By clicking on the box provided you have accepted and agreed to these terms and conditions of Universal Source Pty Ltd - hereto referred to as Tri-Vortex.
TERMS AND CONDITIONS
1. DEFINITIONS AND INTERPRETATION
In this Agreement the following definitions apply:
(a) 'Commencement Date' means the date Tri-Vortex accepts your affiliate application.
(b) 'Content' means all the pages on the Tri-Vortex Websites and offline collateral.
(c) AFFILIATE or YOU means the organisation who has identified itself to Tri-Vortex as being the contracting party to this agreement.
(d) 'AFFILIATE Frames' means the AFFILIATE supplied web page frames that are used to brand the web pages on the Tri-Vortex Websites.
(e) 'AFFILIATE Website' means the website located at the affiliate URL as notified to Tri-Vortex.
(f) 'Tri-Vortex Link' means the interface internet link between AFFILIATE's Website and Tri-Vortex Website that has been created by Tri-Vortex.
(g) 'Tri-Vortex Website' means any of it's Website operating currently or from time to time.
Tri-Vortex LINK
2. Tri-Vortex, at its own cost, has developed an internet Tri-Vortex Link to interface between AFFILIATE's Website and Tri-Vortex's Website.
3. AFFILIATE Website users will be able to view the Content via the Tri-Vortex Link from the AFFILIATE Website. Users who wish to purchase Activities will do so from the Tri-Vortex Website. Customers will be bound by Tri-Vortex's Terms and Conditions and its Privacy Policy. All purchases will be subject to the customer's acceptance of Tri-Vortex's Terms and Conditions as displayed on the Tri-Vortex Website.
4. Customers who purchase products and services under this Agreement shall be deemed to be customers of Tri-Vortex.
5. Tri-Vortex owns the Tri-Vortex Link and has supplied it to AFFILIATE for AFFILIATE's Website under the terms of this Agreement.
6. Tri-Vortex grants AFFILIATE a non-exclusive, revocable right to use the Tri-Vortex graphic image, logos, text and such other images for which Tri-Vortex grants express permission, solely for the purpose of this Agreement. AFFILIATE will not modify the graphic images, logos or text in any way.
LIMITED LICENCE
7. Tri-Vortex grants you a nonexclusive, revocable right to use Tri-Vortex owned graphic images and text and such other images for which Tri-Vortex grants express permission, solely for the purpose of identifying your site as an Affiliate program participant and to assist in generating sales. You may not modify any graphic image or text, or any other of these images, in any way. Tri-Vortex reserves all rights in the graphic image and text, any other images, the Tri-Vortex trade names and trademarks, and all other intellectual property rights. You agree to follow the guidelines set out in this paragraph, as those guidelines may change from time to time. Tri-Vortex may revoke your license at any time by giving you written notice.
POLICIES AND PRICING
8. Customers who buy content through this Affiliate program will be deemed to be customers of Tri-Vortex. Accordingly, all Tri-Vortex terms and conditions, policies, and operating procedures concerning customer orders, customer service, delivery conditions and product sales will apply to those customers. Tri-Vortex may change the current policies and operating procedures at any time.
YOUR RESPONSIBILITY AS AN AFFILIATE
9. You will be solely responsible for the development, operation, and maintenance of your site and for all materials that appear on your site. For example, you will be solely responsible for the technical operation of your site and all related equipment.
10. You will be responsible for the accuracy and appropriateness of materials posted on your site (including, among other things, all Content-related materials). If Tri-Vortex notices any inaccurate or inappropriate links or content on AFFILIATE site in connection with Tri-Vortex, and if Tri-Vortex notifies AFFILIATE of the changes to be made, affiliate must make these changes within 7 days.
11. You will be responsible for ensuring that materials posted on your site do not violate or infringe upon the rights of any third party (including, for example, copyrights, trademarks, privacy, or other personal or proprietary rights).
12. You will be responsible for ensuring that materials posted on your site are not illegal. Tri-Vortex disclaim all liability for these matters. Further, you will indemnify and hold Tri-Vortex harmless from all claims, damages, and expenses (including, without limitation, attorneys' fees) relating to the development, operation, maintenance, and contents of your site.
13. You may not make any press release with respect to this Agreement or your participation in the Affiliate program without Tri-Vortex prior written consent, which may be given or withheld at Tri-Vortex's sole discretion. In addition, you may not in any manner misrepresent or embellish the relationship between Tri-Vortex and you.
14. You will not hold out or create an impression you conduct the business of Tri-Vortex. Your domain name will not contain the words "Tri-Vortex" or similar and you will not purchase secure or control directly or indirectly any advertising (such as Google Adwords, eBay or Inktomi) based on or which promotes a brand or corporate name of Tri-Vortex or Tri-Vortex or any trading or brand name now or in the future. Further, you will indemnify and hold Tri-Vortex harmless from all costs and expenses (including, without limitation, attorneys' damages) and any financial or business loss arising as a result of a breach of this clause.
Tri-Vortex RESPONSIBILITIES
15. Tri-Vortex shall process sales placed by customers who follow the link from the AFFILIATE Website to the Tri-Vortex Website and reserves the right to reject sales that do not comply with any requirements that Tri-Vortex may establish periodically;
16. Tri-Vortex shall be responsible for all aspects of sales and processing of sales including processing secure payments and customer service.
17. Tri-Vortex shall track sales made to customers who purchase products and services by using the link from AFFILIATE Website to Tri-Vortex's Website.
18. Tri-Vortex shall ensure that it's tracking mechanism correctly identifies those purchases made by users who have arrived at the Tri-Vortex Website via a hyperlink specific to the Affiliate;
TERM OF AGREEMENT
19. The term of this Agreement will begin upon Tri-Vortex accepting the Affiliate program application and will end when terminated by either party. Either the AFFILIATE or Tri-Vortex may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination. Upon the termination of this Agreement for any reason, the AFFILIATE will immediately cease use of, and remove from the AFFILIATE site, all links to the Tri-Vortex website, trademarks and logos, and all other materials provided to you pursuant hereto or in connection with the Affiliate program. The AFFILIATE is eligible to earn referral fees only on Tri-Vortex sales of qualifying products that occur during the term, and referral fees earned through the date of termination will remain payable only if the related orders are not cancelled or returned. Tri-Vortex may withhold your final payment for a reasonable time to ensure that the correct amount is paid.
LIMITATION OF LIABILITY
20. Tri-Vortex will not be liable for indirect, special, or consequential damages (or any loss of revenue, profits, or data) arising in connection with this Agreement even if Tri-Vortex has been advised of the possibility of such damages. Further, Tri-Vortex aggregates liability arising with respect to this Agreement and the Affiliate program will not exceed the total referral fees paid or payable to you under this Agreement.
21. Tri-Vortex makes no express or implied warranties or representations with respect to the Affiliate program or any products sold through the Affiliate program (including, without limitation, warranties of fitness, merchantability, or any implied warranties arising out of a course of performance, dealing, or trade usage). In addition, Tri-Vortex make no representation that the operation of the Tri-Vortex website will be uninterrupted or error-free, and will not be liable for the consequences of any interruptions or errors.
TERMS OF SALE OF CONTENT22. Tri-Vortex gives no guarantee or warranty in respect of the products and services provided.
COMMISSION
23. Tri-Vortex shall pay AFFILIATE a commission as stipulated on its Websites which are inclusive of GST and based on sales excluding GST.
24. A cookie of unlimited duration will apply, thereby commission will be paid only on sales made whilst cookie is operating.
25. Commission shall be calculated monthly and paid by the end of the following month. Credit card fees, booking and delivery fees are excluded from commission payment. Chargebacks, refunds or credits for customers will be deducted from the payment.
26. Tri-Vortex shall ensure that its tracking mechanism correctly identifies those purchases of products and services that were initiated by customers via AFFILIATE's Website. Tri-Vortex shall within 7 days of month end provide AFFILIATE substantiation of all sales for the previous month that were initiated through the AFFILIATE Website.
27. Tri-Vortex will make available accurate reports on the number of click throughs received from the AFFILIATE Website (from the Tri-Vortex link provided) and the number and value of sales.
28. Tri-Vortex shall provide information matching monthly commission payment.
29. On termination of the Agreement Tri-Vortex shall pay AFFILIATE such commission as is earned up to and including the date of termination.
30. If, for any reason, Tri-Vortex awards an AFFILIATE customer a refund, or if AFFILIATE's customer payment fails, and Tri-Vortex has already paid AFFILIATE commission earned from that sale, Tri-Vortex will deduct the amount of the refunded/failed sale commission from any subsequent payment to AFFILIATE. If there are no subsequent fees to be paid to AFFILIATE, Tri-Vortex will send AFFILIATE an invoice for the amount of the refunded/failed sale commission, and AFFILIATE agrees to pay the invoiced amount no later than thirty days from the date of the invoice.
31. If a customer has received a credit from Tri-Vortex and uses this credit to purchase the whole or part of a product or service, only that portion of the purchase which is not attributable to a credit is commissionable to you.
32. No products and services supplied at a wholesale level are commissionable.
33. Termination of this Agreement does not affect any accrued rights and remedies of the parties.
BONUS SCHEME
34. The sales commission level as per its Websites. However, AFFILIATES can earn additional commission each month depending on the level of sales they reach during that month.
35. Sales target commission rates will be applicable only to the sales confirmed in the current calendar month, then reset back to their original rate at the start of each new month.
LEAD GENERATION
36. Tri-Vortex will provide specific links to AFFILIATE to add to their site in order to drive traffic through to the Tri-Vortex Websites.
GOODS AND SERVICES TAX (GST)
37. Unless otherwise expressly stated, all payments, commissions, charges, expenses or other sums payable or consideration to be provided under this Agreement are GST inclusive. GST is defined by the respective tax laws of Australia.
38. You need to supply a valid ABN number and be registered for GST.
GENERAL
39. Privacy: The parties agree to comply at all times with the Privacy Act 1988 (Commonwealth) and to comply with the National Privacy Principles as set out in the Act.
40. Non Exclusive: The parties agree that this Agreement has no impact or bearing upon the other business activities of Tri-Vortex or AFFILIATE.
41. Assignment: Neither this Agreement nor any rights or obligations under this Agreement may be assigned or otherwise transferred by any party without the prior written consent of the others.
42. Waiver: No waiver by any party of any provisions of this Agreement will amount to a continuing waiver or a 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.
43. Governing Law: This Agreement is governed by the laws of Victoria, state of Australia, without reference to rules governing choice of laws. Any action relating to this Agreement must be brought in the federal or state courts located in Melbourne, and you consent irrevocably to the jurisdiction of such courts. You may not assign this Agreement, by operation of law or otherwise, without the Tri-Vortex prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns. Tri-Vortex failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of Tri-Vortex right to subsequently enforce such provision or any other provision of this Agreement.
44. Force Majeure: Neither party will be liable for any failure to carry out any provision of this Agreement if the failure was caused by circumstances beyond its control such as, but not limited to, acts of God, fire, accident, interruptions to energy supplied, strike, riot, civil commotion, acts of terrorism or war whether declared or not. If a party's performance of its obligations under this Agreement is affected by an event contemplated by this Clause, which party will use its best endeavors to promptly restore itself to a position where it can perform its obligations.
45. Severability: If any provision of this Agreement is held to be invalid or unenforceable in any way, the remaining provisions will not be affected and this Agreement will be interpreted so as to most nearly give effect to the intentions of the parties as it was originally signed.
46. Entire Agreement: This Agreement, together with any documents referred to in this Agreement or executed contemporaneously in connection with this Agreement, comprises the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all prior understandings, agreements, representations and correspondence.
47. Survival of Indemnities: The indemnities contained in this Agreement are continuing obligations of the parties separate and independent from their other obligations and will survive the termination of this Agreement.
MODIFICATIONS TO THIS AGREEMENT
48. Tri-Vortex, at its sole discretion, may modify, at any time, any of the terms and conditions contained in this Agreement by posting a change notice or a new agreement on the Tri-Vortex website or by e-mail addressed to you. If any modification is unacceptable to you, you may terminate this agreement. Your continued participation in the Affiliate program following our posting of a change notice or new agreement on the Tri-Vortex website will constitute binding acceptance of the change.
YOUR ACKNOWLEDGEMENT
49. You acknowledge that you have read this agreement and agree to all its terms and conditions. You have independently evaluated the desirability of participating in the Affiliate program and are not relying on any representation, guarantee, or statement other than as set forth in this agreement.
CORPORATE
This agreement is entered into by the AFFILIATE and Tri-Vortex who is:
Universal Source Pty Ltd Trading As Tri-Vortex
PO Box 1200
Kunyung 3930
Victoria, AUSTRALIA
Last updated: 27 Oct 2009
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