Affiliate terms and conditions of Black Cactus Digital

We are: Black Cactus Digital, a company registered in Australia, number 40 935 095 082 Our address is: PO Box 661, Cannonvale  QLD  4800

Our Website is at: blackcactusdigital.com

You are: any person who signs up to be an Affiliate or any person with whom we make an arrangement for payment on sales introduced by you.

These terms and conditions regulate the business relationship between you and us. If you sign up as an Affiliate, you agree to be bound by them.

These are the agreed terms

1.            Definitions

“Affiliate”	means a Visitor who joins our Affiliate programme direct from Your Website. It also includes you.
“Affiliate Tools”	means any material in any medium supplied by us for use by you in promoting the Goods or Services or linking to Our Website.
“Commission”	means the money paid by us to you under the terms of this agreement.
“Commission Period”	means the period of time starting on the date a Visitor becomes a Tagged Visitor.
“Confidential Information”	means all information about us. It includes among other things: information about our staff, their personal contact information, our businesses, methods of doing business, future plans, policies, suppliers and customers. It includes information about suppliers, agents, distributors and customers. It includes information about the Intellectual Property.
“Content”	means the textual, visual or aural content that is encountered as part of your experience on Our Website. It may include, among other things: text, images, sounds, videos and animations. It includes Content Posted by you.
“Goods”	means all of the goods offered for sale by us on Our Website.
“Intellectual Property”	means intellectual property owned by us, of every sort, whether or not registered or registrable in any country, including intellectual property of kinds coming into existence after today; and including, among others, patents, trademarks, unregistered marks, designs, copyrights, software, domain names, discoveries, creations and inventions, together with all rights which are derived from those rights.
“Level Two Commission”	means the overriding commission calculated as a percentage of the total commission due to your Affiliates.
“Customer”	means a Visitor who pays us for Services or Goods.
“Our Website”	means any website of ours, and includes all web pages controlled by us.
“Pay Day”	means the day each month by which we shall have paid Commission due to you.
“Post”	means place on or into Our Website any Content or material of any sort by any means.
“Reports”	means the reports automatically prepared on Our Website for the purpose of providing to you statistics relating to Tagged Visitors and sales.
“Services”	means all of the services available from Our Website, whether free or charged.
“Tagged Visitor”	means a Visitor who at any time is recorded by us as having reached Our Website directly by way of a link from Your Website and with the intention of visiting Our Website.
“Visitor”	means anyone who visits Our Website.
“Your Website”	means the site on which you place one or more links to Our Website and through which we tag Visitors from you.

2.            Interpretation

In this agreement unless the context otherwise requires:

• a reference to a person is a reference to one or more individuals, whether or not formally in partnership, or to a corporation, government body, or other association or organisation.
• any agreement by any party not to do or omit to do something includes an obligation not to allow some other person to do or omit to do that same thing.
• [except where stated otherwise,] any obligation of any person arising from this agreement may be performed by any other person.
• in this agreement references to a party include references to a person to whom those rights and obligations are transferred or pass as a result of a merger, division, reconstruction or other re-organisation involving that party.
• the headings to the paragraphs to this agreement do not affect the interpretation.
• a reference to an act or regulation includes new law of substantially the same intent as that act or regulation.
• in any indemnity, a reference to costs or expenses shall be construed as including the estimated cost of management time of the indemnified party, such cost calculated $100AUD per hour.
• this agreement is made only in the English language. If there is any conflict in meaning between the English language version of this agreement and any version or translation of this agreement in any other language, the English language version shall prevail.

3.            Entire agreement

• This agreement contains the entire agreement between the parties and supersedes all previous agreements and understandings between the parties.
• Each party acknowledges that, in entering into this agreement, he does not rely on any representation, warranty, information or document or other term not forming part of this agreement.
• As an exception to the last previous sub paragraphs, the parties do rely on information provided in writing as follows:

n/a at this time

4.            Relationship of parties

• This agreement does not create a partnership or agency or the relationship of employer and employee, or other relationship between any of the parties, other than the contractual relationship expressly provided for.
• Neither party shall have, nor represent that it has, any authority to make any commitment on the other party’s behalf.

5.            Applicable values

• The Commission rate is 20%.
• The Commission rate on Website Maintenance Plans is 10%.
• The Commission rate on website hosting is 20%.
• The Commission Period is 12 months.
• Pay Day is the [10th day] of the month.

6.            Our contract

• We will pay you Commission on each person who signs up [as a member of our Website Care Plans or Hosting and who reaches Our Website directly from Your Website or Referral Link.
• You register as an Affiliate by completing the online form. By confirming your registration on that form you agree to be bound by all the terms and conditions set out in this agreement.
• This agreement covers only our Affiliate programme. When viewing or using Our Website you are bound by the same terms and conditions as any other Visitor.
• Please do not enrol as an Affiliate if Your Website is unsuitable as we will immediately terminate the agreement. See below for a list of some of the types of unsuitable sites.

7.            Commission calculation and payment

• We will pay Commission (including Level Two Commission) on or before the Pay Day in respect of all Commission credited in the previous month. We are not responsible for delays in transmission to you.
• Commission is calculated as a percentage of the net receipts arising from all sales after payment of any relevant sales tax.
• Commission is calculated in Australian dollar. The rate of exchange is taken at the date of payment to you.
• No deduction from Commission is made by us in respect of currency exchange costs.
• Commission is inclusive of any tax payable by you to any authority. If we become liable at law to deduct tax before payment to you, we shall do so, paying the net amount to you.
• Commission will be paid by Internet transfer to the account designated by you.
• If the amount due to you is less than $10 in any month, the amount due will be carried forward to the following month repeatedly until the cumulative amount due exceeds $10.

8.            Level Two Commission

• We agree to pay Level Two Commission at the Level Two Commission rate.
• Level Two Commission shall not be due to you unless Commission is due to your Affiliates. Accordingly, any interruption for any reason to the Commission payment process of your Affiliates will also interrupt payment to you.
• You need take no action to become a “super affiliate”, taking advantage of the upper tier of our 2 tier system. We pay you automatically. Neither is there any minimum level for your own sales in order to qualify as a super affiliate.

9.            Tagging condition

• Commission shall not be payable in respect of a Visitor who is first tagged by us as having reached Our Website from a website owned by some other person than you.
• Commission shall be payable by us to you in respect of all qualifying actions by Tagged Visitors within the Commission Period.
• For the purpose of this agreement a Tagged Visitor shall remain a Tagged Visitor throughout the Commission Period.

10.       Merchant tracking and Reports

• We undertake to set up our Affiliate programme so as to:
  • tag the identity of all Visitors from Your Website;
  • record all sales made to Tagged Visitors within the Commission Period;
  • record the cumulative amount of Commission due to you for any time period you choose;
  • record the history of payments of Commission made to you;
  • provide the Reports.
• We undertake to provide password protected access to you to the Reports.

11.       Changes to this agreement

• We reserve the right to change this agreement at any time and in any way. A change will take effect when we Post it on Our Website. If you continue to send Visitors to Our Website, that will be taken as acceptance of the new terms. However, we do undertake to give you 3 months notice of any proposed change in the Commission rates.
• We reserve the right to change the offer to prospective Customers at any time and without notice to you, even if this affects your earnings. This includes change to prices, operating procedures Our Website’s layout and organisation.

12.       Refunds, charges back and bad cheques

If a payment is later charged back by a merchant service provider or refunded to a Customer or if a Customer’s cheque does not clear, then Commission paid to you for that transaction will be repayable and will become a debt due by you, deducted from your next Commission payment.

13.       Removal of offensive Content

• For the avoidance of doubt, this paragraph is addressed to any person who comes on Our Website for any purpose.
• We are under no obligation to monitor or record the activity of any customer for any purpose, nor do we assume any responsibility to monitor or police Internet-related activities. However, we may do so without notice to you and without giving you a reason.
• If you are offended by any Content, the following procedure applies:
  • Your claim or complaint must be submitted to us in the form available on Our Website, or contain the same information as that requested in our form. It must be sent to us by post or email.
  • we shall remove the offending Content as soon as we are reasonably able;
  • after we receive notice of a claim or complaint, we shall investigate so far as we alone decide;
  • we may re-instate the Content about which you have complained or not.
• In respect of any complaint made by you or any person on your behalf, whether using our form of complaint or not, you now irrevocably grant to us a licence to publish the complaint and all ensuing correspondence and communication, without limit.
• You now agree that if any complaint is made by you frivolously or vexatiously you will repay us the cost of our investigation including legal fees, if any.

14.       Security of Our Website

If you violate Our Website, we shall take legal action against you.

You now agree that you will not, and will not allow any other person to:

• modify, copy, or cause damage or unintended effect to any portion of Our Website, or any software used within it;
• link to Our Website in any way that would cause the appearance or presentation of Our Website to be different from what would be seen by a user who accessed Our Website by typing the URL into a standard browser;
• download any part of Our Website, without our express written consent;
• collect or use any product listings, descriptions, or prices;
• collect or use any information obtained from or about Our Website or the Content except as intended by this agreement;
• aggregate, copy or duplicate in any manner any of the Content or information available from Our Website, other than as permitted by this agreement or as is reasonably necessary for your use of the Services;
• share with a third party any login credentials to Our Website;
• Despite the above terms, we now grant a licence to you to create a hyperlink to Our Website for the purpose of promoting an interest common to both of us. You can do this without specific permission. This licence is conditional upon your not portraying us or any product or service in a false, misleading, derogatory, or otherwise offensive manner. You may not use any logo or other proprietary graphic or trademark of ours as part of the link without our express written consent.

15.       We control Visitor data

• We shall be solely responsible for payment processing, renewal payment processing, cancellations and refund processing, and related Customer services even when the link to Our Website is a co-branded page on Your Website.
• All personal information about Customers collected by us is owned solely and exclusively by us.

16.       Publicity and Affiliate Tools

• You will not create, publish, distribute or permit any written material that makes reference to us without first having obtained our written consent.
• You agree that you will not without our prior approval in writing use any written or other means of promoting referrals to us except the material comprising Affiliate Tools.
• Affiliate Tools consisting of text may be changed with our permission. Affiliate Tools comprising graphics may not be changed.
• We are under no obligation to provide marketing material or assistance to you but if we do so that shall not make us liable in any way to you or to any third party for that or any other content on Your Website.
• You are responsible for the correct formatting and presentation of the dynamic links to Our Website through which Commission will be recorded.

17.       Duration and termination

This agreement shall continue until terminated:

• by passing of time 36 months from today; or
• by one week’s notice in writing by either of us to the other; or
• immediately by us if we decide (in our sole discretion) that Your Website is or has become unsuitable. Unsuitable sites may include those that: are aimed at children, promote sexually explicit materials, promote violence, promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age; promote illegal activities, or violate intellectual property rights. If we terminate the agreement under this paragraph we does not have to give you any reason; or
• immediately by either of us if the other commits any material breach of any term of this agreement and which in the case of a breach capable of being remedied is not remedied within 30 days of a written request to remedy it.

18.       At and after termination

When this agreement terminates:

• All rights and licences granted to you in this agreement shall immediately terminate.
• You will not be entitled to Commission for sales made by us after the date of termination.
• You will immediately stop using the Affiliate Tools and (where applicable) will remove them from Your Website.
• You will remain entitled to all Commission and Level Two Commission earned on or before the date of termination.
• If we continue to receive payments from Tagged Visitors after termination of this agreement, this will not constitute a continuation or renewal of this agreement or a waiver of termination.
• You will immediately return to us all copies of all Confidential Information in your possession and will cease to use the Intellectual Property.
• We may withhold from you the final payment of Commission for a reasonable time to ensure that the correct amount is paid.
• All claims or actions that one party has against the other shall remain intact despite termination.

19.       Intellectual Property

You agree that at all times you will:

• not cause or permit anything which may damage or endanger our title to the Intellectual Property.
• not during the currency of this agreement or within five years of its expiry, instruct for, create or write software to perform any of the purposes for which the Services are used.
• notify us of any suspected infringement of the Intellectual Property;
• indemnify us for any loss or expense arising from your misuse of the Intellectual Property;
• on the expiry or termination of this agreement immediately stop using the Intellectual Property except as expressly authorised by the us in writing;
• not use any name or mark similar to or capable of being confused with any name or mark of ours;
• not use the Intellectual Property except directly in our interest.

20.       Confidential Information

• You now agree that you will:
  • keep all records of the Confidential Information in all media separate from other records;
  • use your best endeavours to keep confidential (and to make sure that your employees and agents shall keep confidential) any Confidential Information which you or they may acquire.
  • not store, copy, or use the Confidential Information in any place or in any electronic form which may be accessible to any other person.
  • not use or disclose Confidential Information except with our consent.
  • from today until the expiry of five years from the termination of this agreement, keep the Confidential Information secret and not divulge or make it known to anyone nor use it for the benefit of yourself or any other person.
• This paragraph does not apply to disclosure:
  • made with the consent of the proper officers of the company or under the authority of the board or by order of the court.
  • of information or knowledge which comes into the public domain otherwise than by reason of our default.
  • as may be minimally necessary to give effect to the purposes of this agreement whilst ever the agreement is operational.
• The obligations set out in this paragraph shall continue to be fully effective indefinitely even if you have destroyed or returned the Confidential Information.
• We hereby grant to you a non-exclusive, non-transferable licence, during the term of this agreement, to use the Intellectual Property solely to promote the Goods and Services.
• This licence cannot be sub-licensed, assigned or otherwise transferred by you.
• The provisions of this paragraph shall survive for a period of 5 years after termination of this agreement.

21.       You indemnify us

You agree to indemnify us against all costs claims and expense arising directly or indirectly from:

• any claim representation or warranty made by you in connection with us or the Goods or Services; or
• your failure to comply with the law of any country; or
• any use of Your Website for a purpose forbidden by this agreement;
• legal or other fees we incur in defending a claim or the imposition of a fine or penalty.

22.       Interruption to the Service

• If we believe in our absolute discretion that it is necessary for us to interrupt the Services we may do so without notice to you.
• You acknowledge that the Services may also be interrupted for reasons beyond our control.
• You agree that we are not liable to you for any loss whether foreseeable or not, arising as a result of interruption to the Services.

23.       Disclaimers and limitation of liability

• The law differs from one country to another. This paragraph applies so far as the applicable law allows.
• All implied conditions, warranties and terms are excluded from this agreement.
• Our Website includes Content Posted by third parties. We are not responsible for any such Posting. If you come across any Content which offends against this document, please contact us via the “Contact us” page on Our Website.
• You are advised that Content may include technical inaccuracies or typographical errors. This is inevitable in any large website. We would be grateful if you bring to our immediate attention, any that you find.
• Our Website contains links to other Internet websites. We have neither power nor control over any such website. You acknowledge and agree that we shall not be liable in any way for the content of any such linked website, nor for any loss or damage arising from your use of any such website or from your buying services or goods via such a website.
• The Black Cactus Digital Website and Black Cactus Digital Services are provided “as is”. We make no representation or warranty that the Service will be:
  • useful to you;
  • of satisfactory quality;
  • fit for a particular purpose;
  • available or accessible, without interruption, or without error.
• We claim no expert knowledge in any subject. We disclaim any obligation or liability to you arising directly or indirectly from information you take from Our Website.
• We accept no responsibility for:
  • delivery of Content, material or any message;
  • privacy of any transmission;
  • third party advertisements which are posted on Our Website or through the Services;
  • the conduct, whether online or offline, of any user of Our Website or the Services;
  • failure or malfunction of computer hardware or software or technical equipment or system connected directly or indirectly to your use of the Services.
  • loss or damage resulting from your attendance at an event organised through Our Website or the Services;
• You agree that in any circumstances when we may become liable to you, the limit of our liability is the amount you have paid us in the immediately preceding 12 month period for the Services concerned.
• Except in the case of death or personal injury, our total liability under this agreement, however it arises, shall not exceed the sum of $
• We shall not be liable to you for any loss or expense which is:
  • indirect or consequential loss; or
  • economic loss or other loss of turnover, profits, business or goodwill even if such loss was reasonably foreseeable or we knew you might incur it.
• This paragraph (and any other paragraph which excludes or restricts our liability) applies to our directors, officers, employees, subcontractors, agents and affiliated companies as well as to us.
• Nothing in this agreement shall be construed as limiting or excluding our liability for death or personal injury caused by our negligence.

24.       Miscellaneous matters

• Our privacy policy is strong and precise. It complies fully with the current privacy law which is at https://blackcactusdigital.com/privacy-policy/.
• The schedules, if any, to this agreement are part of the agreement and have the same force and effect.
• So far as any time, date or period is mentioned in this agreement, time shall be of the essence.
• If any term or provision of this agreement is at any time held by any jurisdiction to be void, invalid or unenforceable, then it shall be treated as changed or reduced, only to the extent minimally necessary to bring it within the laws of that jurisdiction and to prevent it from being void and it shall be binding in that changed or reduced form. Subject to that, each provision shall be interpreted as severable and shall not in any way affect any other of these terms.
• The rights and obligations of the parties set out in this agreement shall pass to any permitted successor in title.
• No failure or delay by any party to exercise any right, power or remedy will operate as a waiver of it nor indicate any intention to reduce that or any other right in the future.
• Any communication to be served on either party by the other shall be delivered by hand or sent by express post or recorded delivery or by e-mail.

It shall be deemed to have been delivered:

if delivered by hand: on the day of delivery;

if sent by post to the correct address: within 72 hours of posting;

• In the event of a dispute between the parties to this agreement, then they undertake to attempt to settle the dispute by engaging in good faith with the other in a process of mediation before commencing arbitration or litigation.
• So far as the law permits, and unless otherwise stated, this agreement does not give any right to any third party.
• In the event of any conflict between any term of this agreement and the provisions of the constitution of a limited company or any comparable document intended to regulate any other corporate or collective body, then the terms of this agreement shall prevail.
• The validity, construction and performance of this agreement shall be governed by the laws of the State of Queensland and you agree that any dispute arising from it shall be litigated only in that State.

 

 

Explanatory notes:

Affiliate terms and conditions template

Paragraph specific notes:

Notes numbering refers to paragraph numbers.

1. Definitions

Every business is different, and this applies as much to a description of what is being offered as to the processes. The defined terms that we use are unlikely to suit most businesses perfectly.

By all means use the find and replace function in your word processor to change them, either to other general adjectives, or to specific product or service names. For example:

We use	you might decide to change to
“Goods”	“Toys” / “Headphones”
“Services”	“Our Advisory Service”/ “Membership Services”
“Our Website”	“The Toy Store Site”/ “The Site”

But if you do change the defined word, make sure it applies to every use of it in the document.

Remember too, that when a word or phrase is defined, the defined meaning, capitalised, takes precedence over the common meaning of that word or phrase.

You should first decide on the contents of the document, then return to check what definitions are needed and whether they really fit the text you have left in place.

2. Interpretation

Leave these items in place unless there is a good reason to edit or remove. The point on GST can be deleted for commercial transactions, when GST is assumed to be due. The last item covers future litigation, when the law does not otherwise allow a claim for the costs of lost management time of the claimant.

3. Entire agreement

This paragraph prevents a party from later saying he was relying on some other document or website or what was said. If other documents are to be relied on, let them be listed here, so that both parties know the basis of the deal. Keep this paragraph in place.

4. Relationship of parties

This is a simple statement for the avoidance of doubt. Of course other documents may indeed create the relationships mentioned. For example, most directors will be employees. It is important however, that this document does not accidentally create other relationships.

5. Applicable values

These figures are entirely for you to decide.

This paragraph also provides for different commission rates for different products or services. You can list them here. If there are many, it is easier to refer to them if they are listed in a schedule. You could alternatively refer to another page on your website, but affiliates may be unhappy to trust a page which may be here today and gone when pay day comes up.

6. Our contract

This is the basis of the contract. We have placed these administrative matters in the T&C because a prospective affiliate will generally be concerned to know how the merchant’s system really works.

7. Commission calculation and payment

The commission calculation paragraph should be completed according to deal you are offering. Be careful. This is what your new affiliate is most concerned to know.

8. Level Two Commission

Some affiliate services, enable multiple levels or tiers of affiliates so that you can attract professional marketers as well as sites in your industry sector. The professional marketers find affiliates for you, and are paid commission based on the sales generated by the affiliates they find.

Level two commission is treated simply as parallel to basic commission. Provision could also be made for level three commission if that was required.

Delete this paragraph if it does not apply to your programme.

9. Tagging condition

This obvious point is made for absolute clarity.

10. Merchant tracking and Reports

Since this is a “take it or leave it” agreement, you do not have to specify exactly what statistics and reports you provide. Many prospective affiliates however, will judge you by the extent to which you are prepared to “commit” to an acceptable provision. In any event, great care should be taken to make sure this paragraph does not commit you to more than your affiliate software programme actually provides!

11. Changes to this agreement

We doubt this provision is valid in law because you cannot unilaterally change a contract. The contract is made. It cannot be changed without either the consent of all parties or termination and creation of a new contract. It is likely that a judge would interpret a change as here set out either as a termination and offer of a new contract but without the consent of the affiliate to the new terms or as no termination but a continuation on the original terms. The best policy would be to tell the affiliate of the change.

12. Refunds, charges back and bad cheques

This covers a simple but important practical point.

13. Removal of offensive Content

This paragraph is targeted at anyone who is aggrieved by content on your site. He may or may not be one of your customers or an affiliate. By stating and following this policy you will reduce the chance of any claim for defamation, breach of copyright, and so on. Depending on how you attract acceptance of the terms generally, this paragraph may not be enforceable against a visitor.

14. Security of Our Website

Your need for this provision also depends on the extent to which users are able to post content of any sort. Delete provisions which are stronger than you need.

15. We control Visitor data

We have included this paragraph because often data has a value, even if not used.

16. Publicity and Affiliate Tools

Much of this paragraph is covered in wider and more general provisions. However, the obligations of your affiliate will be clearer to him if they are spelled out with direct reference to this obvious area of possible problems.

17. Duration and termination

Edit to suit your exact requirements.

18. At and after termination

Important points. Check that there is nothing else important to your particular business.

19. Intellectual Property

Few business managers appreciate just how much IP is owned by the business. There is an enormous variety of IP rights, from domain names to trade marks. It is sensible to leave this provision in place, edited as you wish, because an affiliate will be actively using your IP in selling your products. You need to be able to control how he uses it and to prevent misuse.

20. Confidential Information

We have included this paragraph because a business has so many secrets which could easily be stolen that some safeguard is sensible. You should consider not only what you expect to disclose but what the other side could discover by “digging and fishing” in ways you did not expect.

This is clearly important. The first question must be as to whether you can limit this to your own position rather than allow it to apply to the other party too.

Assuming it will apply to both parties, you must balance the risk of default by your counter-party and your consequent claim, against the cost of a claim against you.

21. You indemnify us

When it is possible that costs might be racked up by your affiliate, it is important to protect yourself as far as possible.

22. Interruption to the Service

A provision to keep your position safe in the event of unexpected interruption which may deprive an affiliate of his commission

23. Disclaimers and limitation of liability

Disclaimers are not always binding. The law is complicated and much depends on the facts of each case. Our best advice to you is to include these disclaimers so far as they apply to your business, but do not expect that you can conduct your business with disregard to the law.

The last thing you expect is an attack by your affiliate. Words in a document cannot protect you from a thief or terrorist or a hacker. However, we believe it is for the best to have as much protection as possible, if only to make clear that you are a force to be reckoned with.

24. Miscellaneous matters

A number of points which should be included in the agreement in order generally to minimise disruption and expense. Unless you have a good reason to delete any one of these, we recommend that they should remain as drawn.