To be an authorized affiliate of Zippizap, you agree to abide by the terms and conditions contained in this agreement.
Please read this agreement carefully before registering and using the Zippizap service as an affiliate. By signing up for the Zippizap affiliate program, you indicate your acceptance of this agreement and its terms and conditions.
TERMS & CONDITIONS
The affiliate agreement (the “Agreement”) sets out the complete terms and conditions between Zippizap and you, regarding your application to participate as an Affiliate in the Zippizap affiliate program. This Agreement replaces all previous agreements between the Parties.
- DEFINITIONS AND INTERPRETATION
“Affiliate Tracker” means a code or codes provided by Zippizap to the Affiliate, that when recorded at point of sale, identify that Customer as having been referred to Zippizap by the Affiliate;
“Business Day” means any day (excluding Saturdays and Sundays) on which banks generally are open in Australia for the transaction of normal banking business;
“Commencement Date” means the date on which Zippizap confirms that the Affiliate’s application to join the Affiliate Program has been accepted;
“Our Affiliated Products” means products sold via Zippizap.com.au which constitute part of the affiliate program;
“Customers” means all persons who by our Affiliated Products via the Affiliate Link;
“Affiliate Link” means a hypertext link sent to you by Zippizap that links to the Zippizap website so as to enable a person to register with the Affiliate Tracker and subscribe;
“Good Industry Practice” means the exercise of that degree of skill, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced contractor acting in good faith;
“Internet Site” means your website or websites located at the web address provided to us in your application or subsequently changed from time to time and notified to Zippizap in accordance with clause 19.2;
“IPR” means any and all patents, trade marks, service marks, rights in designs (including semi-conductor topography design rights and circuit layout rights), get-up, trade, business or domain names, goodwill associated with the foregoing, e-mail address names, copyright including rights in computer software (in both source and object code) and rights in databases (in each case whether registered or not and any applications to register and rights to apply for registration of any of the foregoing), rights in inventions and web-formatting scripts (including HTML and XML scripts), know-how, trade secrets and other intellectual property rights which may now or in the future subsist in any part of the world including all rights of reversion and the right to sue for and recover damages for past infringements;
“Net Revenue” means total revenue generated by Zippizap & associated sites from subscriptions less adjustments made for any payment charges, credit card charge-backs or any other reversal of a payment, fraudulent or otherwise voided or modified transactions, bad debts, and liability to any licensing fees for data or other duty, tax or expense that may arise;
“Revenue Share Payments” means any payments made under the Revenue Share plan outlined for Schedule 1 to this agreement;
“Parties” mean the parties to this agreement;
“Zippizap” means Stores Au pty ltd a company registered in Australia under company number 135031864 with its registered address at 9 Grace st Scarborough, 6019 Western Australia
In this Agreement (except where the context requires otherwise)
(a) clause headings are included for convenience only and shall not affect the interpretation of this Agreement;
(b) the singular includes the plural and vice versa; and
(c) reference to a statute or statutory provision is a reference to that statute or statutory provision and to all orders, regulations, instruments or other subordinate legislation made under the relevant statute.
2.1 In consideration of you making use of the Affiliate Link on the Internet Site and subject to the terms and conditions of this Agreement, Zippizap grants to you a non-exclusive, non-transferable, terminable licence to use the Affiliate Link on the Internet Site solely for your internal business purposes and in accordance with such other limitations and restrictions as set out in this Agreement.
2.2 It is a condition of this Agreement that you will not do any of the following:
(a) sell, rent, lease or license the Affiliate Link other than on the Internet Site;
(b) use the Affiliate Link in a way which proves or is likely to prove detrimental to Zippizap
- AFFILIATE’S OBLIGATIONS
3.1 You warrant and undertake that:
(a) you have full capacity and authority and all necessary licences, permits and consents to enter into this Agreement and any other documents executed by you that may be associated with this Agreement;
(b) you will at all times conduct yourself with all due skill, care and diligence, including Good Industry Practice, and in accordance with your own established procedures and all applicable laws, enactments, orders, regulations and other similar instruments;
(d) all information you provided in applying to join the Affiliate Program is correct and that you will notify us promptly of any changes;
(f) you will not directly or indirectly offer any potential Customer any incentive (including, without limitation, payment of money or other benefit) to use the Affiliate Link on the Internet Site;
(g) you have obtained and will maintain in force all necessary registrations, authorisations, consents and licences to enable you to fulfil its obligations under this Agreement and that you will fully comply with, and shall continue to fully comply with, all applicable laws and regulations;
(h) the Internet Site will not contain any material which is defamatory, violent, pornographic, unlawful, threatening, obscene or racially, ethnically, or otherwise discriminatory or in breach of any third party rights and shall not intentionally or knowingly link to any such material;
(i) you will not seek to challenge the validity of Zippizap’s IPR or IPR belonging to any other company within Zippizap’s Group; and
You will not:
(i) register any domain names or register keywords, search terms or other identifiers for use in any search engine, portal, sponsored advertising service or other search or referral service that incorporate terms which are identical or similar to Zippizap ‘s trade marks (or trade marks owned by other companies in Zippizap’s Group) and you will at all times comply with such reasonable guidelines for the use of Zippizap’s trade marks as may be issued from time to time;
(ii) include metatag keywords on the Internet Site that incorporate terms which are identical or similar to Zippizap’s trade marks (or trade marks owned by other companies in Zippizap’s Group) and you will at all times comply with such reasonable guidelines for the use of Zippizap’s trade marks as may be issued from time to time;
(iii) read, intercept, record, redirect, interpret, or fill in the contents of any electronic form or other materials submitted to us by any person or entity;
(iv) in any way modify, redirect, suppress, or substitute the operation of any button, link, or other interactive feature of the Zippizap.com & associated internet sites;
(v) engage in transactions of any kind on the Zippizap.com & associated internet sites on behalf of any third party, or authorise assist, or encourage any other person or entity to do so;
(vi) take any action that could reasonably cause any end user confusion as to our relationship with you, or as to the site on which any functions or transactions are occurring;
(vii) attempt to artificially increase monies payable to you by Zippizap. We reserve the right to withhold Affiliate payments and /or suspend or close accounts where Customers referred by the Affiliate are found to be tampering with or abusing any Zippizap promotional offers whether with or without your knowledge..
(viii) cause the Zippizap.com & associated internet sites (or any page thereof) to open in a visitors browser other than as a result of the visitor clicking on a link on the Affiliates Internet Site.
3.2 You agree that you or your immediate family may use Our Affiliated Products, however such use shall not be entitled to any payment under this agreement in relation to such persons. Should you attempt to affiliate such persons, we reserve the right to terminate this agreement forthwith.
4.1 Revenue Share payments will be made in accordance with clause 4.2 below.
4.2 Except where otherwise agreed in writing you will receive the appropriate percentage of Net Revenue generated by referred Customers in a month in accordance with the scale set out in Schedule 1.
4.3 Referred Customers contribution towards Net Revenue will commence at the point where they first generate revenue on Zippizap.com and continue for the lifetime of that customer.
4.4 Zippizap will organise affiliate payments, in accordance with clause 4.6, within the industry standard 60 days. For example, affiliate commissions earned throughout September 2014 will be paid by the end of November 2014.
4.5 All payments made to you by Zippizap under this Agreement are
(a) deemed inclusive of any GST or other tax payable.
(b) will be paid in AUD as per the system default upon sign up
4.6 An Affiliate must generate a minimum of $50 in net revenue before they will be eligible for a Revenue Share commission payment. Affiliates will be paid monthly, provided the minimum net revenue level is reached. If the minimum level is not reached, commission revenue will carry into the following month(s) until which point the minimum criteria have been fulfilled.
4.7 For the avoidance of doubt if Zippizap makes a payment under this clause which later transpires not to have been due Zippizap may deduct such amounts from any future payments due to you under this agreement.
Zippizap makes no representation that any of its services will be uninterrupted or error free and, to the fullest extent permissible by law, it will not be liable for the consequences of any such interruptions or errors.
- INTELLECTUAL PROPERTY RIGHTS
6.1 All IPR in the Links belongs to Zippizap. All IPR in any third party materials shall belong to the third party owner thereof.
6.2 Nothing in this Agreement purports to grant a license, provide any warranty or offer any indemnity in respect of any data that is not owned by Zippizap. In the event that you require access to any such data, you agree that you will give us an opportunity to secure rights to the same and (if it becomes necessary to do so) you will pay the costs of securing a licence to the same from the relevant third party data owner or either party may terminate this Agreement immediately.
7.1 Either party shall immediately notify the other party if any claim or demand is made or action brought against it for any infringement or alleged infringement of any IPR which may affect the supply or use of the Links.
- DATA PROTECTION AND SECURITY
8.1 You acknowledge that the security of Zippizap’s data and its systems is fundamental to the business of Zippizap and if you become aware of a breach or potential breach of security relating to the Links, you will immediately notify Zippizap of such breach or potential breach and use your best endeavours to ensure that any potential breach does not become an actual breach and/or remedy any actual breach and its consequences.
8.2 You warrant that you will at all times comply with the provisions of the European Communities (Electronic Communications Networks and Services) (Data Protection and Privacy) Regulations 2003, the Data Protection Act 1988 and the Data Protection (Amendment) Act 2003 and any equivalent applicable legislation in the jurisdiction in which you operate.
- CONFIDENTIALITY AND ANNOUNCEMENTS
9.1 During the term of this Agreement and after termination or expiration of this Agreement, the parties will not use any Confidential Information for any purpose other than in pursuance of their rights and obligations under this Agreement nor disclose any Confidential Information to any person except with the prior written consent of the other party and shall follow Good Industry Practice to prevent the use or disclosure of the Confidential Information.
9.2 The parties may disclose any Confidential Information to their directors, other officers, employees, advisers and sub-contractors to the extent that such disclosure is reasonably necessary and in accordance with the requirements set out in clause 9.1.
9.3 On termination the parties shall (on request) deliver up to the other party or destroy all copies of Confidential Information in its possession, and (if so requested) shall use all reasonable endeavours to destroy all copies of Confidential Information stored electronically.
9.4 The parties shall together determine the content of any communications concerning the relationship between the parties. Such communications shall be issued at a time and in a manner agreed by the parties.
You will indemnify and hold harmless Zippizap.com from and against any and all losses, demands, claims, damages, costs, expenses (including, but not limited to, consequential losses and loss of profit, reasonable legal costs and expenses and GST thereon if applicable) and liabilities suffered or incurred, directly or indirectly, by Zippizap in consequence of any breach by you of your obligations under this Agreement. This clause will survive termination of this Agreement for whatever reason.
- LIMITATION OF LIABILITY
11.1 Save as provided by statute and to the fullest extent permitted by law, the following provisions set out the entire liability of Zippizap (including any liability for the acts and omissions of its employees, agents and sub-contractors) to you whether in contract, tort, statute, equity or otherwise:
(a) You acknowledge and agree that (except as expressly provided in this Agreement) the Affiliate Link are provided “AS IS” without warranties of any kind (whether express or implied);
(b) All conditions, warranties, terms and undertakings (whether express or implied), statutory or otherwise relating to the delivery, performance, quality, accuracy, uninterrupted use, fitness for purpose, occurrence or reliability of the Affiliate Link are hereby excluded to the fullest extent permitted by law; and
(c) Zippizap will not be liable to you for any losses relating to your use of the Affiliate Link including but not limited to loss of profits (whether direct or indirect), loss of contracts or goodwill, lost advertising, loss of data or any type of special, indirect, consequential or economic loss (including loss or damage suffered by you as a result of an action brought by a third party) even if such loss was reasonably foreseeable or Zippizap had been advised of the possibility of you incurring such loss.
11.2 No exclusion or limitation set out in this Agreement shall apply in the case of:
(a) fraud or fraudulent concealment;
(b) death or personal injury resulting from the negligence of any party or any of its employees, agents or sub-contractors.
11.3 The time limit within which an Affiliate must institute suit against Zippizap to recover on any claim shall be 2 years from the date the Affiliate should reasonably have become aware or becomes aware of the relevant breach that would form the subject of the claim.
11.4 This clause 11 will survive the termination of this Agreement for whatever reason.
- TERM AND TERMINATION
13.1 This Agreement shall commence on the Commencement Date and, subject to clause 13.2, shall continue until either party serves 20 Business Days written notice of an intention to terminate.
13.2 Zippziap may terminate this Agreement immediately in the event that the Affiliate
(a) breaches any of the terms of this Agreement which, in the case of a breach capable of remedy, has not been remedied within seven days of receipt of a notice from Zippizap specifying the breach and requiring its remedy;
(b) is unable to pay its debts as they fall due or make any voluntary arrangement with its creditors, become subject to an administration order, have an administrative receiver or receivers appointed in respect of the whole or any part of its assets, go into liquidation (voluntary or otherwise save for any voluntary liquidation entered into solely for the purposes of a bona fide reconstruction or amalgamation) or be made the subject of a bankruptcy order or ceases or threatens to cease carrying on its business;
(c) in Zippizap’s opinion, is in breach of the terms of any applicable advertising code of practice (Advertising Standards Authority – http://www.cap.org.uk/The-Codes/CAP-Code.aspx?q=CAP%20Code%20new_Specific%20Category%20Sections#c4).
- CONSEQUENCES OF TERMINATION
14.1 Except as set out in clause 14.3 below termination of this Agreement shall be without prejudice to any rights or obligations which shall have accrued prior to termination.
14.2 On termination of this Agreement all licences granted by Zippizap to the Affiliate pursuant to this Agreement will immediately terminate.
14.3 If Zippizap terminates this Agreement under clause 13.2 the Affiliate will not be entitled to receive any further payments pursuant to clause 4 following such termination.
- ASSIGNMENT AND SUB-CONTRACTING
15.1 You will not assign, novate, declare a trust of or otherwise dispose of this Agreement, or any part thereof, without the prior written approval of Zippizap.
15.2 Zippizap may assign or sub-contract any of its rights and obligations under this Agreement to another company within its Group at any time on giving notice to you.
- ENTIRE AGREEMENT
This Agreement constitutes the entire and only Agreement between the parties with regards to its subject matter and the parties confirm that they have not been induced to enter into this Agreement in reliance upon, nor has it been given, any warranty (including in particular any warranty as to merchantability, fitness for purpose or uninterrupted functionality), representation, statement, assurance, covenant, Agreement, undertaking, indemnity or commitment of any nature whatsoever other than as are expressly set out in this Agreement and, to the extent that it has been, it unconditionally and irrevocably waives any claims, rights or remedies which it might otherwise have had in relation thereto.
- NO PARTNERSHIP
Nothing in this Agreement and no action taken by the parties pursuant to this Agreement shall constitute, or be deemed to constitute, the parties as a partnership, association, joint venture or other co-operative entity.
- WAIVER & VARIATIONS
18.1 No breach of any provision of this Agreement shall be waived or discharged except with the express written consent of the parties.
18.2 No failure or delay by a party to exercise any of its rights under this Agreement shall operate as a waiver thereof and no single or partial exercise of any such right shall prevent any other or further exercise of that or any other right.
We may modify all or any part of this Agreement at any time. We will give you 30 days notice of any such changes. If you do not agree to the changes you may serve notice to terminate this agreement under clause 13.1 before the changes take effect and such changes will not apply for the duration of the notice period set out in clause 13.1. If you fail to terminate this Agreement and continue to participate in the Affiliate Program you will be deemed to have accepted the changes made under this clause. The latest modified date of these terms and conditions will be displayed at the bottom of this Agreement.
19.1 Notices and communications from Zippizap will be made by email to the address provided by you on your application to join the Affiliate Program.
19.2 You should send all notices and communications via the Contact Us page on the Zippizap website.
19.3 Notices and communications will be deemed received 4 hours after being sent provided that if such notice would then be deemed to have been received outside the hours of 08:30 to 17:30 (London time) it will be deemed to have been received at 08:30 on the next Business Day.
- THIRD PARTY RIGHTS
20.1 Except for any company within Zippizap’s Group no third party may enforce any rights granted to it under this Agreement.
20.2 The rights of the Parties to terminate, rescind or agree any variation, waiver or settlement under this Agreement is not subject to the consent of any person that is not a party to this Agreement.
- GOVERNING LAW AND JURISDICTION
21.1 This Agreement (and any dispute, controversy, proceedings or claim of whatever nature arising out of or in any way relating to this Agreement or its formation) shall be governed by and construed in accordance with Australian law and the parties hereby irrevocably submit to the jurisdiction of the courts of Australia.