Affiliate Terms & Conditions
FITTING FURNITURE AFFILIATE PROGRAM TERMS & CONDITIONS
1. Legal Effect and Capacity: These Terms & Conditions (“Conditions”) will constitute a legally binding agreement (“this Agreement”) that will come into effect between an applicant for membership ("Affiliate") to the Affiliate program and Fitting Furniture upon the application (“Application”) being approved by Fitting Furniture. Submission via the Fitting Furniture website (“Website”) of an Application shall be deemed to be evidence acceptance of these Conditions and accordingly these Conditions should be read carefully and the Affiliate should obtain all advice it considers appropriate before proceeding to make application. If the applicant is a natural person, it must be of not less than 18 years of age and otherwise of full contractual capacity.
Reference in this Agreement to “Fitting Furniture” shall, unless inconsistent with or repugnant to the context in which it appears, mean the so named computerised on-line ordering system owned and operated by Fitting Furniture.
2. Variation of Terms:
(a) Fitting Furniture may vary the contents or format of this Agreement and these Conditions from time to time and at any time in its sole discretion by posting an amended version of this Agreement on the Website whereupon the variations shall be and be deemed to be incorporated in the expression “this Agreement”.
(b) If any variation is unacceptable to the Affiliate the only recourse available to it is to terminate this Agreement in accordance with these Conditions. Continued participation of the Affiliate in the Program following posting of an amended version on the Website shall be deemed to constitute enforceable acceptance by it of any and all variations.
3. Approval and Rejection of Applications: Approval and rejection of an Application is at the sole and absolute discretion of Fitting Furniture which is not obliged to provide cause or reason for its decision.
4. Membership Account login: Following approval of an Application, Fitting Furniture by email shall notify the Affiliate of approval to the program to enable the Affiliate to login to the Affiliate members account to obtain access to a report with respect to the Affiliate’s participation in the Program listing commission payable to the Affiliate. Each Affiliate shall at any one time be entitled to only one login account.
5. Referral Commission Calculation & Payment:
(a) Affiliates will be paid a commission calculated on the revenue to Fitting Furniture generated from customers who place orders via Fitting Furniture website (and not otherwise) referred to Fitting Furniture by the Affiliate (“Orders”).
(b) Commission is only allocated to the affiliate account for those orders generated by Referees whose order status reaches the "complete" status. Complete status is usually set within one week after order delivery.
(c) The commission paid will be 5% of the revenue (excl. GST) received by Fitting Furniture from those customers (“Referees”) and will be paid quarterly in arrears by electronic funds transfer , Cheque or PayPal to the account nominated by the Affiliate. At or about time payment is made, Fitting Furniture will add payment record to the transaction list in the Affiliates account. A email notification of payment records will be sent to the Affiliate’s email address last known to Fitting Furniture and it shall be the absolute responsibility of the Affiliate to ensure their contact information in their membership account is current and self-administer any changes to their bank account or address.
6. GST & A.B.N: The Affiliate must at the time of making Application inform Fitting Furniture as to whether it is registered for GST and if so its registration number for the purposes of GST. At that time the Affiliate must also inform Fitting Furniture of its Australian Business Number if it has one. If the Affiliate is registered for GST, commission paid will be inclusive of GST.
7. Minimum Payment: Affiliates must have accumulated unpaid commission (including GST) of at least $100 for the preceding quarter before Fitting Furniture is obliged to make a payment of commission.
8. Recovery of Overpaid Commission:
(a) If for any reason Fitting Furniture is required to refund moneys received from any Referees, any commission paid to the Affiliate in respect of moneys refunded including GST (“Overpaid Commission”) will become immediately due and payable by the Affiliate to Fitting Furniture and will be deducted from future commission payments.
(b) If no further commission is payable from which Overpaid Commission can be recovered, or the following two payments of commission are insufficient to enable Fitting Furniture to the recover the full amount of Overpaid Commission, Fitting Furniture shall forthwith be entitled to forward an invoice to the Affiliate for the full or unpaid amount of Overpaid Commission (as the case may be) to be paid in full within 14 days of invoice date.
(c) If the invoice is not paid in full within that period Fitting Furniture shall immediately become entitled, without necessity for demand, to commence proceedings to recover the unpaid amount as well as costs and other moneys allowed by the rules of court.
9. Linking of Affiliates websites and Identifying Referred orders: Following approval of the Affiliate’s Application,the Affiliate will be able to generate specific tracking links on the Website using the affiliates unique tracking code. It is Fitting Furniture’s objective that by generating the tracking hyperlinks, the Affiliate’s membership account will be automatically linked with the prospective Referee’s and consequently on all orders placed by the Referee through Fitting Furniture will thereby link the Affiliate with Orders placed by the Referee for commission purposes.
10. Updating Affiliate Activity Data: Both Fitting Furniture and the Affiliate shall be reliant on Fitting Furniture’s computer hardware and software systems to ensure that Affiliate Activity Data is captured and recorded against the membership account of the Affiliate to enable production of accurate calculation of commission payable to the Affiliate.
11. Exclusion from and Limitation of Liability:
(a) Fitting Furniture will use its best endeavours to ensure the proper functioning of its hardware and software systems and the accuracy of the data entered, produced and stored but gives no warranty and accepts no liability whatsoever for any real or alleged inaccuracies or errors arising from operation of its systems. In the absence of manifest and demonstrable error, information, reports and statements produced from Affiliate Activity Data , including but not limited to the amount of commission earned by the Affiliate, shall be binding and conclusive.
(b) Fitting Furniture will also use its best endeavours to ensure the proper functioning of the Website and Fitting Furniture systems but gives no warranty and accepts no liability whatsoever for breakdowns, interruptions and other malfunctions in the operation of the Website and Fitting Furniture systems as may occur from time to time.
(c) Fitting Furniture will not be liable for any direct, indirect, incidental, special or consequential damages or any other remedy claimed by the Affiliate as arising under this Agreement or the Affiliate’s participation in the Program. In any event, Fitting Furniture’s aggregate liability arising under or with respect to this Agreement and the Program shall never exceed total commission paid or payable to the Affiliate in accordance with this Agreement.
(d) Fitting Furniture will not accept responsibility or liability to the Affiliate for innocent or deliberate action on the part of a prospective Referee which circumvents the linking mechanism outlined in Clause 9 (e.g. where a prospective Referee after being directed to the Website via the Fitting Furniture registration hyperlink does not enter particulars to effect registration but does so later after gaining access to the Website independently of the Affiliate).
12. Indemnity: The Affiliate irrevocably indemnifies and holds harmless Fitting Furniture from and against any and all claims, losses, liabilities damages or expenses of any kind whatsoever made or brought against or incurred or suffered by Fitting Furniture which arise out of or are based on breach of this Agreement by the Affiliate.
13. Obligations and Responsibilities of Affiliate:
(a) The Affiliate shall use its best endeavours to actively and effectively promote Fitting Furniture and shall only engage in such activities that do not violate any law and that reflect favourably on the image and reputation of Fitting Furniture.
(b) Without limiting the generality of (a), in engaging in such promotional activities the Affiliate shall not and shall not cause or permit the use of illegal, indiscriminate, bulk or mass marketing or “junk” email practices such as use of “bots”, “spamming” and “spamvertising”, “phishing” and “spoofing”. When in any doubt as to the acceptability of any such activity the Affiliate shall either not engage in that activity or obtain the prior written consent of Fitting Furniture (which shall not be unreasonably withheld).
(c) The Affiliate shall not make or cause or permit to be made, published, distributed or issued any verbal or written representation, statement or material about Fitting Furniture, the Program, Fitting Furniture or any service supplied by Fitting Furniture without being certain of the truth and accuracy thereof, and unless certain, shall obtain the prior written consent of Fitting Furniture (which shall not be unreasonably withheld) to do so.
(d) Otherwise than for the proper purposes of this Agreement, the Affiliate shall not by statement or action hold out or represent to any third party that it has the authority to represent Fitting Furniture in any way.
(e) The Affiliate shall be responsible for all costs and expenses incurred in connection with such activities and generally its participation in the Program.
(f) The Affiliate shall not use the Program to earn commission on orders carried out with respect to Orders placed by it or on its behalf.
(g) The Affiliate will generally comply with the letter and spirit of this Agreement.
14. Confidentiality: During the currency of this Agreement Fitting Furniture may disclose or the Affiliate through participation in the Program may otherwise obtain access to confidential information and material (including but not limited to business and financial information, information about Fitting Furniture customers, pricing and sale information relating to Fitting Furniture and other Affiliates). Confidential information shall remain strictly confidential and secret and shall not be used or dealt with, directly or indirectly, by the Affiliate for its own commercial purposes or for any other purpose except and solely to the extent that such information and material is generally known by or available to the public, or is required by law. Where the Affiliate has any doubt as to whether information or material is confidential it shall either assume that it is confidential or obtain the determination of Fitting Furniture which shall be conclusive and final.
(a) Either party may, with or without cause and without incurring liability to the other, terminate this Agreement, and in the case of the Affiliate participation in the Program, by emailing to the other at least 30 days’ prior written notice.
(b) Either party may by written notice terminate this Agreement forthwith in the event:
(i) that party is reasonably of the belief that the other is in substantial breach of this Agreement and without necessity to give the other party an opportunity to remedy that breach; or
(ii) the other party being a corporation has a liquidator, manager, receiver, controller or other external administrator appointed, enters into a deed of company arrangement or similar form of compromise or settlement with creditors; or
(iii) the other party being a natural person dies or becomes bankrupt.
(c) The Affiliate may by written notice terminate this Agreement forthwith in the event it is not
prepared to accept a variation of these Conditions pursuant to Clause 2.
16. NonWaiver By Time or Indulgence: The Affiliate acknowledges and agrees that if Fitting Furniture does not exercise or enforce any right or remedy contained in or arising from the provisions of this Agreement or any applicable legislation or common law or equitable principle, or extends time or other indulgence to the Affiliate, this shall not and shall not be deemed to constitute a waiver of that right or remedy which may still be invoked by Fitting Furniture.
17. After Termination:
`` (a) The Affiliate will be entitled to: unpaid commission earned on or prior to the date termination takes effect except where the Affiliate has committed what Fitting Furniture determines to constitute a substantial breach of this Agreement or some other breach which has caused or has the potential to cause economic or other loss or damage to Fitting Furniture in which case the unpaid commission, or such part thereof as Fitting Furniture reasonably believes to be adequate to compensate it for such loss or damage, will be forfeited and Fitting Furniture will advise the Affiliate accordingly in writing.
(b) Fitting Furniture and the Affiliate will be released from all obligations and liabilities to each other occurring or arising after that date except with respect to those obligations and liabilities that by their nature and whether expressly or implicitly are intended to survive termination including but not limited to the obligations imposed on the Affiliate under subclauses 25(b) and 25(c).
(c) Termination will not relieve the Fitting Furniture or the Affiliate from any liability arising from any breach of this Agreement which occurred prior to that date.
18. Status of Parties and Referees:
(a) Fitting Furniture and the Affiliate are independent contractors. Nothing in this Agreement shall create or shall be construed as creating any partnership, joint venture, agency, franchise, sales representative or employment relationship between the parties.
(b) As against the Affiliate and in respect of services supplied to Referees by Fitting Furniture, Referees shall become the exclusive customers of Fitting Furniture. The Affiliate shall not or not attempt to induce or solicit or otherwise cause any Referee introduced by the Affiliate to Fitting Furniture, or any other Referee, to cease or suspend its custom to Fitting Furniture. The force and effect of this subclause shall survive termination of this Agreement.
(c) During the currency of this Agreement Fitting Furniture reserves the right at its discretion to refuse to accept Orders from Referees and cancel their registration with Fitting Furniture.
19. Entire Agreement: The terms of this Agreement constitute the entire agreement between the parties with respect to the subject matter hereof. No statement, inducement or representation with respect to that subject matter not contained in this Agreement shall be binding on or enforceable by either party.
20. Assignment and Succession:
(a) Fitting Furniture may, following written notice to the Affiliate, assign its rights and obligations under this Agreement to a third party.
(b) The Affiliate may only assign, sell or transfer its rights and obligations with prior written consent from Fitting Furniture which Fitting Furniture may give or refuse to give in its absolute discretion.
(c) Subject to the foregoing, this Agreement will be binding on, and enforceable against and ensure to the benefit of Fitting Furniture and the Affiliate and their respective successors and assigns.
21. Applicable Law, Jurisdiction & Severability:
(a) This Agreement shall be governed by and construed in accordance with the law in Victoria and the parties irrevocably consent to the jurisdiction of the courts of that State in respect of
any proceedings arising from or in any way related to the provisions hereof.
(b) Each provision of this Agreement is severable from the others and no severance of a provision shall affect any other provision.
22. Limited Approval: Fitting Furniture’s approval shall only apply to the Affiliate’s website of which Particulars have been supplied in the Application made by the Affiliate. Use or attempted use by the Affiliate of another website shall constitute a substantial breach of this agreement.
23. Rejection of Application & Withdrawal of Consent: Without limiting the force and effect of Clause 3, Fitting Furniture may reject an application or withdraw its consent to use of a website in the event that in its sole and absolute discretion it forms the view that the website is or has become unsuitable for use by the Affiliate with respect to the affiliate program. Criteria of unsuitability may include, but not be limited, to:
(a) infringement of trademark rights of Fitting Furniture or a third party or other rights of a third party;
(b) presence of sexually explicit material;
(c) presence of hateful, violent or offensive material;
(d) promotion of discrimination based on race, sex, religion, nationality, disability, sexual orientation
(e) promotion of illegal activities or activities that violate any applicable laws or involve use of privacy intrusive practices and software
(f) violation of intellectual property rights of Fitting Furniture or a third party.
24. NonExclusive Licence:
(a) As an automatic consequence of Fitting Furniture’s approval, but subject to its ongoing consent, the Affiliate will be granted a nonexclusive licence to use Fitting Furniture’s logo on its website to enable prospective Referees to gain access to the Website for the purposes referred to in Clauses 9. The Affiliate may also be given a non-exclusive licence to gain access to and display on its website promotional and instructional material from time to time made available to Affiliates on the Website for those purposes (“Fitting Furniture material”).
(b) The granting of a licence by Fitting Furniture does not constitute any transfer of ownership of the Fitting Furniture material and all rights over the Fitting Furniture material not expressly granted hereunder remain the property of and are reserved to Fitting Furniture.
(c) The Affiliate agrees that the continued benefit of the licence is conditional upon the Affiliate:
(i) updating Fitting Furniture material with replacement Fitting Furniture material made available by Fitting Furniture from time to time;
(ii) not altering any of the Fitting Furniture material without the prior written consent of Fitting Furniture;
(iii) only using Fitting Furniture material in connection with promotion of Fitting Furniture
(iv) not using Fitting Furniture material for purposes other than promoting Fitting Furniture
(v) not using Fitting Furniture material in any unlawful or offensive manner or in any way reasonably likely to detrimentally affect Fitting Furniture
(vi) not displaying material on the Affiliate’s website supplied or made accessible by any corporation, organisation, group of individuals or individual engaged in or proposing to engage in commercial activities reasonably capable of being considered to be in competition with Fitting Furniture or other services supplied by Fitting Furniture.
24. Exclusion from and Limitation of Liability:
(a) The Affiliate will be solely responsible for ensuring that its website is properly formatted and configured to enable the proper tracking of sales to Referees introduced to Fitting Furniture through the Affiliate’s website and Fitting Furniture will not be liable for the consequences of any failure on the part of the Affiliate to do so.
(b) The Affiliate acknowledges and accepts that, subject to these Conditions, Fitting Furniture will not be liable for any failure of its software or hardware systems to track sales and credit Commission to Affiliates and will not be liable for any losses or other adverse effects suffered by the Affiliate including, but not limited to, those resulting from:
(i) failure by the Affiliate to properly format and configure its website and related hardware and software systems as aforesaid and to properly maintain those systems;
(ii) deliberate or innocent action by prospective Referees which circumvents the tracking system;
(iii) “bugs”, “glitches” and “crashes” of, in or to Fitting Furniture’s systems from time to time; and
(iv) random and unattributable occurrences
(c) Fitting Furniture will not accept responsibility or liability to the Affiliate for innocent or deliberate action on the part of a prospective Referee which circumvents the linking mechanism
25. Upon Termination:
(a) All rights and licences with respect to Fitting Furniture material shall terminate immediately.
(b) The Affiliate shall remove from its website all Fitting Furniture logos and other Fitting Furniture material appearing on its website.
(c) The Affiliate shall immediately disable all links from its website to the Website.
(d) The rights and remedies available to and enforceable by Fitting Furniture in respect of any breach or continuing breach of this Agreement, including but not limited shall remain in full force and effect and ensure for the benefit of Fitting Furniture notwithstanding termination.