Effective Date: 20th November 2020
Company Name: BlisterPod Pty Ltd / BlisterPod LLC
Primary Websites: www.blisterprevention.com.au / www.blisterprevention.us
THE AGREEMENT: This Affiliate Agreement (hereinafter called this “Agreement“) is provided by the named above company (hereinafter referred to as “BlisterPod”). Our primary websites are located at the address listed above. This Agreement is a legal document between you and BlisterPod that describes the affiliate relationship we are entering into. This Agreement covers your responsibilities as an affiliate and our responsibilities to you. Please ensure you read and understand the entirety of this Agreement, as well as have a lawyer’s assistance if you desire, because each of the terms and conditions of this Agreement is important to our working relationship.
The parties referred to in this Agreement shall be defined as follows:
a) BlisterPod/Us/Our/We: The words “us”, “we”, “our” or “BlisterPod” refer to BlisterPod Pty Ltd / BlisterPod LLC will be referred to as “BlisterPod” under this Agreement. BlisterPod also includes all of its employees or legal agents.
b) You/your/Affiliate: The words “Affiliate”, “you” or “your” refer to the Affiliate or the company requesting to participate in BlisterPod’s Affiliate Program.
c) Parties: Collectively, the parties to this Agreement (BlisterPod and you) will be referred to as “Parties” or individually as “Party”.
d) Affiliate Program: The program set up by BlisterPod for the affiliates as described under this Agreement.
e) Affiliate Application: The fully completed form which must be provided to BlisterPod for consideration of the Affiliate’s inclusion in the Affiliate Program.
f) Website: This refers to the BlisterPod’s primary websites mentioned or noted above.
g) Affiliate Site: This refers to the website of the Affiliate in which the Links will be posted.
2) ASSENT & ACCEPTANCE
By submitting an application to our Affiliate Program, you warrant that you have read and reviewed this Agreement and that you agree to be bound by it. If you do not agree to be bound by this Agreement, please refrain from the Website immediately, and do not submit an application to our Affiliate Program. This Agreement specifically incorporates by reference any terms and conditions and policies, which we may have on our Website.
3) AFFILIATE PROGRAM SIGN-UP
In order to sign-up for our Affiliate Program, you will first be asked to submit an Affiliate Application to join. The Affiliate Application may be found at the following website pages: http://blisterprevention.com.au/affiliates or https://blisterprevention.us/affiliates.
Submitting an Affiliate Application does not guarantee inclusion in the Affiliate Program. We evaluate each and every application and are the sole and exclusive decision-makers on Affiliate acceptance. If we choose not to allow your inclusion in the Affiliate Program, we will attempt to notify you in a reasonable manner. If you do not hear from us within a reasonable time frame, please consider your application rejected. We are not obligated to provide you with any explanation for the rejection, but please be advised we may reject applicants for any reason or manner, including but not limited to a website or social media page which violates our acceptable use policy, as described under this Agreement.
If your Affiliate Application is rejected, you may not reapply. If your Affiliate Application is accepted, each of the terms and conditions in this Agreement applies to your participation. We may also ask for additional information to complete your Affiliate Application or for you to undertake additional steps to ensure eligibility in the Affiliate Program.
This Agreement does not create an exclusive relationship between you and us. You are free to work with similar affiliate program providers in any category. This Agreement imposes no restrictions on us to work with any individual or company we may choose.
5) AFFILIATE PROGRAM
The Affiliate Program shall only apply to products from ENGO and BlisterPod’s brands. Depending on the country of your operation (and other pre-existing agreements), the Affiliate Program may only apply to certain products from both brands. Blisterpod will communicate the applicable products to you upon accepting your Affiliate Application.
After your acceptance in the Affiliate Program, you must ensure your account is set up thoroughly, including contact information and PayPal payout information.
Please be advised that the below is a general description of the Affiliate Program. Everything contained in this subsection is subject to the specific terms and conditions throughout the rest of this Agreement.
We will provide you with a specific affiliate link (or links) which correspond to certain products we are offering for sale (collectively, the “Links“). The Links will be keyed to your identity and will send online users to BlisterPod’s Website. You hereby agree to fully cooperate with us regarding the Links and that you will explicitly comply with all of the terms of this Agreement for the promotion of the Links at all times. We may modify the Links at any time and notify you if we do so. You agree to only useLinks which are priorly approved by us and to display the Links prominently on your website or social media page (collectively, the “Affiliate Site“), as described in your Affiliate Application.
Each time an individual purchases a product or service advertised through the Links posted on the Affiliate Site, and we determine it to be a Qualified Purchase (described below), you will be eligible to receive 20% (twenty per cent) commission of the sale of such product or service.
6) SPECIFIC TERMS APPLICABLE
We will determine whether a payout is permissible in our sole and exclusive discretion. We reserve the right to reject clicks and/or sales that do not comply with the terms and conditions of this Agreement.
Processing and fulfilment of orders will be our responsibility. We will also provide real-time data regarding your account with us through the portal on which you log into the Website.
As described above, in order to be eligible for payout, user purchases must be “Qualified Purchases.” Qualified Purchases, under this Agreement:
a) Must not be referred by any other partner or affiliate links of BlisterPod (in other words, Qualified Purchases are only available through your specific Links);
b) May not be purchased by an already-existing partner or affiliate of BlisterPod;
c) May not be purchased prior to the Affiliate joining the Affiliate Program;
d) May only be purchased through a properly-tracking Affiliate Link;
e) May not be purchased by a customer in violation of any of our legal terms or Acceptable Use Policy;
f) May not be fraudulent in any way, in BlisterPod’s sole and exclusive discretion;
g) May not have been induced by the Affiliate offering the customer any coupons or discounts;
7) PAYOUT INFORMATION
Currently, BlisterPod uses PayPal as the method of payout. Payouts will only be available when BlisterPod has your current PayPal email address. For any changes in your address, you must notify us immediately, and we will endeavour to make the changes to your payout information as soon as possible.
Payouts for a certain month will be available on the 1st day of the second month after they accrue. For example, the payouts for the month of January will be available for withdrawal on the 1st day in the month of March.
We explicitly reserve the right to change payout information in our sole and exclusive discretion. If we do so, you will be notified via your email address.
For any disputes as to payout, BlisterPod must be notified within 30 (thirty) days of your receipt of the payout. We will review each dispute notification as well as the underlying payout transaction to which it is related. Disputes filed after 30 (thirty) days of payout will not be addressed.
You may log into your account with us to review reports related to your affiliation, such as payout reports and qualified click and/or Purchase information. Please be advised, however, that not all listed qualifying clicks and/or purchases have been fully reviewed for accuracy in the reports viewable by you in real-time and therefore may be subject to change prior to payout.
9) TERM, TERMINATION & SUSPENSION
The term of this Agreement will begin when we accept you into the Affiliate Program and shall end when your participation in the Affiliate Program is terminated (the “Term”). This Agreement can be terminated by either Party at any time with or without cause.
You may only earn payouts as long as you are an Affiliate in good standing during the Term. If you terminate this Agreement with us, you will qualify to receive payouts earned prior to the date of termination.
If you fail to follow the terms and conditions of this Agreement or any other legal terms we have posted anywhere on the Website, you forfeit all rights, including the right to any unclaimed payout.
We specifically reserve the right to terminate this Agreement if you violate any of the terms and conditions outlined herein, including, but not limited to, violating the intellectual property rights of BlisterPod or a third party, failing to comply with applicable laws or other legal obligations, and/or publishing or distributing illegal material.
At the termination of this Agreement, any provisions that would be expected to survive termination by their nature shall remain in full force and effect.
10) INTELLECTUAL PROPERTY
You agree that the intellectual property owned by BlisterPod includes all copyrights, trademarks, trade secrets, patents and other intellectual property belonging to BlisterPod (“BlisterPod IP”).
Subject to the limitations listed below, we hereby grant you a non-exclusive, non-transferable, revocable licence to access our Website in conjunction with the Affiliate Program and use the BlisterPod IP solely and exclusively in conjunction with identifying our company and brand on the Affiliate Site to send customers to the Links we provide. You may not modify BlisterPod IP in any way, and you are only permitted to use BlisterPod IP if you are an Affiliate in good standing with us.
We may revoke this licence at any time, and if we find out that you are using BlisterPod IP in any manner not contemplated by this Agreement, we reserve the right to terminate this Agreement.
Other than as provided herein, you are not permitted to use any of BlisterPod IP or any confusingly similar variation of BlisterPod IP without our express prior written permission. This includes a restriction on using BlisterPod IP in any domain or website name, in any keywords or advertising, in any metatags or code, or in any way that is likely to cause consumer confusion.
Please be advised that your unauthorised use of any BlisterPod IP shall constitute unlawful infringement, and we reserve all of our rights, including the right to pursue an infringement suit against you in any federal court or institution. You may be obligated to pay monetary damages or legal fees and costs.
The above obligation regarding the BlisterPod IP also applies to any intellectual property of any of our partners whose products are included in the Links. You are required to respect their intellectual property in the same manner described above.
You hereby provide us with a non-exclusive licence to use your name, trademarks and service marks (if applicable) and other business intellectual property for advertising our Affiliate Program.
11) MODIFICATION & VARIATION
BlisterPod may, from time to time and at any time, modify this Agreement. You agree that BlisterPod has the right to modify this Agreement or revise anything contained herein. You further agree that all modifications to this Agreement are in full force and effect immediately upon posting on the Website and that modifications or variations will replace any prior version of this Agreement, unless prior versions are specifically referred to or incorporated into the latest modification or variation of this Agreement. If we update or replace the terms and conditions of this Agreement, we will let you know via electronic means, which may include an email. If you do not agree to the modification or variation, you can choose to terminate this Agreement as described below.
- a) To the extent any part or subpart of this Agreement is held ineffective or invalid by any court of law; you agree that the prior, effective version of this Agreement shall be considered enforceable and valid to the fullest extent.
- b) You agree to routinely monitor this Agreement and refer to the Effective Date posted at the top of this Agreement to note modifications or variations. You further agree to clear your cache when doing so to avoid accessing a prior version of this Agreement.
12) RELATIONSHIP OF THE PARTIES
Nothing contained within this Agreement shall be construed to form any partnership, joint venture, agency, franchise or employment relationship between you and BlisterPod. You are an independent contractor of BlisterPod and will remain so throughout the Term and thereafter.
13) ACCEPTABLE USE POLICY
You agree not to use the Affiliate Program or BlisterPod for any unlawful purpose or any purpose prohibited under this clause. You agree not to use the Affiliate Program in any way that could damage our Website, products, services or the general business of BlisterPod.
a) You further agree not to use the Affiliate Program:
- I) To harass, abuse or threaten others or otherwise violate any person’s legal rights;
- II) To violate any intellectual property rights of BlisterPod or any third party;
- III) To upload or otherwise disseminate any computer viruses or other software that may damage the property of another;
- IV) To perpetrate any fraud;
- V) To engage in or create any unlawful gambling, sweepstakes or pyramid schemes;
- VI) To publish or distribute any obscene or defamatory material;
- VII) To publish or distribute any material that incites violence, hate or discrimination towards any group, government, race, gathering or religion;
- VIII) To unlawfully gather information about others.
14) AFFILIATE OBLIGATIONS & FTC COMPLIANCE
You are responsible for ensuring the operation and maintenance of the Affiliate Site, including technical operations, written claims, links and accuracy of materials. You must ensure, as noted above, that the Affiliate Site does not infringe upon the intellectual property rights of any third party or otherwise violate any legal rights.
We may monitor your account, as well as clicks and/or purchases coming through your account. If we determine you are not in compliance with any of the terms of this Agreement, we have the right to immediately terminate your participation in the Affiliate Program.
We suggest all of our Affiliates (including those outside the United States) to comply with the affiliate disclosure obligation set by the Federal Trade Commission (“FTC”). The FTC requires that affiliate relationships, such as the relationship between you and BlisterPod, be disclosed to consumers. We recommend that you seek independent legal counsel to advise you of your obligations to disclose in this manner.
You are encouraged to post a conspicuous notice on your website regarding the Affiliate Program. The notice does not have to contain the precise words like the example given below, but should be similar:
“We engage in affiliate marketing whereby we receive funds through clicks to our affiliate program through this website, or we receive funds through the sale of goods or services on or through this website. We may also accept advertising and sponsorships from commercial businesses or receive other forms of advertising compensation. This disclosure is intended to comply with the US FTC Rules on marketing and advertising, as well as any other legal requirements which may apply”.
We also require you to comply with any and all applicable data privacy and security laws and regulations, including all of those which may impact your country of residence or your visitors. Such regulations include, but are not limited to, any applicable laws in the United States or the General Data Protection Regulation (“GDPR”) of the European Union. We also require that you implement adequate organisational and technical measures to ensure an appropriate level of security for the data that you process. Further, you hereby agree to comply with any requests which we may make to you regarding compliance with the GDPR or requests which you may receive from data subjects (your website users).
If we find you are not in compliance with any of the requirements of this subpart, we may terminate our relationship with you at our sole and exclusive discretion.
15) REVERSE ENGINEERING & SECURITY
You agree not to undertake any of the following actions:
a) Reverse engineer, or attempt to reverse engineer or disassemble any code or software from our Website or services;
b) Violate the security of our Website or services through any unauthorised access, circumvention of encryption or other security tools, data mining or interference to any host, user or network.
16) DATA LOSS
BlisterPod does not accept responsibility for the security of your account or content. You agree that your participation in the Affiliate Program is at your own risk.
You agree to defend and indemnify BlisterPod and any of its agents (if applicable) and hold us harmless from and against any and all legal claims and demands, including reasonable attorney’s fees, which may arise from or relate to your use or misuse of the Affiliate Program, your breach of this Agreement or your conduct or actions. You agree that BlisterPod shall be able to select its own legal counsel and may participate in its own defence if BlisterPod wishes.
18) SPAM POLICY
You are strictly prohibited from using the Affiliate Program for illegal spam activities, including gathering email addresses and personal information from others or sending any mass commercial emails.
19) ENTIRE AGREEMENT
This Agreement constitutes the entire understanding between the Parties with respect to the Affiliate Program. This Agreement supersedes and replaces all prior or contemporaneous agreements or understandings, written or oral.
20) SERVICE INTERRUPTIONS
BlisterPod may need to interrupt your access to the Affiliate Program to perform maintenance or emergency services on a scheduled or unscheduled basis. You agree that your access may be affected by unanticipated or unscheduled downtime, for any reason, but that BlisterPod shall have no liability for any damage or loss caused as a result of such downtime.
21) NO WARRANTIES
You agree that your use of the Affiliate Program is at your sole and exclusive risk and that any services provided by us are on an “As Is” basis. BlisterPod hereby expressly disclaims any and all express or implied warranties of any kind, including, but not limited to the implied warranty of fitness for a particular purpose and the implied warranty of merchantability. BlisterPod makes no warranties that the Affiliate Program will meet your needs or that it will be uninterrupted, error-free or secure. BlisterPod also makes no warranties as to the reliability or accuracy of any information. You agree that any damage that may occur to you, through your computer system, or as a result of the loss of your data from your use of the Affiliate Program is your sole responsibility and that BlisterPod is not liable for any such damage or loss.
22) LIMITATION ON LIABILITY
BlisterPod is not liable for any damages that may occur to you as a result of your participation in the Affiliate Program, to the fullest extent permitted by law. The maximum liability of BlisterPod arising from or relating to this Agreement (if found liable) is limited to one hundred ($100) AU Dollars. This section applies to any and all claims by you, including, but not limited to, lost profits or revenues, consequential or punitive damages, negligence, strict liability, fraud or torts of any kind.
23) GENERAL PROVISIONS
a) Language: All communications made or notices given pursuant to this Agreement shall be in the English language.
b) Jurisdiction, Venue and Choice of Law: Through your participation in the Affiliate Program, you agree that the law of Western Australia, Australia applicable shall govern this Agreement. In case any litigation specifically permitted under this Agreement is initiated, the Parties agree to submit to the personal jurisdiction of the courts located in Western Australia, Australia. The Parties agree that this choice of law, venue and jurisdiction provision is not permissive, but rather mandatory in nature.
c) Arbitration: In the case of a dispute between the Parties relating to or arising out of this Agreement, the Parties shall first attempt to resolve the dispute personally and in good faith. If these personal resolution attempts fail, the Parties shall then submit the dispute to binding arbitration.
If the dispute is not resolved informally between Parties, you and BlisterPod both agree to settle any dispute by binding arbitration rather than in court. However, you may assert your claims in small claims court if they qualify. The arbitration shall be governed by the International Arbitration Act of 1974 and the Federal arbitration law of Australia.
To commence an arbitration, you must send a notice to us via email@example.com. The arbitration shall be conducted under and resolved by the Australian Centre for International Commercial Arbitration (ACICA) under its commercial arbitration rules, which are found at its website at www.acica.org.au. The payment of filing and arbitration fees shall be governed by the ACICA’s rules. The arbitration may be conducted by phone, written submissions or in-person, as agreed to between Parties.
Parties agree that no dispute shall be brought on class action, representative or consolidated capacity but as an individual basis. If a claim is subject to court rather than binding arbitration, then you and we both waive any right to a jury trial.
We both agree that the following disputes shall not be subject to binding arbitration:
- i) Any dispute seeking to enforce our right and any BlisterPod IP;
- ii) Any dispute relating to theft, privacy or unauthorised use; or
- iii) Any claims seeking injunctive relief.
d) Assignment: This Agreement, or the rights granted hereunder, may not be assigned, sold, leased or otherwise transferred in whole or part by you to another party. Should this Agreement, or the rights granted hereunder, be assigned, sold, leased or otherwise transferred by BlisterPod, the rights and liabilities of BlisterPod will bind and inure to any assignees, administrators, successors, and executors.
e) Severability: If any part or subpart of this Agreement is held invalid or unenforceable by a court of law or competent arbitrator, the remaining parts and subparts will be enforced to the maximum extent possible. In such condition, the remainder of this Agreement shall continue in full force.
f) No Waiver: In the event that we fail to enforce any provision of this Agreement, this shall not constitute a waiver of any future enforcement of that provision or any other provision. Waiver of any part or subpart of this Agreement will not constitute a waiver of any other part or subpart.
g) Headings for Convenience Only: Headings of parts and subparts under this Agreement are for convenience and organisation only. Headings shall not affect the meaning of any provisions of this Agreement.
h) Force Majeure: BlisterPod is not liable for any failure to perform our obligations due to causes beyond our reasonable control, including, without limitation, acts of God, acts of civil authorities, acts of military authorities, riots, embargoes, acts of nature and natural disasters, and other acts which may be due to unforeseen circumstances.
i) Electronic Communications: Electronic communications are permitted to both Parties under this Agreement by email. For any questions or concerns, please email us at firstname.lastname@example.org. We will pass any message/notice to you under the Affiliate Program or this Agreement to the email address you submit in the Affiliate Application.
24) CONTACT US
For any questions or notice, please contact us at:
BlisterPod Pty Ltd
Suite B, 116 Dempster Street, Esperance, WA 6450
Phone: +61 8 9072 1514