Terms of Use – Affiliate Agreement – My Buddy Gard

Affiliate Terms and Conditions

PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY.

By submitting an application, you are agreeing to be bound by the terms and conditions below. These terms and conditions form the “Agreement”.

The Agreement is a legally enforceable contract between The Trustee for Tracker Buddy Trust Trading as My Buddy Gard (“MBG”, “we” “our” or “us”) and “you”, the company or person named in the application. If you do not want to be bound by the Agreement, you must not submit an application.

1. Joining the Network

1.1 We operate an affiliate marketing network (the “Network”), which enables Affiliates like you (“Affiliates”) to promote My Buddy Gard (“Merchants”) and our products in return for a commission.

1.2 MBG Affiliates have to be paid users of our product and service which is required for participation in MBG Affiliate Program. Only Affiliates who have successfully completed the Purchased and Activated at least one MBG product and service may participate is MBG Affiliate Program.

1.3 Access to My Buddy Gard is automatically granted if your details do not match those accumulated in a global black list database. The network will use your IP address, email address and possibly your username against the global blacklist. Any Affiliate applying for an account with a free or disposable email address will be subject to a manual approval by My Buddy Gard administrators.

1.4 If your application is accepted, you will become an Affiliate. If your application is rejected, the Agreement will terminate immediately.

2. Account Usage

2.1 As an Affiliate, you will be given access to Affiliate account. You will also be given rights to use the promotional materials and trade marks of Merchants (“Materials”). As long as you comply with the terms of this Agreement, and any terms of a particular Merchant, you can place the Materials wherever you like on your website.

2.2 My Buddy Gard does not support the advertising or placement of advertisements on any sites connected with racist or illegal content.

2.3 My Buddy Gard will at all times attempt to monitor any misuse and will likewise bring it to the attention of the merchant’s advertisement placements. My Buddy Gard operates in full compliance with the CAN-SPAM Act of 2003 and requires its Affiliates to also comply.

2.4 My Buddy Gard may deactivate your account if you have sent spam or engaged in any unsolicited promotional activities.

2.5 Affiliates must abide by the Merchant Terms and Conditions at all times while conducting any form of promotion or advertising relationship via My Buddy Gard.

2.6 My Buddy Gard reserves the right to remove accounts that have remained unverified since creation or have not been accessed in up to 12 months.

2.7 A Merchant may apply particular terms and conditions to how it deals with Affiliates. You must comply with the particular terms of any Merchant you deal with. If you do not wish to comply with those terms, you should deal with different Merchants instead.

3. Affiliate Commissions and Payment

3.1 If you are due to be paid commissions; My Buddy Gard has implemented a monthly payment schedule.

3.2 Every month your account balance will be processed if you have selected automatic payouts and an invoice is generated automatically so we may process the funds.

3.3 We will endeavour to pay any commissions owed to you within 7 – 30 days of receipt of your invoice and with respect to any payments owed to us of those commissions by the relevant Merchant.

3.4 If you earn commissions from a Merchant, and that Merchant does not pay or has not paid us what it owes in relation to those commissions, we do not have to pay those commissions to you until we are paid by the Merchant.

3.5 Commission will be paid to you in Australian Dollars (AUD), irrespective of the reported currency from the merchant. You accept any currency conversion calculation that takes place is accurate and may include third party processing fees.

3.6 Affiliate program balances are combined across all users that generate valid transactions and are not paid out on a client to client basis.

3.7 If a previously sent payment is rejected by an Affiliate or unclaimed and requires to be resent using any one of the payment methods, a AU$15.00 ‘repeat reprocessing’ administration handling fee will be charged to the Affiliate and deducted from the commission payment amount. Any costs incurred or associated with return of a payment will be deducted from the commission payment amount.

3.8 If we cannot get in contact with you using the contact details set out in your application or account settings, and:

a) we cannot pay you commissions because you have provided incomplete or incorrect payment information; or

b) you have not logged in to our website for 12 months

you waive your right to be paid those commissions and you assign (way of future assignment) all of your rights and ownership in any commissions which we are holding to your account.

c) If we are late paying your commissions, you cannot terminate this Agreement on the basis that the delay constitutes a breach of this Agreement.

d) You will not receive any interest on commissions held to your account.

e) To maintain ongoing commissions from My Buddy Gard Affiliate Program, the Affiliate must bring at least one new paying customer per annum.

4. Billing

4.1 You agree that we can raise invoices on your behalf for any of the commissions payable to you during the term of this Agreement. This is known as “self-billing”. Therefore you must not raise invoices for any of these commissions.

4.2 You must notify us immediately or update your account details accordingly if you:

a) no longer have an active ABN;

b) have changed or updated your GST status;

c) transfer your business as a going concern; or

d) become registered under another ABN

4.3 We may engage a third party to issue invoices on your behalf.

6. Affiliate Termination

6.1 My Buddy Gard reserves the right to terminate an affiliate and not pay the accrued balance where the affiliate has been deemed to breach this Agreement or specified Merchant Terms and Restrictions.

6.2 My Buddy Gard, in its sole discretion, may disqualify an Affiliate from participation in the use of any or all portions of the Site & Program if such Affiliate engages in any conduct that My Buddy Gard deems to be illegal, improper, unfair or otherwise adverse to the operation of the Site or detrimental to other users of the Site.

Such improper conduct includes, but is not limited to:

a) falsifying personal information required during account creation;

b) sending spam emails;

c) intentionally trying to defraud or otherwise tamper with the computer programs or Member information comprising the Site

6.3 My Buddy Gard may void and refuse to pay/reimburse monetary sums that an Affiliate has earned or deposited and/or require the return of any monetary sums that an Affiliate may have accumulated if engaged or previously engaged in improper conduct.

6.4 My Buddy Gard may also recover any outstanding fees owed by Affiliates using one or a combination of methods that include deductions to the Affiliates current balance.

6.5 Affiliates further acknowledge that the forfeiture of earnings or deposits shall in no way prevent My Buddy Gard from pursuing other avenues of recourse such as criminal or civil proceedings in connection with such conduct.

6.6 Affiliates may voluntarily close or terminate their account with My Buddy Gard.

6.7 You will not receive any commissions which are earned after the date of termination.

7. Trademarks, Copyrights and Proprietary Rights

7.1 You may not, however, distribute, modify, transmit, reuse, re-post, or use the content of the Site for public or commercial purposes, including the text and images without My Buddy Gard’s written permission.

7.2You should assume that everything you see or read on the Site is copyrighted unless otherwise noted and may not be used except as provided in this Affiliates Agreement or in the text on the Site without the written permission of My Buddy Gard. My Buddy Gard neither warrants nor represents that your use of materials displayed on the Site will not infringe rights of third parties.

7.3 Commission Factory assumes no responsibility, and shall not be liable for, any damages to, or viruses that may infect, your computer equipment or other property on account of your access to, use of, or browsing in the Site or downloading of any materials, data, text or images.

7.4 Any communication or material you transmit or post to the Site by electronic mail or any other method, including any data, questions, comments, suggestions, or the like is, and will be treated as, non-confidential, non-proprietary.

7.5 The Site may now, or hereafter from time to time, contain links to third-party Web sites.  We provide such third-party links only as a convenience to visitors of the Site, and the inclusion of a link does not imply approval or endorsement of the linked site by us. If you decide to leave the Site and access any third-party Web site, you do so at your own risk.

7.6 The trademarks and logos displayed on the Site are registered Trademarks of My Buddy Gard and/or others. Nothing contained on the Site should be construed as granting, by implication, estoppel or otherwise, any license or right to use any Trademark displayed on the Site without the written permission of My Buddy Gard or such third party that may own the Trademarks displayed on the Site. Your misuse of the Trademarks displayed on the Site, or any other content on the Site, except as provided in this Affiliate Agreement, is strictly prohibited. You are also advised that My Buddy Gard will aggressively enforce its intellectual property rights to the fullest extent of the law, including the seeking of criminal prosecution.

8. Limitations of Liability

We will not be liable to you with respect to any subject matter of this agreement under any contract, negligence, tort, strict liability or other legal or equitable theory for any indirect, incidental, consequential, special or exemplary damages (including, without limitation, loss of revenue or goodwill or anticipated profits or lost business), even if we have been advised of the possibility of such damages. Further, notwithstanding anything to the contrary contained in this agreement, in no event shall My Buddy Gard cumulative liability to you arising out of or related to this agreement, whether based in contract, negligence, strict liability, tort or other legal or equitable theory, exceed the total commission fees paid to you under this agreement.

9. Indemnification

You hereby agree to indemnify and hold harmless My Buddy Gard, and its subsidiaries and merchants, and their directors, officers, employees, agents, shareholders, partners, members, and other owners, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable solicitors’ fees) (any or all of the foregoing hereinafter referred to as “Losses”) insofar as such Losses (or actions in respect thereof) arise out of or are based on

a) any claim that our use of trademarks infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party;

b) any misrepresentation of a representation or warranty or breach of a covenant and agreement made by you herein; or

c) any claim related to your site, including, without limitation, content therein not attributable to us

10. Confidentiality

10.1 “Confidential Information” includes any information which is disclosed to you and marked or described as confidential. Confidential Information also includes any information disclosed to you and which ought reasonably be treated as being confidential. Know-how, information about Merchants, data and software are all examples of Confidential Information. If you are unclear on whether any information disclosed to you is Confidential Information, you should ask us whether or not it can be disclosed.

10.2 You must not disclose any Confidential Information to any third parties and you must take all reasonable steps and precautions to prevent disclosure of Confidential Information. You must not use Confidential Information for any purpose other than enjoying your rights or fulfilling your obligations under this Agreement.

10.3 Confidential Information does not include any information which is publicly available, unless it has become publicly available because you have disclosed it. Confidential Information also does not include any information which you receive from a third party, unless that third party is breaching an obligation of confidentiality by disclosing it to you.

10.4 The disclosure of our Confidential Information may cause us harm which cannot be repaired, or may cause us losses which cannot be recovered or compensated. Therefore, if Confidential Information is disclosed in breach of this Agreement, or if disclosure of Confidential Information is threatened, you agree that we can obtain an injunction against you to prevent disclosure. Our right to an injunction is in addition to any other rights we may have to protect our Confidential Information. If the court grants us an injunction, you must pay all of our legal costs of applying for the injunction.

11. Miscellaneous

11.1 My Buddy Gard Affiliates may not refer themselves (‘self referral’) as either Merchants or Affiliates with the aim of receiving the referral commission.

11.2 All referrals must be tracked using our technology, verbal referrals will not be accepted.

11.3 Affiliates that share the same personal/company details, or website details or commission payment details will also be deemed ‘self referral’. Referral commission and any earnings associated with this type of ‘self referral’ will not be paid.

11.4 My Buddy Gard, in its sole discretion will determine the meaning of ‘self referral’.

11.5 My Buddy Gard, in its sole discretion will make payment to an Affiliate if there are no outstanding fraudulent activity claims raised by My Buddy Gard or any of its Members. If appropriate, Affiliate account balances will be adjusted to remedy these claims.

11.6 During the Term of the Agreement and for twelve (12) months thereafter, you as an affiliate shall not:

a) solicit, transfer, or encourage any Advertiser, Client, or third party obtained through the MBG Network, the relationship(s) established or acted upon herein, or otherwise, to transfer to any third party provider or to any in-house products or services that offers similar to those provided by MBG; and/or

12. Agreement and Changes

12.1 The regulations, terms and conditions contained herein represent the complete, final and exclusive agreement between My Buddy Gard and the Affiliate, and supersede all prior agreements, representations and understandings between My Buddy Gard and the Affiliate.

12.2 This Affiliate Agreement may be terminated by My Buddy Gard at any time. However, such termination does not affect the enforceability of the terms and conditions of this Agreement as they relate to acts and omissions during the period prior to such termination.

12.3 My Buddy Gard reserves the right to change the terms and conditions or functionality of My Buddy Gard at any time without notice. We will endeavour at all times to ensure affiliates have been notified when changes have been made to this Agreement. It is also agreed that after notification of Agreement changes, continued use of the My Buddy Gard Network constitutes acceptance of this Agreement. If you do not agree with changes to our Agreement, the Affiliate should cease promotion immediately and close their account.

12.4 The Affiliate acknowledges that if any provision of this Agreement conflicts with any other rule, regulation, term or condition of the Site, the terms and conditions of this Agreement shall govern.