This Agreement is entered into between Richview Pty Ltd as trustee for PVC Trust (ABN 57 632 799 216) (Party 1) and the individual or entity listed in the Commercial Details (Party 2), together the Parties and each a Party.
BACKGROUND
The Parties have agreed to enter into an affiliate relationship whereby you will provide Promotional Services to us in order to refer us New Users, in exchange for the Commission, on the terms and conditions of this Agreement.
1 Acceptance
1.1 You accept this Agreement by the earlier of:
(a) signing and returning this Agreement to us;
(b) confirming by email that you accept this Agreement; and
(c) confirming that you accept this Agreement via the platforms or applications through which we provide this Agreement to you, including our Site.
2 New Users
2.1 During the Term of this Agreement, you agree to refer New Users to us in accordance with the Affiliate Process.
2.2 Affiliate Process: We will provide you with a unique tracking link to embed into Our Advertisements and Your Advertisements that you display on your Platform. When a user clicks on the link, they will be redirected to our Site and we will be notified. We will use this tracking link to calculate any Commission payable to you.
2.3 You agree that nothing in this Agreement creates an exclusive relationship between you and us, and we may, at any time, engage other parties to provide Promotional Services and refer New Users to us.
2.4 If you become aware of any actual or potential conflict of interest between this Agreement and any other work you are undertaking, you agree to inform us in writing and take reasonable steps to resolve the conflict.
3 Promotional Services
3.1 During the Term, you agree to:
(a) if you are a Sub-affiliate, only provide the Promotional Services within the Territory of your Affiliate Manager;
(b) if you are a Affiliate Manager, only provide the Promotional Services within the Territory;
(c) provide the Promotional Services in a professional and diligent manner using due care and skill;
(d) in providing the Promotional Services, not engage in any unfair, deceptive or unethical business practices;
(e) comply with all reasonable instructions, guidelines and procedures made available to you by us in relation to the Promotional Services and the SaaS Services;
(f) not do anything that may adversely affect our goodwill, brand or reputation (or that of the SaaS Services); and
(g) immediately inform us of any issues, concerns or matters which may (directly or indirectly) adversely affect our reputation or brand or that of the SaaS Services (including any negative response to any advertisements of the SaaS Services).
3.2 Without limiting and in addition to any other obligation under this Agreement, in the performance of the Promotional Services, you agree:
(a) to only use and distribute the most recent versions of Our Advertisements that we provide to you; and
(b) that you may develop your own advertisements or promotional material to promote the Game (Your Advertisements), provided that the material is consistent, and complies with any material provided by us, and provided that we have given prior written consent to the use of the promotional materials.
3.3 You agree and warrant not to make or offer any warranty or guarantee, or make any representation, in relation to the SaaS Services or us, other than those warranties, guarantees or representations expressly provided in Our Advertisements or any other material provided to you by us.
3.4 In performing the Promotional Services, you agree to acknowledge us as the owner of the SaaS Services and the owner of any Intellectual Property Rights in the SaaS Services, and you will not represent yourself as the owner of any Intellectual Property Rights in the SaaS Services.
4 Affiliate Managers
4.1 If we accept you as a Affiliate Manager in the Commercial Details, all your Sub-Affiliates will be linked to your affiliate account.
4.2 You will earn Commission on Subscription Fees paid by New Users referred by your Sub-affiliates in accordance with the Commission clause below.
4.3 Any Sub-affiliate will be required to accept the terms and conditions of this Agreement and if you are a Affiliate Manager, you will be liable to us for the performance of such Sub-affiliate’s obligations under this Agreement.
4.4 We have no responsibility for any direct negotiations including disputes that occur between a Affiliate Manager and a Sub-affiliate.
5 Commission
5.1 If a New User is accepted by us, and that New User enters into an agreement with us for the supply of our SaaS Services, we agree to pay you the Commission and any other amount payable in accordance with this clause provided that we receive payment of the relevant Subscription Fee from the New User for the SaaS Services.
5.2 Promptly following:
(a) the end of each month during the Term; and
(b) expiry or termination of this Agreement,
we agree to provide you with a report, setting out the Commission payable by us to you (including, how this is calculated), for the immediately preceding period (Report).
5.3 Following receipt of our Report, you must issue us with a valid tax invoice requesting payment of the Commission as set out in the Report within 30 days of receiving the Report. Where you do not provide us with an invoice in accordance with this clause 5.3, we will not be liable to pay you any Commission the subject of such invoice.
5.4 We will pay the Commission for New Users within 14 days from the date the invoice was received by us from you.
5.5 If we (acting reasonably) assess that the Promotional Services the subject of an invoice, or the relevant invoice, have not been provided in accordance with this Agreement, and we notify you in writing of our concerns, the relevant invoice will not fall due and payable until those concerns are resolved, or as otherwise agreed between the Parties.
5.6 Any payment made by us in respect of any invoice is made on account and is not taken to constitute any approval of the Promotional Services provided.
5.7 You agree that we may set-off or deduct from any monies payable to you under this Agreement, any amounts which are payable by you to us (whether under this Agreement or otherwise).
5.8 If a third party makes a claim for commission in respect of a New User, then we may apportion the Commission under this Agreement among the claimants at our sole discretion. We will make reasonable efforts to consult with all relevant parties regarding any apportionment, but any decision we make regarding the apportionment is final.
6 Confidentiality and Privacy
6.1 Subject to clause 6.2, a Receiving Party agrees to (and agrees to ensure that its Personnel do):
(a) keep confidential; and
(b) not use or permit any unauthorised use of,
all Confidential Information of a Disclosing Party.
6.2 Clause 6.1 does not apply where:
(a) the information is in, or comes into, the public domain (other than by a breach of this clause 6 or any other duty of confidence owed by the Receiving Party);
(b) the Receiving Party has the prior written consent of the Disclosing Party;
(c) the disclosure is required by law;
(d) the disclosure is required in order for the Receiving Party to comply with its obligations under this Agreement; or
(e) the disclosure is to a professional adviser in order to obtain advice in relation to matters arising in connection with this Agreement and provided that the Receiving Party ensures the adviser complies with the terms of this clause 6.1.
6.3 You acknowledge and agree that monetary damages may not be an adequate remedy for a breach of clause 6.1. We are entitled to seek an injunction, or any other remedy available at law or in equity, at our discretion, to protect ourselves from a breach (or continuing breach) of this clause 6.1.
6.4 You agree to comply with the legal requirements of the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) (as if you were an “APP entity” as defined in the Privacy Act 1988 (Cth)) and any other applicable legislation or privacy guidelines that may apply to you.
6.5 This clause 6 will survive the termination or expiry of this Agreement.
7 Intellectual Property
7.1 As between the Parties:
(a) we own all Intellectual Property Rights in Our Materials;
(b) you own all Intellectual Property Rights in Your Materials, and
nothing in this Agreement constitutes a transfer or assignment of any Intellectual Property Rights in Our Materials or Your Materials.
7.2 As between the Parties, ownership of all Intellectual Property Rights in any New Materials or Improvements will at all times vest, or remain vested, in us upon creation. To the extent that ownership of such Intellectual Property Rights in any New Materials and/or Improvements do not automatically vest in us, you agree to do all things necessary or desirable to assure our title to such rights.
7.3 We grant you a non-exclusive, revocable, worldwide, non-sublicensable and non-transferable right and licence, for the duration of the Term, to use Our Materials that we provide to you, and the New Materials and Improvements, solely for the purposes for which they were developed and solely for your performance of your obligations under this Agreement, as contemplated by this Agreement.
7.4 If you or any of your Personnel have any Moral Rights in any material provided, used or prepared in connection with this Agreement, you agree to (and you agree to ensure that your Personnel) consent to our use or infringement of those Moral Rights.
7.5 In the use of any Intellectual Property Rights in connection with this Agreement, you agree not to (and you agree to ensure that your Personnel do not) commit any Intellectual Property Breach.
7.6 This clause 7 will survive termination or expiry of this Agreement.
8 Warranties and representations
8.1 You represent, warrant and agree that:
(a) you have not relied upon any warranty, representation, statement or documentation made or provided by or on behalf of us, except as expressly provided in this Agreement;
(b) you have full legal capacity, right, authority and power to enter into this Agreement, to perform your obligations under this Agreement, and to carry on your business;
(c) this Agreement constitutes legal, valid and binding obligations, enforceable in accordance with its terms;
(d) the execution and performance by you of this Agreement and each transaction contemplated by it does not conflict with any law, order, judgment, rule or regulation applicable to you or any instrument binding on you;
(e) you will not display material on your Platform or in connection with the SaaS Services that uses obscene or foul language, is inappropriate, offensive or illegal or could be considered intolerant of a person’s race, culture, appearance, gender, sexual preference, religion or age. Where we become aware that you have displayed such material on your Platform, we may request that you remove such material and a failure to remove such material will be considered a material breach of this Agreement;
(f) you will conduct business in a manner that reflects favourably on us and the SaaS Services;
(g) you will make no false or misleading representations with respect to us and the SaaS Services;
(h) in marketing the SaaS Services, you will act with due care and skill and not engage in any unfair, deceptive or unethical business practice, for example, you will not generate New Users through bots, fraud or any illegal activity. Where you are deemed by us, in our reasonable opinion, to have breached this clause 8.1(h), you will not be entitled any Commission for such New Users;
(i) you will have no right to enter into any contracts, instruments or commitments in the name of, or on behalf of, us or to bind us in any respect whatsoever;
(j) you will comply with any relevant laws, including any laws requiring you to disclose any Commission that you may obtain from us, to a New User or any potential new user;
(k) you will comply with any reasonable directions given to you by us from time to time;
(l) you are a registered business and if applicable, have a valid unique business identifier number (an ABN in Australia, or similar overseas) which has been advised to us; and
(m) if applicable, you are registered for GST purposes, or for any other value-added tax applicable to the supply of goods and services in the location you are providing the Promotional Services from.
8.2 This clause 8 will survive the termination or expiry of this Agreement.
9 Liability
9.1 Despite anything to the contrary, to the maximum extent permitted by law we make no guarantees or warranties in respect of the SaaS Services.
9.2 Despite anything to the contrary, to the maximum extent permitted by law, you are liable for, and agree to indemnify us and hold us harmless in respect of, any Liability that we may suffer, incur or otherwise become liable for, arising from or in connection with:
(a) any breach by you (or any of your Personnel) of this Agreement;
(b) you using the incorrect tracking link or any issue that arises as a result of incomplete tracking;
(c) Your Advertisements; and
(d) any third party claim against us, as a result of your performance under this Agreement,
but this indemnity will be reduced proportionately to the extent the Liability was caused or contributed to by the acts or omissions of us (or any of our Personnel).
9.3 This clause 9 will survive the termination or expiry of this Agreement.
10. GST
10.1 If GST or any other value-added tax applicable to the supply of goods and services in the location you are providing the Promotional Services is payable on any supply made under this Agreement, the recipient of the supply must pay an amount equal to the GST payable on the supply. That amount must be paid at the same time that the consideration is to be provided under this Agreement and must be paid in addition to the consideration expressed elsewhere in this Agreement, unless it is expressed to be inclusive of GST (or equivalent tax). The recipient is not required to pay any GST (or equivalent tax) until the supplier issues a tax invoice for the supply.
10.2 If an adjustment event arises in respect of any supply made under this Agreement, a corresponding adjustment must be made between the supplier and the recipient in respect of any amount paid by the recipient under this clause, an adjustment note issued if required, and any payments to give effect to the adjustment must be made.
10.3 If the recipient is required under this Agreement to pay for or reimburse an expense or outgoing of the supplier, or is required to make a payment under an indemnity in respect of an expense or outgoing of the supplier, the amount to be paid by the recipient is to be reduced by the amount of any input tax credit in respect of that expense or outgoing that the supplier is entitled to.
10.4 The terms “adjustment event”, “consideration”, “GST”, “input tax credit”, “recipient”, “supplier”, “supply”, “taxable supply” and “tax invoice” each has the meaning which it is given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
11. Term and Termination
11.1 This Agreement will commence on the Effective Date and continue for the Term.
11.2 Either Party may terminate this Agreement at any time by giving 60 days notice in writing to the other Party.
11.3 This Agreement will terminate immediately upon written notice by:
(a) us, if you (or any of your Personnel) breach any provision of this Agreement, and that breach has not been remedied within 5 Business Days of being notified by us; or
(b) you, if we are in breach of a material term of this Agreement, and that breach has not been remedied within 5 Business Days of being notified by you.
11.4 Upon expiry or termination of this Agreement, you agree to (and you agree to ensure that your Personnel):
(a) immediately cease providing the Promotional Services;
(b) stop representing that you are authorised to promote, market or otherwise advertise the SaaS Services or our business;
(c) immediately return to us all property, including Confidential Information and Intellectual Property, belonging to us or our Personnel, in your (or your Personnel’s) possession;
(d) not use any Intellectual Property or Confidential Information belonging to us or our Personnel; and
(e) pay any amount owed under this Agreement to us as a debt due and immediately payable.
11.5 Upon expiry or termination of this Agreement we will continue to pay you the Commission for any New User for which you are directly responsible for soliciting and referring to us through the Affiliate Process before the termination or expiry of this Agreement for a period of up to five years. For the avoidance of doubt, you will only be entitled to Commission for a New User that clicked on the tracking link prior to termination or expiry of this Agreement.
11.6 This clause 9 will survive the termination or expiry of this Agreement.
11.7 Termination of this Agreement will not affect any rights or liabilities which a Party has accrued under it.
12. General
12.1 Amendment: This Agreement may only be amended by written instrument executed by the Parties.
12.2 Assignment: A Party agrees not to assign or deal with the whole or any part of its rights or obligations under this Agreement without the prior written consent of the other Party.
12.3 Counterparts: This Agreement may be executed in any number of counterparts that together will form one instrument.
12.4 Disputes: If any dispute or claim (including any question regarding its existence, validity or termination) arises out of or in connection with this Agreement (Dispute), either Party may issue a notice to the other Party outlining the dispute or claim (Notice of Dispute). Within 14 days of a Notice of Dispute, the Parties must meet in good faith to resolve the Dispute by negotiation or such other means as they mutually agree. If the Parties cannot agree how to resolve the Dispute at that initial meeting, either Party may refer the matter to a mediator. If the Parties cannot agree on who the mediator should be, either Party may ask the Law Society of New South Wales to appoint a mediator. The mediator will decide the time, place and rules for mediation. The Parties agree to attend the mediation in good faith, to seek to resolve the Dispute. The costs of the mediation will be shared equally between the Parties.
12.5 Entire agreement: This Agreement contains the entire understanding between the Parties, and supersedes all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and agreements, in respect of its subject matter.
12.6 Further assurance: You agree to promptly do all things and execute all further instruments necessary to give full force and effect to this Agreement and their obligations under it.
12.7 Governing law: This Agreement is governed by the laws of New South Wales. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.
12.8 Notices: Any notice given under this Agreement must be in writing addressed to the relevant address last notified by the recipient to the Parties. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.
12.9 Online execution: This Agreement may be executed by means of such third party online document execution service as we nominate subject to such execution being in accordance with the applicable terms and conditions of that document execution service.
12.10 Relationship of Parties: This Agreement is not intended to create a partnership, joint venture, employment or agency relationship between the Parties.
12.11 Severance: If a provision of this Agreement is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from this Agreement without affecting the validity or enforceability of the remainder of that provision or the other provisions in this Agreement.
13. Interpretation
In this Agreement, unless the context otherwise requires:
(a) a reference to this Agreement or any other document includes the document, all schedules and all annexures as novated, amended, supplemented, varied or replaced from time to time;
(b) a reference to any legislation or law includes subordinate legislation or law and all amendments, consolidations, replacements or re-enactments from time to time;
(c) a reference to a natural person includes a body corporate, partnership, joint venture, association, government or statutory body or authority or other legal entity and vice versa;
(d) no clause will be interpreted to the disadvantage of a Party merely because that Party drafted the clause or would otherwise benefit from it;
(e) a reference to a party (including a Party) to a document includes that party’s executors, administrators, successors, permitted assigns and persons substituted by novation from time to time;
(f) a reference to a covenant, obligation or agreement of two or more persons binds or benefits them jointly and severally;
(g) a reference to time is to local time in New South Wales; and
(h) a reference to $ or dollars refers to the currency of Australia from time to time.
14 Definitions
In this Agreement, unless the context otherwise requires, capitalised terms have the meaning given to them in the Commercial Details, and:
Affiliates means Affiliate Managers and Sub-affiliates.
Affiliate Process takes the meaning given to it in clause 2.2.
Agreed Percentage means the percentage set out in your affiliate account on our Site or the percentage set out in the Commercial Details.
Agreement means this Affiliate Agreement and all schedules, annexures and attachments included, or referred to, in this Affiliate Agreement.
Business Day means a day on which banks are open for general banking business in New South Wales, excluding Saturdays, Sundays and public holidays.
Commercial Details means, if applicable, the commercial details attached to this Agreement.
Commission means:
(a) for all Affiliates, in respect to each New User the Agreed Percentage of the Subscription Fees paid to us in connection with the SaaS Services by a New User; and
(b) for Affiliate Managers, in addition, in respect of each Sub-affiliate’s New Users, the Affiliate Manager Percentage of the of the Subscription Fees paid to us in connection with the SaaS Services by a New User.
Commission includes GST or any other value-added tax applicable to the supply of goods and services in the location you are providing the Promotional Services.
Confidential Information includes information which:
(a) is disclosed to the Receiving Party in connection with this Agreement at any time;
(b) is prepared or produced under or in connection with this Agreement at any time;
(c) relates to the Disclosing Party’s business, assets or affairs; or
(d) relates to the subject matter of, the terms of and/or any transactions contemplated by this Agreement,
whether or not such information or documentation is reduced to a tangible form or marked in writing as “confidential”, and howsoever the Receiving Party receives that information.
Disclosing Party means the party disclosing Confidential Information to the Receiving Party.
Dispute has the meaning given in clause 10.4.
Effective Date means the date on which this Agreement is accepted in accordance with its terms.
Existing User means an individual or entity that is:
(a) that is an existing user of the SaaS Services;
(b) that already has an account with us independently of any introduction by you under this Agreement; or
(c) that has a contractual relationship or is in ongoing negotiations with us in relation to the SaaS Services.
Improvements means any development, modification, adaptation or improvement of Our Materials or any New Materials made by or on behalf of either Party (or any of their respective Personnel), or in respect of which
Intellectual Property Rights are acquired by, either Party during the Term.
Intellectual Property means any copyright, registered or unregistered designs or trade marks, domain names; know-how, inventions, processes, trade secrets or Confidential Information; or circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing.
Intellectual Property Breach means any breach by you (or any of your Personnel) of any of our Intellectual Property Rights or of any third party rights (including any Intellectual Property Rights of third parties), including, but not limited, to you (or your Personnel):
(c) copying, altering, enhancing, adapting or modifying any of our Intellectual Property;
(d) creating derivative works from our Intellectual Property;
(e) providing or disclosing our Intellectual Property to, or allowing our Intellectual Property to be used by, any third party;
(f) assigning or transferring any of our Intellectual Property Rights or granting sublicenses of any of our Intellectual Property Rights, except as expressly permitted in this Agreement;
(g) reverse engineering or decompiling any of our Intellectual Property Rights, except where permitted by law; or
(h) using or exploiting our Intellectual Property for purposes other than as expressly stated in this Agreement (including, without limitation, using our Intellectual Property for commercial purposes or on-selling our Intellectual Property to third parties).
Intellectual Property Rights means, for the duration of the rights in any part of the world, any industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property.
Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or proceeding (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to this Agreement or otherwise.
Affiliate Manager means an affiliate who we have accepted as a Affiliate Manager who recruits new affiliate partners for us.
Moral Rights has the meaning given in the Copyright Act 1968 (Cth).
New Materials means all work, models, processes, technologies, strategies, materials, information, documentation and services (including Intellectual Property) developed, adapted, modified or created by or on behalf of either Party or their respective Personnel in connection with this Agreement, but excluding Our Materials and Your Materials.
New User means a bona fide client or customer for the SaaS Services, for which you are directly responsible for soliciting and referring to us through the Affiliate Process, that entered into an agreement with us for the provision of SaaS Services within 90 days of clicking the tracking link on your Platform, and excludes any Existing User.
Our Advertisements means any advertisement or promotional material that we provide to you for the purpose of you providing the Promotional Services.
Our Materials means Our Advertisements and all work, models, processes, technologies, strategies, materials, information, documentation and services (including Intellectual Property), owned, licensed or developed by or on behalf of us or our Personnel.
Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents.
Platform means on your website and via other channels or addresses, including your social media or YouTube channel.
Promotional Services means:
(a) displaying Our Advertisements that we provide to you from time to time and/or Your Advertisements on your Platform to promote the SaaS Services;
(b) taking reasonable steps to promote the SaaS Services on your Platform; and
(c) embedding the unique tracking link we provide to you as part of the Affiliate Process to track the users that sign up to the SaaS Services as a result of clicking on an advertisement on your Platform.
Receiving Party means the party receiving Confidential Information from the Disclosing Party.
Report has the meaning given in clause 5.2.
SaaS Services means our software as a service called Promo Video Creator.
Site means promovideocreator.com and my.promovideocreator.com.
Sub-affiliate means an individual or entity who, after being referred to us by a Affiliate Manager via a sub-affiliate tracking link, enters into this Agreement. The referring Affiliate Manager earns Commission from the Sub-affiliates’ New Users.
Subscription Fee means the subscription fees actually paid by a New User to us to access and use the SaaS Services and excludes:
(a) any amounts for the provision by us of any goods or services to the New User other than the SaaS Services (such as, without limitation, amounts for hardware, consulting services, training and support services or implementation services);
(b) any GST, set up fee, fees for optional extras or other fees associated with the SaaS Services; and
(c) any amounts that we refund to a New User.
Term means the period commencing on the Effective Date and ending on the date this Agreement is terminated in accordance with its terms.
Territory is as defined in the Commercial Details for a Affiliate Manager and as set out in the affiliate account for a Sub-affiliate.
Your Advertisements means any advertisement or promotional material that you develop for the purpose of providing the Promotional Services, and excludes Our Materials and any Improvements.
Your Materials means Your Advertisements and all work, models, processes, technologies, strategies, materials, information, documentation and services (including Intellectual Property), owned, licensed or developed by or on behalf of Party 2 Personnel before the Effective Date and/or developed by or on behalf of you or our Personnel independently of this Agreement.
