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1. Definition

1.1 In this Affiliate Agreement, we define the following words or phrases:

"Affiliate" is the company or person who send traffic through an affiliate link on affiliate website to ModelAgency.com.au, in exchange for commission when referred customers purchase product or service on ModelAgency.com.au; the party who is entering into this Affiliate Agreement with ModelAgency.com.au;

"Affiliate Tracking System" is the mechanism of measuring the number of connections made to ModelAgency.com.au via its Links;

"Chargeback" means any sum due or paid to an Affiliate in respect of a Referral which is repayable on the basis that either the sale in question was never concluded or the lead in question was never realised;

"Commencement Date" is the date afffiliate application is approved, upon which this Agreement comes into full force and effect;

"Commission" is the rate of commission specified on ModelAgency.com.au in relation to any Referrals;

"Intellectual Property Rights" means all trade marks (whether registered or unregistered), logos, trade names and copyright and other similar rights (whether now known or in the future created) both in Australia and all other countries of the world.

"Referrals" are leads and/or sales (as the case may be) that are specified on ModelAgency.com.au as being the basis on which any Commission is paid;

In this document "this Affiliate Agreement" is the agreement made between ModelAgency.com.au and the Affiliate which shall consist of the provisions of this document and any terms and conditions that are intended to be binding on the Affiliate which are set out by ModelAgency.com.au from time to time.

2. the Affiliate

2.1 As a condition of ModelAgency.com.au entering into this Agreement, the Affiliate shall:

(a)
complete and submit to ModelAgency.com.au all applicable Affiliate Forms; and

(b) be the registered owner or holds management right of the domain name directly identifying the Affiliate Website. The Affiliate shall not have access to a URL which simply directs Internet users to ModelAgencyc.om.au.

2.2 The Affiliate shall, upon the Commencement Date, select a password that (in conjunction with the Affiliate ID) permits the Affiliate access to the Affiliate Section of ModelAgency.com.au. The Affiliate shall use its best endeavours to keep the password secure and shall immediately notify ModelAgency.com.au by email at admin@modelagency.com.au if the Affiliate believes that any unauthorised use has or may be made of such password.

2.3 The Affiliate shall, at all times, provide to ModelAgency.com.au, free of charge, accurate, complete and non-misleading information reasonably required by ModelAgency.com.au for the purposes of providing the Service and, for the avoidance of doubt, this condition shall apply to all information provided by the Affiliate on the Affiliate Forms.

2.4 The Affiliate shall not use a Prohibited Site for the purpose of making any Referrals.

2.5 The Affiliate shall not use any information or data arising from the provision of the Service by ModelAgency.com.au for the sending of unsolicited bulk email (sometimes known as spam) and, in the event that the Affiliate breaches or procures a breach of this condition, ModelAgency.com.au may, in its absolute discretion, suspend the payment of all or any part of the Commission.

2.6 The Affiliate shall ensure that the Affiliate Website does not infringe any applicable laws, regulations and does not contain any material which is obscene, ,offensive, defamatory, threatening, menacing, blasphemous, or in breach of any third party Intellectual Property Rights or liable to incite racial hatred.

2.7 The Affiliate shall immediately notify ModelAgency.com.au by email at admin@modelagency.com.au if the Affiliate becomes aware of any allegation that content on the Affiliate Website which may be in breach of condition

2.8 The Affiliate shall not, in any circumstances, edit, amend, modify or otherwise alter any material provided by ModelAgency.com.au to the Affiliate under this Agreement including, for the avoidance of doubt, the referral Links.

2.9 The Affiliate acknowledges that the Affiliate shall not prejudice, breach or act in a manner which is inconsistent with the Intellectual Property Rights and other rights of ModelAgency.com.au and, except only to the extent set out in this Agreement, the Affiliate shall not have or obtain any rights in relation to the Intellectual Property Rights or any other rights of ModelAgency.com.au.

2.10 The Affiliate shall indemnify ModelAgency.com.au against all damages, losses and expenses arising as a result of any claim or action that materials on the Affiliate Website infringe any Intellectual Property Rights belonging to ModelAgency.com.au.

3. the Affiliate Program

3.1 ModelAgency.com.au hereby grants to the Affiliate, a worldwide, non-exclusive, royalty free, non-transferable licence to display the Referral Links on the Affiliate Website.

3.2 In the context of overseeing and administering the Service, ModelAgency.com.au may monitor the Affiliate Website and any links from it.

3.3 ModelAgency.com.au shall use its reasonable endeavours to check that the Affiliate Tracking Service has not, for whatever reason, been deleted or removed from ModelAgency.com.au or deactivated or tampered with in any way.

3.4 The terms and conditions relating to the payment of the Commission are set out on Modelagency.com.au affiliate admin pages.

3.5 The Merchant only recover any Chargeback from the Affiliate if the Chargeback event both occurs and is notified to the Merchant in writing within 21 (twenty-one) working days of the end of the calendar month in which the applicable Referral took place.

4. the Merchant

4.1 ModelAgency.com.au shall post all affiliate program details and the relevant commission terms on its Website and the Affiliate may decide whether to act as an affiliate to Modelagency.com.au's at the affiliate's sole discretion.

4.2 Acting as an affiliate to Modelagency.com.au shall require the Affiliate to place the relevant affiliate Link supplied by ModelAgency.com.au on the Affiliate Website and to generally comply with the terms of this Agreement.

4.3 ModelAgency.com.au shall use its reasonable endeavours to supply and make available on its Website updated information regarding its marketing and promotional campaigns including changes thereto.

4.4 The Affiliate may place or remove any Affiliate Link on or from the Affiliate Website as it thinks fit.

5. Restrictions and Notifications

5.1 ModelAgency.com.au shall, by giving no less than 14 days notice to the Affiliate and posting the same on its website, send the Affiliate by email to the Specified Email Address any additional terms and conditions or changes to the way in which the Service shall be provided that are likely to materially affect the Affiliate's position.

5.2 The Affiliate undertakes not to collect and/or process Personal Data (as defined in the Data Protection Act 1998) from any of Modelagency.com.au's customers.

5.3 The Affiliate confirms to ModelAgency.com.au that the Affiliate is not a private individual under 18 (eighteen) years of age and none of the sites on which the Affiliate places any Affiliate Links shall be a Prohibited Site.

6. Warranties

6.1 ModelAgency.com.au hereby warrants to the Affiliate that (a) it will perform the Services with due care and skill and in a professional manner; and (b) it has full power and authority to enter into and perform this Agreement.

6.2 The Affiliate hereby warrants to ModelAgency.com.au that (a) it has full power and authority to enter into and perform this Agreement; (b) all information provided by the Affiliate shall be complete, accurate and non-misleading; (c) it will comply with all its duties under any data protection laws and regulations applicable to the Affiliate Website; (d) its performance of its obligations under this Agreement will not infringe the Intellectual Property Rights of any third party; (e) none of the information or materials supplied by the Affiliate to ModelAgency.com.au shall be libellous, obscene, or abusive nor shall it breach any law or regulation or give rise to any legal claims of any sort.

6.3 Subject to condition 6.1, all conditions, warranties, representations or other terms concerning the supply of Service which might otherwise be implied or incorporated into this Agreement or any collateral contract, whether by statute, common law, custom or otherwise are hereby expressly excluded to the fullest extent permitted by law.

6.4 Subject to the remaining terms of this Agreement, ModelAgency.com.au does not warrant that the provision of the Service or access to ModelAgency.com.au (or any part of it) will be uninterrupted or error free .

6.5 ModelAgency.com.au gives no warranty or representation in respect of the commercial benefit or amount of Commission to be derived from the use by the Affiliate of the Services or that the provision of the Service and the Affiliate Tracking System will be uninterrupted or error free.

7. Limitations of liabilities and indemnity

7.1 SUBJECT TO CONDITIONS 7.2 AND 7.3 BELOW ModelAgency.com.au's TOTAL LIABILITY TO THE AFFILIATE INCLUDING IN CONTRACT AND TORT (INCLUDING THE TORT OF NEGLIGENCE) SHALL NOT EXCEED &AUD 2,500.00 (FIVE THOUSAND AUSTRALIAN DOLLARS).

7.2 None of the limitations and exclusions of liability set out in this Agreement shall apply: (a) in respect of death or personal injury caused by a party's negligence (for which no limit of liability shall apply); or (b) in the case of fraud; or (c) in respect of any breach of the terms implied by Sales of Goods Act and Supply of Goods and Services Act; or (d) any other liability which cannot be limited or excluded under applicable law.

7.3 Notwithstanding anything else in this Agreement, ModelAgency.com.au shall not be liable to the Affiliate for loss of profits, contracts, loss of reputation, loss caused by any third party deleting, removing, deactivating or tampering with the Affiliate Tracking Service or other indirect or consequential loss whether arising from negligence, breach of contract or howsoever.

7.4 The Affiliate shall immediately indemnify ModelAgency.com.au against all proceedings, fees, expenses, payments, liabilities, injury, costs and damages arising out of:

(a) the breach by the Affiliate of any of its obligations under this Agreement; and

(b) any express or implied warranties, representations, confirmations or acknowledgements that are given by the Affiliate and prove to be untrue

7.5 Neither party shall be liable to the other for any force majeure event being any situation (other than a failure to pay moneys due to the other party) in which it fails to comply with its obligations under this Agreement due to anything beyond its reasonable control.

8. Data collection, disclosure and confidentiality

8.1 The Affiliate confirms that the following information may be posted on Modelagency.com.au:

(a) the Affiliate's identity as one of the entities that has subscribed as an affiliate; and

(b) any information (other than confidential information) that is submitted by the Affiliate to ModelAgency.com.au.

8.2 The Affiliate confirms that in order to enable ModelAgency.com.au to improve and/or in order to promote or market the Affiliate Program ModelAgency.com.au may produce statistics or summaries relating to the use of the Program; and ModelAgency.com.au may contact the Affiliate by email, telephone or post for feedback regarding the Program including any ways in which it might be improved, in relation to the affiliate programme matters at any time. None of the information referred to in this condition 7.2 shall identify the Affiliate.

8.3 Each party agrees and undertakes that both before and following termination of this Agreement for whatever reason it shall keep confidential and shall not use for its own purposes, or without the prior written consent of the other party, disclose to any third party, any information disclosed to it in connection with this Agreement (whether orally or in writing), and which is expressly stated or marked as being confidential or which ought reasonably to be treated as such, unless such confidential information is public knowledge other than as a result of a breach of this condition, has been independently acquired from a third party without restriction on disclosure, is required by law or any regulatory body or is required to be disclosed for the purposes of litigation by or against either party.

9. Term and termination

9.1 This Agreement shall commence on the Commencement Date and it shall continue for an initial period of one year ("the Initial Term") and shall continue thereafter for further periods of one year unless and until terminated by either party at any time with immediate effect.

9.2 The termination of this Agreement shall not limit the enforceability of any of the rights or obligations of the parties that accrued before the termination date.

9.3 Upon the termination of the Agreement, the Affiliate shall immediately remove all the Affiliate Links from the Affiliate Website and, for the avoidance of doubt, the Affiliate shall not be entitled to receive any Commission on any Referrals made after the termination date.

9.4 The Affiliate shall acquire no rights following the termination of this Agreement to use Intellectual Property Rights of ModelAgency.com.au including domain names or any text, or images, banners or any other works created by or for ModelAgency.com.au.

9.5 Conditions 5.3, 6,7 and 8 shall survive the termination of this Agreement.

10. General

10.1 The terms and conditions of this Agreement shall apply as between the parties in respect of the subject matter to the exclusion of all other terms and conditions (including any terms and conditions that the Affiliate purports to apply).

10.2 This Agreement may not be assigned by the Affiliate without ModelAgency.com.au's prior written consent.

10.3 ModelAgency.com.au shall be entitled to appoint any sub-contractor for the provision of the Services.

10.4 This Agreement shall be binding upon and enure for the benefit of the successors in title of the parties hereto.

10.5 If any provision in this Agreement shall in whole or in part be held to any extent to be illegal or unenforceable under any enactment or rule of law then that provision or part shall to that extent be deemed not to form part of this Agreement and the enforceability of the remainder of this Agreement shall not be affected.

10.6 ModelAgency.com.au and the Affiliate are each independent contractors with respect to each other and nothing in the Agreement shall create any association, partnership, joint venture or agency relationship between them.

10.7 ModelAgency.com.au shall not be liable to the Affiliate for loss arising from or in connection with any representations (except fraudulent), agreements, statements or undertakings made prior to the date of execution of this Agreement other than those representations, agreements, statements or undertakings confirmed by a duly authorised representative of ModelAgency.com.au in writing or expressly incorporated or referred to in this Agreement.

10.8 This Agreement is subject to the laws of Australia and shall be subject to the non-exclusive jurisdiction of the Australian courts.


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