relation to the insertion order at its sole discretion:
- The rates and costs for such deliverables; and
- The cancellation rates.
- An insertion order is deemed to have been accepted upon the earlier of:
- Written acceptance by AffilyAds; or
- The day that the advertisement is first published.
- Any request for the variation of an insertion order must be submitted to AffilyAds in writing, and may be approved by AffilyAds in its sole discretion.
- In consideration of the services provided by AffilyAds, the advertiser will pay:
- AffilyAds at the rates stipulated by AffilyAds in the applicable insertion order, including any payments made to third party service providers by AffilyAds on behalf of the advertiser; and
- The AffilyAds affiliate network commissions depending on the number of valid clicks, impressions, sales/actions, applications and leads, and/or such other compensable activities generated on behalf of advertiser as set out in the insertion order from time to time.
- A tax invoice for services will be issued by AffilyAds to the advertiser twice per month, and will become payable within fourteen (14) days of the date of that tax invoice. Time for payment of the fee shall be of the essence.
- The advertiser acknowledges that the service fees shall be exclusive of any gst that may be charged by AffilyAds to the advertiser, and therefore, AffilyAds will be entitled to add on gst.
- If stipulated on the insertion order, the advertiser agrees to execute a form permitting AffilyAds to make direct debits from the advertiser’s nominated credit card or bank account for the payment of the service fees.
- Interest on overdue tax invoices shall accrue daily from the date when payment becomes due, until the date of payment at a rate of ten percent (10%) per annum (and at AffilyAds’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment. The advertiser agrees that the interest charges and the additional amounts represent a genuine pre-estimate of AffilyAds’s losses, damages, costs and expenses in respect of the advertiser failing to pay overdue invoices.
- Advertiser’s obligations
- The advertiser agrees to register itself on the websites on the date of this agreement.
- The advertiser acknowledges and agrees that:
- It will create a unique, password-protected account;
- It will be responsible for safeguarding and maintaining the confidentiality of its account and associated password;
- It will be responsible for safeguarding and maintaining the confidentiality of its account and associated password;
- It will remain fully and solely responsibility for any and all actions taken under the account
- It must immediately notify AffilyAds affiliate network of any unauthorized use of its account;
- It is responsible for keeping its account information current, complete and accurate; and
- AffilyAds affiliate network will have no responsibility or liability, directly or indirectly, for failure to deliver notices as a result of inaccurate account information.
- The advertiser acknowledges that from time to time AffilyAds or the AffilyAds affiliate network may engage third party service providers to perform tracking services. The advertiser agrees that it will not knowingly modify, circumvent, impair, disable or otherwise interfere with any tracking codes required to provide the services.
- Submission of advertisement
- On or before the start date specified on the insertion order, the advertiser must submit to AffilyAds the following (where applicable):
- The advertisement and all advertising materials; or
- All advertising materials required by AffilyAds to provide the service of creating marketing campaigns and advertisements where stipulated in the insertion order.
- If AffilyAds has not received the materials required to perform the services as required by clause 6(a) by the applicable insertion order start date, AffilyAds will charge the advertiser on and from the insertion order start date on a pro rata basis based on the full insertion order (excluding portions consisting of performance-based, non-guaranteed media placements) for each full day the materials as outlined in clause 6(a) are not received.
- The advertiser warrants that the advertisements:
- Are not false or misleading;
- Do not breach the competition and consumer act 2010 (cth) and/or any other applicable law;
- Comply with all applicable foreign, federal, state or local laws, rules, regulations and ordinances;
- Do not breach any third party intellectual property rights;
- Do not breach any other contractual or proprietary rights of third parties;
- Do not contain any “worm,” “virus” or other device that could impair or injure any person or entity; and
- Are not harmful, obscene, pornographic, defamatory, racist, sexist, threatening, violent, offensive, abusive, vulgar, profane, indecent, unlawful, harassing, or otherwise objectionable to AffilyAds.
- AffilyAds may, in its sole discretion, reject for publication or delete any advertisements on the website which do not comply with clause 6(c).
- AffilyAds will not amend, edit or modify the advertisements (including resizing the advertisement) unless it is stipulated in the insertion order, or it has received the prior written approval from the advertiser.
- Placement of advertisement
- The advertiser may request particular place(s) where advertisements may appear and/or are to distributed as set out in the insertion order.
- Notwithstanding clause 7(a), the AffilyAds affiliate network will retain absolute editorial control over the positioning, placement, frequency and other editorial decisions related to the advertisement in its sole discretion.
- The advertiser agrees that AffilyAds is not liable for the failure of AffilyAds or the AffilyAds affiliate network to comply with the terms of the insertion order.
- AffilyAds must provide written confirmation to the advertiser that the advertisement has been published.
- AffilyAds may provide reports to the advertiser relating to the number of impressions and clicks, costs and any other matters specified in the insertion order in its sole discretion.
- Intellectual property
- Each party acknowledges that the other party’s intellectual property (including intellectual property which is licensed to either party) is extremely important and valuable and is the property of the owning party.
- Each party acknowledges that it has no right, title or interest in or to the intellectual property of the other party and:
- The advertiser is the sole owner of any and all intellectual property rights associated with the advertisement and advertising materials, where provided by the advertiser to AffilyAds;
- AffilyAds is the sole owner of any and all intellectual property rights associated with the advertisement and advertising materials where created by AffilyAds in the provision of the services;
- AffilyAds is the sole owner of any and all intellectual property rights associated with the advertisements created by AffilyAds, other than advertiser’s trademarks, logos, copyrights and other pre-existing advertiser intellectual property.
- The advertiser must not use the intellectual property of AffilyAds or the AffilyAds affiliate network without its prior written consent.
- Confidential information
- The advertiser agrees to keep the confidential information of AffilyAds confidential.
- The advertiser must:
- Not disclose any confidential information to anyone else except as permitted under this agreement;
- Limit the disclosure of the confidential information within its own organization or to those of its officers and employees to whom such disclosure is strictly necessary for the purposes of this agreement; and
- Not use the name of AffilyAds in publicity releases, advertising or promotion of the party unless the other party has given its written consent (which shall not be unreasonably withheld).
- The obligations of confidentiality in clause 10(b) will not apply to information which:
- Is generally available in the public domain except where it is as a result of a breach of this agreement by the advertiser;
- Was known prior to the disclosure of the information by the advertiser; or
- Is required to be disclosed by an applicable law or court order.
- The obligations imposed under this clause 10 will survive the termination of this agreement.
- Without prejudice to any other rights it may have, AffilyAds may terminate this agreement by notice in writing to the advertiser in the following circumstances:
- The advertiser is in breach of any of the terms of this agreement and fails to remedy the breach within 7 days after the date on which written notice of the breach has been served on the other party; and
- If the advertiser commits an act of bankruptcy.
- In addition to any other rights which AffilyAds may have, if AffilyAds or the AffilyAds affiliate network has published an advertisement or commenced an insertion order at or prior to termination of this agreement, the advertiser must pay the cancellation rates as specified in the insertion order.
- AffilyAds warrants to the advertiser that:
- It has full power, capacity and authority to enter into and perform its obligations under this agreement; and
- Neither the signing of this agreement nor the performance of its obligations under this agreement will cause it to be in breach of any other agreement.
- To the full extent permitted by law, AffilyAds excludes all liability in respect of loss of data, interruption of business or any consequential or incidental damages.
- To the full extent permitted by the Dutch consumer law contained in schedule 2 of competition and consumer act 2010 (cth), AffilyAds excludes all representations, warranties or terms (whether express or implied) other than those expressly set out in this agreement.
- AffilyAds’s total aggregate liability for all claims relating to this agreement is limited to ten per cent (10%) of the fees paid by the advertiser in the calendar month immediately prior to the date of the claim.
- Exclusion of liability
- The advertiser acknowledges and agrees that AffilyAds is not liable for any act or omission of the AffilyAds affiliate network.
- Despite any other term and to the maximum extent permitted by law, AffilyAds and the AffilyAds affiliate network will not bear any liability to the advertiser for direct or indirect consequential loss including loss of profits, loss of business opportunities or loss of goodwill howsoever arising (including in negligence).
- The advertiser acknowledges and agrees that it is solely liable for the advertisement and all advertising materials where supplied to AffilyAds.
- If the services supplied under this agreement are supplied to the advertiser as a ‘consumer’ of services within the meaning of that term in the Dutch consumer law, AffilyAds limits its liability in respect of all claims, at its option, to
- The supply of the services again; or
- The payment of the cost of having the services supplied again.
- The advertiser agrees to indemnify and keep indemnified AffilyAds from and against any damages, liabilities, claims, losses or expenses suffered or incurred, whether directly or indirectly, by AffilyAds and/or the AffilyAds affiliate network as a result of any breach of this agreement or otherwise in connection with the publishing of the advertisement or non-publishing of the advertisement, as the case may be.
- The advertiser will further indemnify and keep indemnified AffilyAds and the AffilyAds affiliate network from and against any damages, liabilities, claims, losses or expenses suffered or incurred, whether directly or indirectly, by AffilyAds as a result of:
- Any claim against AffilyAds or the AffilyAds affiliate network in relation to the content of the advertisement or the advertising materials;
- Any third party allegation of ownership in an intellectual property right;
- Any breach of the warranties contained in clause 6(c); and
- Any allegation that an agency dealing with AffilyAds does not have authority to act as agent for the advertiser.
- Non circumvention
- The advertiser recognizes that AffilyAds has proprietary relationships with the AffilyAds affiliate network and agrees not to circumvent this relationship, or otherwise solicit, purchase, contract for or obtain services similar to the services performed by AffilyAds pursuant to this agreement from any person or entity in the AffilyAds affiliate network during the term of the agreement and for six (6) months following termination or expiration of the agreement.
- The advertiser agrees that monetary damages for its breach, or threatened breach, of this section 15 will not be adequate and that AffilyAds shall be entitled to:
- Injunctive relief;
- Liquidated damages from advertiser in the amount equal to one hundred percent (100%) of the fees paid by advertiser to the member of the AffilyAds affiliate network as applicable, for the prior twelve (12) month period; and
- Any and all other remedies available to AffilyAds at law or in equity.
- Notices must be forwarded to the other party by prepaid post or registered mail to the addresses set out in the insertion order.
- All notices served under this agreement will be considered to have been received three (3) business days after posting, unless sent by facsimile in which case the notice shall be deemed to have been received on the date shown on the sender’s transmission report.
- This agreement does not create, and must not be construed to create, any express or implied relationship between the parties of any partnership, joint venture, employment, agency or trust. Neither party has the authority to bind the other party in any way.
- Neither party may assign its rights or obligations under this agreement without the prior written consent of the other party.
- AffilyAds reserves the right to amend these terms in its sole discretion. Where these terms are varied by AffilyAds, the amended terms will be uploaded to AffilyAds’s website and the amended terms will then supersede the prior version.
- No waiver by either party of any provisions of this agreement will amount to a continuing waiver of any other provision of this agreement unless made in writing and signed by the party against whom the waiver would have been enforced.
- If any part of this agreement is held to be invalid or unenforceable in any way, the remaining provisions will not be affected and remain in full force for the term of this agreement.
- Entire agreement
- These terms constitute the entire agreement between the parties in respect of its subject matter, and supersedes all prior agreements, representations, negotiations and correspondence.
- Governing law
- These terms will be governed by the laws of new south wales and the parties irrevocably submit to the non-exclusive jurisdiction of the courts in that state.