Advertiser Terms and Conditions

PLEASE READ THE FOLLOWING CAREFULLY.

In this document Deaf Start-Ups is also referred to as “Deaf Start-Ups”. “DSU”, “We” “Our” or “Us” and You are also referred to as “Your”, “Merchant”, “Member” or “Advertiser”.

THIS DOCUMENT IS A LEGAL AGREEMENT BETWEEN YOU AND DEAF START-UPS (“the Agreement“).

THE AGREEMENT IS BETWEEN YOU AND DEAF START-UPS AND GOVERNS YOUR USE OF THE DEAF START-UPS ONLINE AFFILIATE MARKETING NETWORK AND DEAF START-UPS SERVICES. TO AGREE TO THESE TERMS AND CONDITIONS, CLICK “you agree.” IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT CLICK “you agree” AND DO NOT USE THE DEAF START-UPS ONLINE AFFILIATE & ADVERTISING MARKETING NETWORK OR ANY DEAF START-UPS SERVICES.

YOUR USE OF THE DEAF START-UPS ONLINE AFFILIATE & ADVERTISING MARKETING NETWORK AND/OR ANY DEAF START-UPS SERVICES IS AN AFFIRMATIVE INDICATION THAT YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THE AGREEMENT.

 

1. Joining the Network

1.1 We operate an Affiliate & Advertising marketing network (the “Network”), which enables advertisers like You (the “Merchants”) to access Our pool of Publishers (the “Affiliates”) to promote your online store, service and/or products. The Network includes  ‘s websites and related web-interfaces, data and software.

1.2 You will submit an application to Us for a merchant account which will be considered by Us and either accepted or rejected. We have absolute discretion whether to accept or reject Your application and in order for Us to make such decision we may ask You to provide Us with more information about You and your product/service.

 

2. Participation in the Network

2.1 As an approved merchant on the Network, You will be wholly responsible for monitoring and managing all aspects of Your merchant account including but not limited to:

2.1.1 Approval or rejection of Affiliates;

2.1.2 Approval or rejection of sales, leads, sign-ups or other such applicable transaction (collectively referred to as “Transactions” and more particularly described in clause 5 below);

2.1.3 Placement and use of Your advertising material (including but not limited to images, text, trade marks, logos, banners, urls) on Affiliates websites (referred to as “Your Merchant Link” and “Your Merchant Links”);

2.1.4 Managing all programs/campaigns (“program” or “programs”) within Your merchant account;

2.1.5 Ensuring there is sufficient credit deposited with DSU to cover your liabilities to DSU and Affiliates (being those Affiliates approved by you (“Approved Affiliates”)) (see clause 2.2 below); and

2.1.6 Monitoring fraudulent or illegitimate activity (see clauses 2.10 to 2.12 below).

DEAF START-UPS bears no responsibility whatsoever for the monitoring and managing of Your merchant account including any program or programs within/connected to Your merchant account.

2.2 You will be liable to pay commissions on Transactions generated by any Approved Affiliates on the Network. Prior to You approving Affiliates on the Network You determine whether the commissions You will pay for each Transaction will be a flat rate or a percentage of the value of the Transaction.

2.2.1 Your merchant account will only remain active whilst you have sufficient credit with Us. You will have sufficient credit with Us if the amount in Your account is equal to or exceeds the total sum of:

2.2.1.1 Commissions that are payable in respect of Transactions generated by any Approved Affiliates whether or not you have approved such Transactions;

2.2.1.2 “Override” fees (see clause 3 below) that are payable to DEAF START-UPS in respect of Transactions generated by any Approved Affiliates whether or not you have approved such Transactions; and

2.2.1.3 Monthly service fees (see clause 3 below) that are payable to DEAF START-UPS.

2.2.2 If Your merchant account has insufficient credit, DEAF START-UPS may deactivate or suspend its operation without notice to you.

2.2.3 In the event that DEAF START-UPS deactivates or suspends the operation of Your merchant account You will not hold DEAF START-UPS liable or responsible for any loss or damage You suffer as a result of that deactivation or suspension.

2.3 We do not guarantee that Your participation as a merchant on the Network:

2.3.1 will result in the successful marketing of Your product and/or service;

nor

2.3.2 that any online traffic to your website will be generated.

2.4 DEAF START-UPS prohibits the use of the Network by Merchants who operate websites containing pornographic, unlawful, defamatory, obscene, harassing, or otherwise objectionable content.

2.5 You will not hold DEAF START-UPS liable or responsible for Your advertising material being placed on an Affiliate’s website which contains pornographic, unlawful, defamatory, obscene, harassing, or otherwise objectionable content. The management and monitoring of the use of Your advertising material on Affiliate websites is Your sole responsibility.

2.6 Should a dispute arise between You and an Affiliate and DEAF START-UPS is requested by You and/or the Affiliate to intervene and assist in resolving the dispute, any such intervention and assistance provided by DEAF START-UPS is without prejudice to DEAF START-UPS’s rights under the terms of the Agreement and DEAF START-UPS will not be held responsible or liable for the result of such intervention and assistance.

2.7 You must not breach anti-spam laws. DEAF START-UPS may terminate the Agreement and deactivate your merchant account if You engage in sending spam or unsolicited promotional activities.

2.8 The top-level domain URL maintained by You in any program or in the specified banner URL landing pages must be identical. This is in order to ensure Transactions are accurately tracked on the Network.

2.8.1 Once a program has been activated the top level domain URL cannot be altered. If a different top level domain URL is specified in either location, DEAF START-UPS reserves the right to terminate the program.

2.9 You must provide timely responses to Approved Affiliates in relation to Your program or programs. All communication with Approved Affiliates should be via the merchant interface on the Network. If You change any terms and conditions in relation to Your program or programs You must inform Approved Affiliates of such changes in a timely fashion via the merchant interface on the Network.

2.10 You will actively manage and monitor Your merchant account and all active programs for fraudulent or illegitimate activity (e.g. use of invalid or stolen credit cards, falsified or duplicate leads, automated purchasing or lead submission).

2.11 DEAF START-UPS has in place automated checking processes that:

2.11.1 cross references the IP addresses from where Transactions originate against certain available blacklists. Any such IP addresses which are found to be blacklisted are brought to Your attention by DEAF START-UPS red flagging those Transactions in Your merchant account. It is then up to You to further investigate the legitimacy of the transaction and/or whether it is fraudulent. DEAF START-UPS is unable to further investigate such Transactions because the data relating to such Transactions is not accessible by DEAF START-UPS (e.g. credit card details, the product/service relating to the transaction, purchaser details, seller details, etc).

2.11.2c ross references affiliate details against certain available blacklists including:

(a) the IP address used to sign up as an affiliate;

(b) the user name of the affiliate account;

(c) the email address used by the affiliate in signing up as an affiliate; and

(d) the IP address used by the affiliate to log into their account.

If any such details are found to be blacklisted, DEAF START-UPS will cancel or deactivate the affiliate’s account.

2.12 Notwithstanding clause 2.11, DEAF START-UPS accepts no responsibility for any fraudulent or illegitimate Transactions or fraudulent or illegal activity by an Affiliate on your Merchant account and You will not hold DEAF START-UPS liable for any loss You suffer as a result of any such fraudulent, illegitimate or illegal Transactions or conduct.

 

3. Merchant Fees

3.1 In consideration for you accessing the Network, You will pay DEAF START-UPS a service fee or “Override” on Transactions as well as a monthly service fee.

3.2 The “Override” is an amount of 25% (inclusive of GST) of the commission paid/payable by You to an Affiliate and is payable by You to DEAF START-UPS at the time of each transaction. DEAF START-UPS will debit Your merchant account at the time of each transaction the amount of any “Override”. For example, if You pay/are liable to pay $1 in commission to an Affiliate, the service fee is 25¢ making a total of $1.25.

3.3 In addition to the “Override”, You are liable to pay DEAF START-UPS, in advance, a monthly service fee in order to initially access the Network and thereafter to maintain access to the Network. The amount of this monthly service fee will vary depending on the level of service You have chosen.

3.4 Failure to pay a monthly service fee or the “Override” fees will result in a suspension of Your merchant account until such time as those fees have been paid and Your merchant account is in put into credit balance (see clause 2.2 above). Continued failure to pay the monthly service fee may result in a permanent suspension of Your merchant account.

3.5 All fees paid to DEAF START-UPS are non-refundable.

3.6 Any additional fees and amounts depend on a range of factors. A full fee schedule/quote that outlines our fees and charges will be provided as part of your invitation to DEAF START-UPS.

 

4. Payment

4.1 Your merchant account must always remain in credit (see clauses 2.1 and 2.2).

4.2 Approved Affiliates will debit Your merchant account the amount of the commissions due by You to them for validated Transactions. In the event that there are insufficient funds in Your merchant account from which Approved Affiliates can effect such payment DEAF START-UPS will not be liable to Approved Affiliates and will not pay Approved Affiliates in respect of such commissions

4.3 In the event that You fail to make payment to DEAF START-UPS for any amounts that become due and payable by You under the Agreement and DEAF START-UPS incurs further legal or other expenses in seeking to recover those amounts from You, You will be liable to DEAF START-UPS for the full amount of any such legal and/or other expense.

 

5. Transactions

5.1 A Transaction occurs when a visitor or viewer of an Approved Affiliate’s website or other promotional method (e.g. email) visits your website and:

5.1.1 immediately buys something or completes another call to action such as filling out a form; or

5.1.2 does not immediately buy something or complete another call to action such as filling out a form but subsequently returns to Your website and does so. However, in this circumstance a Transaction will only occur if the cookie / tracking period has not expired since the Visitor first or subsequently clicked or viewed advertising/creative; and if during that time the visitor clicks on Your Merchant Link or views advertising creative from more than the one Approved Affiliate, the Transaction will be considered to have originated from the Approved Affiliate’s on which the visitor most recently clicked or viewed advertising.

5.2 Approved Affiliates will earn commission for any Transactions which are (subject to clause 5.3) validated by You in Your merchant account, which validation you must not unreasonably withhold. For example, it would be reasonable for You to withhold validating a Transaction that was fraudulent or illegitimate. It is up to You to decide whether or not a Transaction is valid. If an Approved Affiliate does not agree with Your decision not to validate a Transaction that is a matter for You and the Approved Affiliate to deal with.

5.3 Validation of a Transaction which is greater than thirty (30) calendar days old will occur automatically and cannot be disputed or reversed by You.

5.4T he commission rate in place at the time a Transaction occurs is the commission rate applicable to that Transaction regardless of whether it has been validated or not.

5.5 To ensure the integrity of the tracking and Affiliate payment for Transactions driven to the Merchant site, all programs will remain inactive until the relevant tracking codes provided to Merchants for implementation have been verified by DEAF START-UPS to be functioning correctly.

5.6 The DEAF START-UPS tracking code provided to Merchants must not be modified in any way or used in any programming method or with technology that may degrade the integrity of the tracking of Transactions. In the event that DEAF START-UPS determines that You are in breach of this clause, it may terminate any programs for which the tracking code was issued.

5.7 De-duplication of transactions against other marketing channels and affiliate marketing networks must be disclosed before the program goes live and implementation is solely the merchants responsibility. It is agreed that any duplicate commissions paid due to failure to implement the de-duplication technology are not recoverable.

5.8 Exchange rates used to calculate commissions payable are agreed to be accurate and may include exchange fees charged by third party services.

 

6. Merchant Accounts

6.1 You are responsible for providing DSU with creative material and promotional tools with respect to program or programs. Normally this will include as a minimum:

•Five or more Banners;

•Data Feeds (for Merchants with more than 10 products); and

•Coupons, which must be supplied using the correct channels within the merchant interface on the Network

6.2 Merchants agree that they will not decline affiliates in a predatory fashion, or decline for reasons that are unfair. For example, Merchants are not allowed to decline affiliates simply because they are a current Member of one or more other Affiliate networks. Network choice is a freedom given to affiliates and is not to be dictated by a Merchant.

6.3 Merchants agree that some Affiliates are granted a “VIP” status within the network and are therefore not subject to the normal approval process or manual approval. These Affiliates have been proven as ethical and high earners by the network and are granted certain rights.

6.4 You will not hold DEAF START-UPS responsible for Your merchant account and/or program settings or closures and any resulting loss or damage You incur as a result of such settings or closures.

6.5 You are responsible to set and monitor compliance by Approved Affiliates of any terms and conditions which apply to Your program or programs.

6.5.1 You acknowledge that in the absence of any specific terms and conditions regarding the promotional methods/tools You require be used by Approved Affiliates, Approved Affiliates may use any method/tools to promote Your program or programs.

6.5.2 You acknowledge that in the absence of any specific terms and conditions regarding the use by Approved Affiliates of third-party search engines such as Yahoo, Bing, Google, Ask etc (including the use of keywords) to promote Your program or programs, Approved Affiliates may use any third-party search engines without limitations as to the use of keywords to promote Your program or programs.

6.5.3 You must act in good faith and abide by any terms and conditions You set when validating or cancelling Transactions.

6.6 DEAF START-UPS may from time to time request from You information relating to Transactions for the purposes of:

6.6.1 Audits that DEAF START-UPS may carry out on the Network for the purposes of ensure the Network is operating efficiently including the underlying databases and tracking and reporting systems.

6.6.2 Investigating high Transaction cancellation rates relating to Your program or programs. DEAF START-UPS may request Transaction information from You in order to carry out such investigation which information You will not unreasonably withhold.

6.6.3 You must provide DEAF START-UPS with any such information within five (5) business days of receiving a request from DEAF START-UPS which information you must not unreasonably withhold.

6.7 Third party software will not correctly record Transactions on the Network. You agree that You will not rely or nor will You seek to compel DEAF START-UPS to rely on reporting generated by third party software in respect of web traffic (including Transactions) generated via the Network. You acknowledge that reporting generated by third party software will be of no relevance whatsoever to Your obligations under the Agreement.

6.8 During the Term of this Agreement, You shall not solicit any Affiliate or Approved Affiliate, web site, or e-mail provider that is obtained through the Services provided by DEAF START-UPS under this Agreement, nor shall You transfer any Affiliate obtained through the Services provided by DEAF START-UPS under this Agreement to any third party provider or any in-house program substantially similar to the Services being provided by DEAF START-UPS hereunder, and You shall not encourage any such Affiliate to so transfer. In the event You do directly solicit or cause to be transferred any Affiliate, You shall pay DEAF START-UPS what DEAF START-UPS would have otherwise earned had You not violated this provision. Except as expressly set forth above, nothing herein shall be deemed to restrict Merchants from entering into independent strategic partnerships or other agreements with Affiliates, or to prohibit Merchants from advertising, merchandising or promoting its products or services.

 

7. Program Closure and Termination

7.1 The Agreement commences when You submit an application which is accepted by DEAF START-UPS. The Agreement will stay in force until it is terminated in accordance with these terms and conditions. Either You or We can terminate this Agreement by giving the other party one calendar month’s written notice. A termination will subject to this clause take effect on the expiry of such notice of termination.

7.2 Subject to clause 7.3, Your merchant account and all programs will be deactivated or closed on and from the date of termination.

7.3 In the event that the cookie period offered to Approved Affiliates expires after the period of notice stipulated in clause 7.1 but in any event no more than 60 days thereafter (the Residual Cookie Period”), then Termination of the Agreement (and the associated closures of all programs and Your Merchant account) will be effected only after expiry of the Residual Cookie Period. Cookie periods for the purposes of this clause shall be calculated from the date of service of a notice of termination under clause 7.1.

7.4 All Transactions during the Residual Cookie Period shall be dealt with in accordance with the Agreement.

7.5 Merchant programs that have not been made active after a period of one (1) year will be cancelled and the Merchant’s account closed. DEAF START-UPS will take reasonable steps to contact a Merchant before closing a Merchant’s account. In the event that DEAF START-UPS is unable to contact a Merchant and then closes the Merchant’s account, any credit will be forfeited by the Merchant to DEAF START-UPS and become (by way of future assignment) the property of DEAF START-UPS.

7.6I n the event that You do or omit to do something under the Agreement that has the effect of allowing Transactions to not being properly recorded on the Network, any commissions due to Approved Affiliates for such Transactions will still remain payable by You to the Approved Affiliate. You authorize DEAF START-UPS to debit Your merchant account in respect of those commissions and effect payment to the Approved Affiliates.

7.7 Subject to the other provisions in the Agreement, You must not cancel a program within Your merchant account within the first three (3) months of such program being set by You to a “live” status.

7.7.1 The first three (3) months must elapse (starting from the date in which the program went live) before a program can be cancelled.

7.7.2 After the three month (3) period has expired the process of cancellation can begin by giving all Approved Affiliates on the program 30 days notice that the program will be closing.

7.7.3 If You insist on closing down a program within the initial three (3) month period then You agree to forfeit the full amount of any credit balance in Your merchant account. Without prejudice to any other rights We or an Approved Affiliate may have against You, those funds will be applied towards costs incurred by DEAF START-UPS for advertising, promotion, integration, general expenses and any educational material that may have been supplied to You. The funds may also be used to reimburse Approved Affiliates for Transactions until the cookie period has elapsed entirely.

7.8 Either You or We can terminate this Agreement immediately by giving the other party written notice if the other party:

(a)is, or likely to become, insolvent or bankrupt

(b)is unable to pay its debts or negotiates with its creditors; or

(c)appoints an administrator or other insolvency practitioner.

 

8. Terminating an Affiliate from Your Program

8.1 Affiliates are approved by You in Your merchant account in relation to a program or programs in any one of the following ways:

8.1.1 By You manually approving them within 30 days of an Affiliate submitting a request to You for approval; or

8.1.2 Automatically, upon a request by an Affiliate for approval being submitted to Your merchant account, if Your merchant account is set to automatically approval Affiliates; or

8.1.3 Automatically, if neither 8.1.1 nor 8.1.2 applies and more than 30 days have passed after an Affiliate has submitted a request to You for approval.

8.2 You may terminate an Approved Affiliate from Your merchant account or from any program or programs at any time by giving the Approved Affiliate written notice of the termination and informing Us so that we may process the termination on the Network. In the event of you terminating an Approved Affiliate from Your merchant account you must:

8.2.1 Give DEAF START-UPS 24 hours (excluding weekends and public holidays) in order to process the termination on the Network; and

8.2.2 Give 7 days prior written notice to the Approved Affiliate of your intention to terminate; or

8.2.3 Give less than 7 days prior written notice to the Approved Affiliate of your intention to terminate, in circumstances where the Approved Affiliate is in breach of any fundamental terms and conditions You have imposed on the Approved Affiliate in respect of a program or programs.

8.3 In relation to clause 8.2.1, You must notify Your DEAF START-UPS point of contact or Account Manager of the termination.

8.4 DEAF START-UPS is not responsible for an Approved Affiliates’ non-compliance with a termination by You.

8.5 DEAF START-UPS may terminate an Approved Affiliate from Your program or programs in DEAF START-UPS’s sole discretion and is not obligated to notify You of their removal. In doing so DEAF START-UPS will act in good faith and use its best endeavours to give notice to You of the need to terminate an Approved Affiliate before doing so.

 

9. Refund Policy

9.1 Any refund due to you by DEAF START-UPS is subject to Your merchant account remaining in credit. DEAF START-UPS’s “Override” is non-refundable.

9.2 Banner design fees, banner hosting and Data feed service fees and other promotional advertising service fees are non refundable.

9.3 Account balance refunds are issued back to the Bank Account or Credit Card used to make the initial purchase as advised by You.

9.4 DEAF START-UPS is under no obligation nor will You hold DEAF START-UPS responsible to compensate You for financial losses (including loss of profits) as a result of Network software malfunctions, banking software malfunctions, payment gateway malfunctions or inadvertent Merchant selections.

9.5 DEAF START-UPS will not be held liable or responsible to repay, reimburse any bank fees or charge backs that You may be subjected to due to use of the DEAF START-UPS service and software or as a result of any misuse by Approved Affiliates.

 

10. Liability of DEAF START-UPS

10.1 DEAF START-UPS is not liable for any losses of any kind incurred by You resulting from:

10.1.1 The by use by You of any service provided by DEAF START-UPS;

10.1.2 Any act or omission by an Affiliates or Approved Affiliate;

10.1.3 The closure of Your merchant account;

10.1.4 The termination of an Approved Affiliate / Merchant relationship;

10.1.5 The malfunction or failure of DEAF START-UPS ‘s systems, the Network or DEAF START-UPS’s service offering due to matters including, but not limited to, the failure of DEAF START-UPS’s or any other entity’s software, hardware or communications technology or any part thereof; or

10.1.6 Delays, losses, errors, or omissions resulting from failure of any telecommunications or any other data transmission system, any act of God, any outbreak of hostilities, riot, civil disturbance, acts of terrorism, the acts of Government or authority (including refusal or revocation of any license or consent), fire, explosion, flood, theft, malicious damage, strike, lockout or industrial action of any kind..

10.2 All services provided by DEAF START-UPS must be used strictly for lawful purposes only.

10.3 DEAF START-UPS does not censor, edit or take any responsibility whatsoever for Approved Affiliate web site content or communications from the Affiliate web site.

10.4 The Network may now, or hereafter from time to time, contain links to third-party web sites. We do not control, investigate, monitor or check such web sites. We are not responsible for the computer programs available from, content in or opinions expressed at such web sites.

10.5 We provide such third-party links only as a convenience to visitors of the Network, and the inclusion of a link does not imply approval or endorsement of the linked site by Us.

10.6 If You decide to leave the Network and access any third-party web site, You do so at your own risk. DEAF START-UPS will not be responsible for any injury or any liability to You resulting from web site content or communication that may be offensive, misleading or illegal.

10.7 DEAF START-UPS is not liable or obligated to support or provide any technical advice relating to any Third Party software being used.

 

11. Trademarks, Copyrights and Proprietary Rights

11.1 DEAF START-UPS claims copyright in relation to the software and all website content (excluding Affiliate websites) comprising the Network and otherwise owned or operated by DEAF START-UPS.

11.2 You may not, however, distribute, modify, transmit, reuse, re-post, or use the content of the Network for public or commercial purposes, including the text and images without DEAF START-UPS’s written permission.

11.3 You should assume that everything You see or read on the Network is copyrighted unless otherwise noted and may not be used without the written permission of DEAF START-UPS. DEAF START-UPS neither warrants nor represents that your use of materials displayed on the Network will not infringe rights of third parties.

11.4 Any communication or material You transmit or post to the Network 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. Anything You transmit or post may be used by DEAF START-UPS or its Affiliates for any purpose, including, but not limited to, reproduction, disclosure, transmission, publication, broadcast and posting. Furthermore, You consent to the posting and transmission of any data from your online shopping cart, online store and any other source. DEAF START-UPS is free to use any data, ideas, concepts, know-how or techniques contained in any communication You send to the Network for any purpose whatsoever including, but not limited to, developing, manufacturing and marketing products using such information, without any additional compensation to You.

11.5 The trademarks and logos displayed on the Network are registered Trademarks of DEAF START-UPS and/or others. Nothing contained on the Network should be construed as granting, by implication, estoppel or otherwise, any license or right to use any Trademark displayed on the Network without the written permission of DEAF START-UPS or such third party that may own the Trademarks displayed on the Network. Your misuse of the Trademarks displayed on the Network, or any other content on the Network, except as provided in the Agreement, is strictly prohibited. DEAF START-UPS will aggressively enforce its intellectual property rights to the fullest extent of the law.

 

12. Indemnification

12.1 You hereby agree to indemnify and hold harmless DEAF START-UPS, 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

(i)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,

(ii)any misrepresentation of a representation or warranty or breach of a covenant and agreement made by You herein, or

(iii)any claim related to your site, including, without limitation, content therein not attributable to Us.

(iv)any fraudulent activity that may occur whilst using the service of DEAF START-UPS.

(v)any fees or losses incurred as a result of using the Network.

12.2 DEAF START-UPS has not reviewed all the sites linked to the Network and is not responsible for the content of any offsite pages or any other sites linked to the Network.

12.3 DEAF START-UPS assumes no responsibility, and shall not be liable for, any damages to, or viruses that may infect, Your computer equipment or other property as a result of Your access to, use of, or browsing in the Network or downloading of any materials, data, text or images.

 

13. Confidentiality

13.1 “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 on the Network that is not otherwise accessible by the general public and which ought reasonably be treated as being confidential. Knowledge, information about Affiliates and Approved Affiliates, 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 it can be disclosed.

13.2 By entering this Agreement, You consent to Us publishing your name on Our websites. You also consent to Us publishing the information You provide to Us on Our websites, unless You notify Us that that information is confidential or that information ought reasonably be treated as being confidential.

13.3 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 the Agreement.

13.4 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.

13.5 The disclosure of Our Confidential Information may cause Us irreparable harm, or may cause Us losses which cannot be recovered or compensated. Therefore, if Confidential Information is disclosed in breach of the 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.

 

14. Miscellaneous

14.1 The Agreement will be interpreted so as to give effect to the intention of the parties and the spirit of the Agreement when taken as a whole.

14.2 In the Agreement, where any items are listed or given as examples, the list and examples are not definitive. Therefore, items similar to the listed items or examples may also be included. Where We use the singular tense in the Agreement, We are also referring to the plural tense (and vice versa). When We refer to an individual, We are also referring to companies and other legal entities.

14.3 The Agreement is personal to You. You may not assign or transfer any of your rights or obligations unless We agree in writing. We can assign or transfer any of Our rights or obligations without obligation to give You notice.

14.4 Neither party will be liable under the Agreement if it is prevented from performing its obligations by anything beyond its reasonable control.

14.5 The Agreement will not constitute a partnership or joint venture of any kind between You and Us, nor between any party and the agent of another party for any purpose. You have no authority to bind Us and We have no authority to bind You.

14.6 Third parties don’t have any rights under the Agreement.

14.7 The Agreement is the whole agreement between You and Us. Any older agreements between You and Us relating this subject matter are replaced by the Agreement. Any terms or representations which are not included in this Agreement are not enforceable, but We are not limiting Our liability for fraud or fraudulent misrepresentation.

14.8 You agree to pay any, and all of DEAF START-UPS’s legal expenses incurred as a result of a dispute between Us and You regardless of rulings and decisions.

14.9 You agree that DEAF START-UPS may identify You as a DEAF START-UPS Merchant in its client lists and other marketing materials, and that DEAF START-UPS may issue a press release approved by You (which approval shall not be unreasonably withheld) announcing the establishment of the relationship between You and Us. Any other uses of Your name and/or logo shall require DEAF START-UPS’s prior written consent.

 

15. Dispute Resolution

15.1 Each Party agrees to comply with the dispute resolution procedure set out in this clause.

15.2 If a Dispute arises between the Parties, the complainant must set out in writing:

(a)the nature of the dispute;

(b)the outcome the complainant is seeking; and

(c)what action the complainant thinks will settle the dispute.

15.3The Parties will make every effort to resolve the dispute by mutual negotiations.

15.4 If the Parties are unable to reach a resolution of the dispute within twenty-one (21) days, or such other period as is agreed in writing by the Parties, any of the Parties may by written notice, advise the other party that it seeks to have the dispute resolved by mediation (a “Mediation Notice”).

15.5 Within twenty-one (21) days after the date of service of the Mediation Notice, the Parties may refer the matter to a mutually agreed mediator. If no agreement can be reached as to the identity of the appropriate mediator, then, at the written request of either of the Parties, President of the Queensland Law Society must refer the Dispute to a mediator (“Mediator”). That referral must be made within fourteen (14) days of receipt of the request.

15.6 The Mediator and the Parties must act to commence the mediation within twenty-eight (days) of the Mediator’s appointment.

15.7 The Mediator will have the right to determine procedures and may or may not allow the appearance of lawyers on behalf of the Parties and may call for other expert assistance.

15.8 The Mediator must be satisfied that the Parties have made a determined and genuine effort to resolve the Dispute and have co-operated with the Mediator.

15.9 The proceedings of the Mediator must be as informal as is consistent with the proper conduct of the matter and allow the Mediator to communicate privately with the Parties or with their lawyers.

15.10 The Parties agree that:

(a)everything that occurs before the Mediator will be in confidence and closed session;

(b)all discussions shall be without prejudice; and

(c)no documents brought into existence specifically for the purpose of the mediation process will be called into evidence in any subsequent litigation by any of the Parties.

15.11 It will be the role of the Mediator to act fairly, in good faith and without bias with the purpose of seeking a resolution of the Dispute and to treat all matters in confidence.

15.12 Each of the Parties must have the opportunity to adequately present their case.

15.13 The Mediator must have regard to the fairness and reasonableness of any matters pertaining to a Dispute.

15.14 The Mediator must deal with any matter as expeditiously as possible, but no later than fourteen (14) days after referral of the Dispute to the Mediator.

15.15 The Parties shall each pay their own costs of and incidental to the mediation including, without limitation, their own legal costs, airfares, ground transport, accommodation, meals and expenses. The Parties will each bear the costs of the Mediator on an equal basis.

15.16 The decision of the Mediator will be final and the Parties grant immunity from liability to the Mediator.

15.17 Subject to the dispute resolution procedure contained in this clause, each of the Parties agrees that a Party will not (and they will not be entitled to) and hereby waive their rights to commence or maintain any action or legal proceeding in any court of law or any arbitration in respect of a Dispute until after the dispute resolution procedures contained in this clause have been observed. However, nothing in this clause will deny any Party the right to seek any injunctive relief (whether temporary, interim or final relief) from an appropriate court where failure to obtain that relief would cause or is likely to cause irreparable damage to the relevant party concerned.

15.18 Each of the Parties agree that if there is a breach or threatened breach by any party of any provision of this clause, the other Party would be entitled to an injunction restraining them from committing any breach and/or further breach of this clause and/or to a stay of proceedings, without having to show or prove any actual damage has been sustained by any Party.

 

16. Goods and Services Tax

16.1 In this Agreement “GST” means any Goods and Services Tax, Value Added Tax, Revenue Value Tax, or any other tax or charge of a like nature levied or imposed in relation to a supply (or deemed supply) of any goods, property (real or otherwise), service or any other thing.

16.2 If GST is levied or imposed on or in respect of any supply made under or in relation to this Agreement for which consideration is a monetary payment, then the amount payable for that supply is increased by the rate at which that GST is levied or imposed.

 

17. Agreement and Changes

17.1 The regulations, terms and conditions contained herein represent the complete, final and exclusive agreement between DEAF START-UPS and You, and supersede all prior agreements, representations and understandings between DEAF START-UPS and You.

17.2 The Agreement may be terminated by DEAF START-UPS at any time. However, such termination does not affect the enforceability of the terms and conditions of the Agreement as they relate to acts and omissions during the period prior to such termination.

17.3 DEAF START-UPS reserves the right to change the terms and conditions of the Agreement by giving you reasonable notice of the change. You agree that fourteen (14) days notice amounts to reasonable notice. It is also agreed that after any Agreement changes, Your continued use of the Network constitutes acceptance of such changes to the Agreement. If You do not agree with changes You may terminate the Agreement in accordance with Clause 7.

17.4 DEAF START-UPS reserves the right to change the functionality of the Network at any time without notice.

17.5 If any provision of the Agreement conflicts with any other rule, regulation, term or condition of the Network, the terms and conditions of the Agreement shall govern.

17.6 In the Agreement unless the context otherwise requires:

(a)Words denoting the singular number include the plural and vice versa;

(b)Words denoting any gender include all genders;

(c)Where a word or phrase is defined, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;

(d)Words denoting natural persons include bodies corporate and unincorporate and vice versa;

(e)References to clauses and schedules are to the clauses of and schedules to the Agreement;

(f)Headings are for convenience only and may not affect interpretation;

(g)References to any party to the Agreement include the party’s successors and permitted assigns;

(h)References to any agreement or instrument include references to that agreement or instrument as amended, novated, supplemented, varied or replaced from time to time; and

(i)References to any legislation or to any provision of any legislation include any modification or re-enactment of that legislation or any legislative provision substituted for, and all delegated legislation and statutory instruments issued under, that legislation or provision.

17.7 Where any provision of the Agreement is rendered void, unenforceable or otherwise ineffective by operation of law, such avoidance, unenforceability or ineffectiveness that provision is severed from the Agreement and will not affect the enforceability or effectiveness of the remaining provisions.

17.8 The Agreement is governed by and must be interpreted in accordance with the laws for the time being in force in London, UK and each party submits to the non-exclusive jurisdiction of the courts of or exercising jurisdiction in that City.

 

18. Exclusivity

18.1 You agree that if you or by any communication have chosen “exclusive” subscription package in your account to be bound by the exclusive terms outlined below:

18.1.1 You agree to exclusively and solely use DEAF START-UPS it’s technology and services for all affiliate and performance marketing activity in the UK, USA and Europe regions.

18.1.2 You agree to within (30) days of this agreement being in effect to discontinue any current commercial relationships with any affiliate marketing providers (affiliate networks) that conduct business activity in the same market you wish to engage DEAF START-UPS to target.

18.1.3 The exclusivity and agreement period will be active while the “exclusive” subscription package is in effect and for a minimum period of six (6) months from the program launch date.

18.1.4 During the agreement period if you close your program or terminate this agreement for any reason and at the date of termination the “exclusive” subscription package was in effect, you agree not to enter into a direct or indirect commercial agreement with any affiliate or performance marketing providers (e.g. an affiliate network) for twelve (12) months without first contacting us to reactivate the relationship.

 

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