O’Keefe & Fox Industries Pty Ltd Affiliate Agreement & Contract
This Agreement contains the complete terms and conditions which you (the “Affiliate”) agree to be bound by as a participant in O\’Keefe & Fox Industries Pty Ltd(“O\’Keefe & Fox Industries Pty Ltd”) affiliate program (the “Program”) and which shall apply once your application to participate in the Program has been accepted by O\’Keefe & Fox Industries Pty Ltd.
ARTICLE 1. INTRODUCTION
1.01 O\’Keefe & Fox Industries Pty Ltd is the sole and exclusive owner of all right, title and interest including all intellectual property rights in and to the contents, logos, style, design, look and feel, trade names, trademarks to all literary works, computer software programs, products, goods and services (including and all future versions thereof) currently entitled the (“Product”). Product refers to the singular as well as the plural.
1.02 O\’Keefe & Fox Industries Pty Ltd intends to sell and distribute the Product electronically and/or physically using, in part, third party affiliates who will establish links to O\’Keefe & Fox Industries Pty Ltd’s Web site where the Product will be offered for sale.
1.03 If, in the future, O\’Keefe & Fox Industries Pty Ltd sells and distributes any other goods or services through the Internet, it shall offer to its Affiliates at that time the opportunity to become Vendor-Affiliates of such goods or services. Such goods or services shall be included in the defined term “Product” and this Agreement shall then also apply to such goods or services.
ARTICLE 2. PARTICIPATION & REPRESENTATION
2.01 O\’Keefe & Fox Industries Pty Ltd hereby grants to the Affiliate the non-exclusive and revocable right to market and advertise the Product and to establish links to O\’Keefe & Fox Industries Pty Ltd’s Web site, in accordance with this Agreement.
2.02 The Affiliate shall diligently and continuously market and advertise the Product through the Internet and shall develop, operate and maintain links from its site to O\’Keefe & Fox Industries Pty Ltd’s site at its sole cost and expense.
2.03 The Affiliate represents and warrants to O\’Keefe & Fox Industries Pty Ltd that this Agreement has been duly and validly executed and constitutes and shall continue to constitute a legal obligation, enforceable in accordance with its terms.
ARTICLE 3. AFFILIATE SALES COMMISSIONS
3.01 If, as a result of a direct advertising effort of the Affiliate, a referred customer of the Affiliate or of a member of the Affiliate’s team (as defined) orders and pays for the Product or other goods or services sold by O\’Keefe & Fox Industries Pty Ltd in the future, O\’Keefe & Fox Industries Pty Ltd shall pay the Affiliate a sales commission determined in accordance with the Affiliate Compensation Schedule which follows this Agreement and which forms an integral part of it. The commission is based upon the paid selling price of the purchased goods or services before tax and excluding returns (“Sales Commission”).
3.02 AN AFFILIATE SHALL NOT RECEIVE A SALES COMMISSION FOR A PRODUCT PURCHASE MADE, DIRECTLY OR INDIRECTLY, BY HIMSELF/HERSELF. O\’Keefe & Fox Industries Pty Ltd, in its sole and complete discretion may create multiple level compensation plans. In the case of a multiple level compensation plan, an Affiliate’s Team means all Affiliates introduced to the Program by the Affiliate in question. In the event that more than one Affiliate claims the same commission for a sale, O\’Keefe & Fox Industries Pty Ltd shall select the Affiliate which shall receive the compensation.
3.03 The Affiliate shall be responsible for all taxes and other similar levies applicable to the Sales Commission pursuant to any law or regulation. The Affiliate shall report the Sales Commission to its taxation authorities as required by law.
3.04 O\’Keefe & Fox Industries Pty Ltd shall post and maintain, on a current basis, a designated password-protected Web page for each Affiliate showing the Affiliate’s participation in the Program including number of potential customers referred by it and an estimate of the Sales Commission owing to it. O\’Keefe & Fox Industries Pty Ltd shall, on or about the 1 of each month, mail or otherwise transmit the Sales Commission representing the amount payable for the sales completed in the previous month. Sales statistics of the referred transactions, supporting the amount paid, shall be made available on the Affiliate’s private site. Affiliates will receive the Sales Commission in US dollars. For administrative convenience, if the Sales Commission is less than $20 dollars in a month, it shall be paid during a future month. The Affiliate may receive the Sales Commission where the amount in question is less than $20 dollars by advising O\’Keefe & Fox Industries Pty Ltd and assuming O\’Keefe & Fox Industries Pty Ltd’s cost of making the payment. If an Affiliate maintains a balance of less than $50 dollars of Sales Commission in a period of 12 consecutive months without asking for payment during that time, the Sales Commission shall be forfeited. Sales Commission overpayments may be deducted from future payments or shall be reimbursed by the Affiliate.
3.04A All commissions are paid on a 30 day cycle, which is the time from sale that the online products are refundable. All payments are paid by PayPal, subject to transfer fees and international currency fluctuations.
3.04B We occasionally get returns. If the product the affiliate received a commission on is returned, O’Keefe & Fox Industries Pty Ltd will deduct the paid commission from your balance future affiliate payment.
3.04C Notification of Account Changes. You agree to provide O’Keefe & Fox Industries Pty Ltd with such other information relating to your use of this service as we deem necessary or desirable. You agree to notify us if your address, email address, telephone number, billing information changes. Failure to update your account information (mailing address for Paypal, email address for Paypal payments, which are mandatory for international affiliates), will result in withholding of payments. After 6 months of being unable to pay you, your affiliate commissions will be forfeited.
3.05 Upon written request and at the Affiliate’s expense, the Affiliate may cause O\’Keefe & Fox Industries Pty Ltd’s books and records to be examined by an independent firm of accountants to ensure compliance with this Agreement. In the event that the examination reveals an underpayment error of more than 5%, the underpayment and the reasonable cost of the examination to a maximum of $100 dollars shall be paid by O\’Keefe & Fox Industries Pty Ltd. If the examination does not reveal an underpayment as aforesaid, the Affiliate shall compensate O\’Keefe & Fox Industries Pty Ltd for its reasonable cost to a maximum of $100 dollars. The firm of accountants utilized shall limit the scope of their examination to the relevant information regarding the Sales Commission and shall keep private and confidential all information obtained in the course of the said examination.
ARTICLE 4. AFFILIATE SITES AND PROMOTION METHODS
4.01 The Affiliate shall be solely responsible for all materials that appear on its site. It shall strictly adhere to all applicable laws and regulations in conducting its business and more specifically in marketing and advertising the Product. Without restricting the generality of the foregoing, the Affiliate shall not send unsolicited e-mail and shall not send e-mail or any other communication to a recipient if the recipient has requested that it discontinue such communication, nor shall it send or display on its Web site any material that may be considered to be harassing, libelous, defamatory, legally obscene or pornographic, threatening, abusive or hateful.
4.02 O\’Keefe & Fox Industries Pty Ltd shall have the right, but not the obligation, to pre-approve the graphics and logos used on any Web site which is linked to its site. Furthermore, the Affiliate shall annotate its site with appropriate copyright, trademark and other similar notices, which shall be approved by O\’Keefe & Fox Industries Pty Ltd. If the Affiliate specifies a price point for the Product in its marketing and advertising, it shall ensure that it is updated regularly to reflect all price changes.
4.03 O\’Keefe & Fox Industries Pty Ltd shall have the right to monitor the Affiliate’s Web site at any time and from time to time to determine if it is in compliance with the terms and conditions on this Agreement.
4.04 The Affiliate agrees not to use any predatory advertising methods designed to generate traffic from sites that they have not contracted with in the online promotion of O\’Keefe & Fox Industries Pty Ltd’s products, services or affiliate program. Predatory advertising is defined as any method that creates or overlays links or banners on web sites, spawns browser windows, or any method invented to generate traffic from a web site without that web site owner’s, knowledge, permission, and participation. Examples include, but are not limited to, keyword parsing, browser plug-ins such as TopText and Surf+, banner replacement technology such as Gator, browser spawning technology that is not web site dependent. Participation in predatory advertising programs will be cause for the affiliate’s immediate termination. YOUR SERVICE WILL BE TERMINATED IMMEDIATELY AND WITHOUT WARNING SHOULD YOU USE OUR SYSTEM AS PART OF ANY BULK EMAIL CAMPAIGN. You may also be subject to fines and legal actions as a result of your bulk email promotion.
4.05: Affiliate agrees to sell the products at the same price as the price on the O’Keefe and Fox Industries shop. They cannot be sold at less than that price. Affiliates may not undercut those prices by selling for less than that price. Neither can they be sold at a higher price than we retail the product. The product cannot be put on eBay or any other type of auction site as we consider that would devalue the character of our products.
ARTICLE 5. ORDER PROCESSING
5.01 O\’Keefe & Fox Industries Pty Ltd shall establish the procedures of selling the Product including, without limitation, the placement of orders, pricing, payment terms, processing, delivery, returns etc. Without restricting the generality of the foregoing, O\’Keefe & Fox Industries Pty Ltd shall have the right to cancel, suspend or delay any order for the Product, including the right to discontinue selling the Product at any time.
ARTICLE 6. LICENSES AND GOODWILL PRESERVATION
6.01 O\’Keefe & Fox Industries Pty Ltd shall have the right, but not the obligation, to approve, in its sole and absolute discretion and with due regard to the protection and preservation of the goodwill of the Product any promotional, advertising or marketing item used by the Affiliate. The Affiliate shall make all deletions and modifications suggested by O\’Keefe & Fox Industries Pty Ltd on any site where the Product is mentioned.
6.02 The Affiliate shall acknowledge and clearly identify and respect that all proprietary information, trademarks, copyrights and all other similar rights in and arising out of the Product are, and shall continue to be, the exclusive property of O\’Keefe & Fox Industries Pty Ltd. In the event the Affiliate learns of any claim or allegation that the Product infringes upon or violates any intellectual property or proprietary rights of a third party, or contains any unlawful, libelous, or untrue statement, it shall immediately notify O\’Keefe & Fox Industries Pty Ltd so as to enable O\’Keefe & Fox Industries Pty Ltd to defend, settle or otherwise resolve the claim or allegation in a manner that O\’Keefe & Fox Industries Pty Ltd deems appropriate in its sole discretion.
6.03 Customers who purchase the Product through the Program shall be deemed to be customers of O\’Keefe & Fox Industries Pty Ltd, and the Affiliate shall refer all Product-related questions, requests or queries to O\’Keefe & Fox Industries Pty Ltd. O\’Keefe & Fox Industries Pty Ltd shall have the right to utilize the Affiliate’s name and logo to advertise, market, promote and publicize in any manner the Product.
6.04 The Affiliate shall not make or give to a customer or a potential customer any warranty, representation or other statement concerning the Product without first obtaining the written consent of O\’Keefe & Fox Industries Pty Ltd.
ARTICLE 7. RELATIONSHIP OF PARTIES
7.01 While the parties shall work hand-in-hand for the benefit of both, the parties acknowledge and agree that the Affiliate shall, from a legal perspective, act as and shall be an independent contractor and not an employee or agent of O\’Keefe & Fox Industries Pty Ltd. Nothing in this Agreement shall create a partnership, joint venture, agency, or franchise between the parties in the legal sense of these terms. The Affiliate shall not sign any document in the name of or on behalf of O\’Keefe & Fox Industries Pty Ltd nor shall it hold itself out as being an agent of O\’Keefe & Fox Industries Pty Ltd or as having apparent authority to contract for or bind O\’Keefe & Fox Industries Pty Ltd.
ARTICLE 8. LIMITATION OF LIABILITY
8.01 In no event shall O\’Keefe & Fox Industries Pty Ltd be liable for special, incidental, consequential or punitive damages, including, without limitation, any damages resulting from loss of profits, loss of business or loss of goodwill arising out of or in connection with this Agreement or the Product, whether or not such party has been advised of the possibility of such damages. O\’Keefe & Fox Industries Pty Ltd shall not be liable for any damages if, for any reason whatsoever, its Web site fails or is non-operational for any reason whatsoever.
ARTICLE 9. TERM OF THE AGREEMENT
9.01 In the event that the Affiliate breaches any of the undertakings or obligations set forth in this Agreement and does not remedy same within 7 days notice from O\’Keefe & Fox Industries Pty Ltd, it shall automatically forfeit the Sales Commission then receivable or receivable at any time in the future. O\’Keefe & Fox Industries Pty Ltd shall, in addition, have the right to terminate this Agreement and shall retain all other rights and remedies available to it at law or in equity.
9.02 This Agreement shall automatically terminate if the Affiliate ceases to actively market the Product for a period of 90 days. O\’Keefe & Fox Industries Pty Ltd shall have the right but not the obligation to terminate this Agreement with an Affiliate whose Sales Commission in a calendar year was in the bottom 20 percent of Sales Commission of all Affiliates in the calendar year in question, by giving the Affiliate 90 days notice of termination. In such cases the Sales Commission owing, representing the sums earned shall be paid even after termination of this Agreement. The Affiliate shall have the right to terminate this Agreement at any time upon written notice to O\’Keefe & Fox Industries Pty Ltd.
9.03 As soon as notice of termination of this Agreement is given or upon termination as herein provided, the Affiliate shall immediately cease its marketing and advertising of the Product and shall forthwith eliminate all mention and references to the Product and all links to O\’Keefe & Fox Industries Pty Ltd. Pending the completion of the foregoing, O\’Keefe & Fox Industries Pty Ltd may hold in abeyance the Sales Commission.
ARTICLE 10. MODIFICATION AND APPLICATION OF AGREEMENT
10.01 O\’Keefe & Fox Industries Pty Ltd may, in good faith, modify any of the terms and conditions contained in this Agreement (including the Affiliate Compensation Schedule), at any time and in its sole discretion, by posting a change notice or a new agreement on its Web site. If any modification to this Agreement is not acceptable to the Affiliate, its only recourse is to terminate this Agreement. The Affiliates continued participation in the Program following the said posting of a change notice or new agreement shall constitute binding acceptance by the Affiliate of the change.
10.02 If any of the provisions of this Agreement are determined by a court to be unenforceable, they shall be severed from this Agreement, and the remaining provisions shall remain in full force and effect.
10.03 The Affiliate shall not assign, transfer or convey this Agreement or any part thereof to any other party without O\’Keefe & Fox Industries Pty Ltd’s consent which shall not be unreasonably refused.
10.04 This Agreement shall endure to the benefit of and be binding upon the parties hereto and their respective heirs, legatees, executors, legal representatives, successors and assigns.
10.05 This Agreement represents the entire agreement between the parties and supersedes all prior negotiations, agreements and understandings, if any. For greater certainty but without restricting the aforementioned, information contained in any of the following shall not form part of this Agreement, namely:
Descriptions of the Program (including the descriptions of Sales Commission payable to the Affiliates) on O\’Keefe & Fox Industries Pty Ltd’s Web site(s);
E-mail communications from O\’Keefe & Fox Industries Pty Ltd or from any of its employees, officers or directors;
Information in the Product, or in marketing/informational documents.
ARTICLE 11. INDEPENDENT INVESTIGATION
11.01 The Affiliate acknowledges that it has reviewed this Agreement and agrees to all its terms and conditions. The Affiliate understands that O\’Keefe & Fox Industries Pty Ltd may at any time solicit customer referrals on terms that may differ from those contained in this Agreement or operate Web sites that are similar to or compete with the Affiliate’s Web site. The Affiliate has independently evaluated the desirability of participating in the Program and is not relying on any representation, guarantee or statement other than as set forth in this Agreement.
ARTICLE 12. MISCELLANEOUS PROVISIONS
12.01 Any reference in this Agreement to gender includes all genders and words importing the singular number only shall include the plural and vice versa.
12.02 The insertion of headings and the division of this Agreement into Articles and Sections are for convenience reference only and are not to affect its interpretation.
12.03 Each of the parties hereto covenants and agrees that it shall execute and deliver such additional agreements and documents and do such acts and things as may be reasonably necessary fully and effectually to carry out the intent and purpose of this Agreement.
12.04 Time shall be of essence of this Agreement.
12.05 All notices, requests and other communications shall be deemed to have been received when posted by O\’Keefe & Fox Industries Pty Ltd on its Web site. It shall also be deemed to have been received on the next business day if transmitted by Telecopier, e-mail or any other form of electronic mail to the last known electronic address of the intended recipient.
12.06 If a dispute arises under this agreement, we agree to first try to resolve it with the help of a mutually agreed-upon mediator in the following location: Sydney, Australia. Any costs and fees other than attorney fees associated with the mediation will be shared equally by each of us.
If it proves impossible to arrive at a mutually satisfactory solution through mediation, we agree to submit the dispute to binding arbitration at the following location: Sydney, Australia, under the rules of the American Arbitration Association. Judgment upon the award rendered by the arbitration may be entered in any court with jurisdiction to do so.
The parties have required that this Agreement and related documents be drafted in English.
ARTICLE 13. AFFILIATION AND COMPENSATION DISCLOSURES
As of December 1st, 2009, The Federal Trade Commission of the United States of America has set forth new Guidelines for Endorsements and Testimonials, demanding that all Endorsers and Testimonial Givers divulge the nature of their compensation and affiliation with the product company or manager.
Therefore as part of this affiliate agreement, you agree to ‘Clearly and Conspicuously’ divulge how you are monetarily compensated through your referral sales, and that you receive(d) any other compensation from O\’Keefe & Fox Industries Pty Ltd, monetary or otherwise, as the case may be, whenever you put forth any endorsement or testimonial in any media with the purpose of endorsing our products or services with the intent to sell them to consumers.
You further agree to use only the promotional materials that have been sanctioned by O\’Keefe & Fox Industries Pty Ltd and to take full responsibility for your own actions should you be investigated for not adhering to the Federal Trade Commission of the United States of America has set forth new Guidelines for Endorsements and Testimonials, and shall not hold O\’Keefe & Fox Industries Pty Ltd responsible in any way for actions or use of promotional materials not sanctioned by O\’Keefe & Fox Industries Pty Ltd.
You further agree that you have read and understand the new Guidelines for Endorsements and Testimonials 16 CFR Part 255 (which can be found at http://www.ftc.gov/os/2009/10/091005endorsementguidesfnnotice.pdf ) that the Federal Trade Commission of the United States of America has set forth and which go into effect on December 1st, 2009. And you also hereby agree to uphold ALL of the provisions contained in that document while endorsing or promoting products or services for O\’Keefe & Fox Industries Pty Ltd.
Failure to do so may (at the sole discretion of O\’Keefe & Fox Industries Pty Ltd) result in immediate termination of your affiliate account, and forfeiture of any commissions accrued.
AFFILIATE COMPENSATION SCHEDULE
50% on digital products 10% on events – live or virtual (eg paid workshops, seminars, webinars, teleseminars etc)
We will reject anyone who uses marketing techniques that…
Exploit sex to sell
Are hateful or discriminatory in any way
Are harassing or use spam in any way, shape, or form
Are libelous or defamatory
Are threatening or abusive
Are illegal or on the borderline
Violate the copyrights or trademarks of others
Are in such poor taste that we do not want the association.
Submitting the Affiliate Sign up form constitutes a legal agreement by you to these terms of business.