Best Swim Schools Affiliate Terms & Conditions
WEBSITE AFFILIATION AGREEMENT
Master Affiliation Agreement, (the "Agreement") between you (the "Affiliate"), and Best Search Pty Ltd trading/as Best Swim Schools of PO Box 1569, Burleigh Heads QLD 4220 “BSS”, that operates the Best Swim Schools Network for which it solicits Customers online regarding the placement of Swim School Referrals to Affiliates and for display on Pages and to which the Tags can be affixed as provided herein.
The Affiliate and BSS wish to enter into the relationship as set out in this Agreement. All capitalised terms used in the Agreement and any exhibit attached to the Agreement have the meanings set forth in Section A below.
In consideration of the foregoing, the mutual covenants and agreements contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, it is agreed as follows:
SECTION A. DEFINITIONS
1. "Customers" means Customers, Swim School Referral customers of the Best Swim Schools website referred to Affiliates.
2. "Swim School Referral" means the material that is provided to the Affiliate to allow Customers access to product or a service through Swim School Referral website and banners, text links, buttons, jump pages and emails.
3. "Swim School Referral Sales Revenue" means the revenue generated by BSS from the sale of Swim School Referral on the Web Site(s).
4. "Affiliate" means the party listed on the signature page hereto that is the operator and owner of the Web Site(s) specified on the signature page hereto.
5. "Affiliate Technology" means all hardware, software, programs, codes, trade names, technology, intellectual property, licenses, patents, trademarks, copyrights, trade secrets, know-how, and processes used by Affiliate under this Agreement.
6. "Agreement" means this Agreement and any exhibits attached hereto, as the
same may be amended, supplemented or modified in accordance with the terms
hereof.
7. "Appended Data" means the demographic or other information owned by BSS
that is attached or appended to the Registration Data for use in the Database.
8. "Bad Debt" means receivables for billed Net Swim School Referral Sales Revenue in which collection has not been made and, in accordance with the criteria set by BSS, is deemed uncollectible.
9. "CPM" means the dollar cost per thousand Advertisements or impressions with respect to Swim School Referral sold by BSS to an Advertiser.
10. "Database" means BSS' database of Internet users that compiles demographic and other information of Internet users for the purposes of delivering profile-targeted Swim School Referral to Internet users.
11. "DMA" means the Direct Marketing Association.
12. "E-Commerce Service" means the frame work of interaction between BSS and its Customers.
13. "Effective Date" means the date first written above.
14. "Net Swim School Referral Sales Revenue" means the Swim School Referral Sales Revenue, less any Swim School Referral agency commissions retained by the Swim School Referral agency or paid by BSS to the Swim School Referral agency.
15. "Pages" means the pages, screens, and other segments or spaces on the Web
site(s).
16. "Registration Data" means the information and data gathered by BSS or the Affiliate pertaining to its Internet users of its web site for use in the Database.
17. "Royalty" means the payment by BSS to Affiliate comprised of the Affiliate's portion of Net Swim School Referral Revenue as set forth in Section C.3. of this Agreement (if any).
18. "Tag(s)" means a unique tag, or graphical element in a fixed location on a
Page designed for the delivery of Swim School Referral, in HTML/Java or other
appropriate languages that are affixed appropriately by Affiliate to the
Web Site's Pages to enable BSS to serve Swim School Referral to those Pages.
19. "Term" means the term of this Agreement, as determined pursuant to Section
C.4. of this Agreement.
20. "BSS" means Best Search Pty Ltd trading as Best Swim Schools and its subsidiaries.
21. “Swim School Referral” means a referral by BSS to the Affiliate of information sufficient for a customer to make contact to the Affiliate to engage the Affiliate for Services.
25. "Web Site(s)" means Internet Web site(s) owned by Affiliate specified on the signature page hereto.
26. “Services” means Swimming school training services to Customers and in accordance with standards set out in Annexure A which may be changed by BSS from time to time.
SECTION B. SCOPE OF AGREEMENT
The Affiliate hereby grants to BSS the right to refer users of its websites to the business of the Affiliate for a fee.
SECTION C. TERMS
1. Obligations of Affiliate, The Affiliate represents, warrants, covenants
and agrees:
A. to use its best efforts to maintain its Business and Web Site and the Web Site's
Pages in a manner consistent with the intent and purpose of the Web
Site as at the date first written above;
B. to insert the Tags on each of the Web Site's Pages in such a manner
as to assure that the Swim School Referral to be affixed to said Tag is fully
and clearly visible on the first Web Site Page viewed when that Page
is viewed at a 640 x 480 pixel resolution;
C. to insert a button with the BSS logo on the Web Site's home page
directing potential Customers to the BSS web site.
D. to notify BSS within one business day from the time of notice when
any new Swim School Referral is delivered of the Affiliate's rejection of any new
Swim School Referral on the basis that the Swim School Referral is lacking sufficient detail to contact the Customer or has been fraudulently submitted and contains false contact information preventing the Affiliate from contacting the Customer. Failure to provide timely notice of rejection of the
new Swim School Referral shall be deemed acceptance thereof.
E. to furnish BSS with all subscribership, viewership, inventory, and
usage reports, reviews and audience studies, deliveries, census
requirements, and any other information regarding the Web Site and
the Web Site's Pages as is reasonably available to the Affiliate and
appropriate for use by BSS for the sale of Swim School Referral, provided,
that such reports are subject to the confidentiality obligations of
the parties set forth in this Agreement;
F. not to engage, contract with, license or permit any person, firm or
entity (including the Affiliate and its employees) other than BSS
and its employees to sell, or represent the Affiliate for the sale
of Swim School Referrals on the Web Site and to refer all Swim School Referral
inquiries to BSS other than in accordance with existing practices of the Affiliate.
G. to maintain the Affiliate’s business in accordance with the BSS Business Standards set out in Schedule A hereto.
H. to maintain its services and provide sufficient staff to carry out its services by contacting Swim School Referrals by telephone, email or by post within 24 hours of receiving the Swim School Referral.
2. Obligations of BSS. BSS represents, warrants, covenants and
agrees:
A. to provide the Affiliate, during the Term and only for use in the
performance of this Agreement, with unique Tags;
B. to utilize its best efforts to solicit Customers for the purpose of obtaining
Swim School Referrals on the Web Site's Pages for the benefit of the Affiliate;
C. to deliver and serve Swim School Referrals to the Affiliate;
D. to provide the Affiliate with notice, via on-line posting or email,
of any new Swim School Referrals that have been solicited by BSS in accordance with the provisions in Section C.1.D of this Agreement;
E. to provide the Affiliate with access to reports that will
allow it to monitor the volume of paid Swim School Referral delivered to the
Affiliate and the revenue earned (subject to billing
corrections and accounting adjustments) thereby, provided, that such
reports are subject to the confidentiality obligations of the
parties set forth in this Agreement; all such records, including
data, statistical information or other traffic analysis, produced or
provided by BSS shall remain the property of BSS;
F. to deliver to the Affiliate a monthly statement ("Statement")
showing the Royalty earned by BSS during the calendar month
and any sum(s) due to BSS on account thereof pursuant to
Section C.3. of this Agreement; each Statement shall be final and
binding on the Affiliate;
notwithstanding the foregoing, BSS shall not be responsible for
uncollectible or Bad Debts of Customers nor any default on the
part of Customers; and
G. to maintain suitable and qualified personnel in administrative,
sales and technical positions necessary for BSS to perform
effectively the terms of this Agreement.
H. to take reasonable steps to protect the Swim School Referral to ensure quality data is transmitted to the Affiliate.
3. Payments.
A. Customers shall be directed to pay to the Affiliate all cash and other
consideration generated from the sale of Swim School Referrals by BSS during
the term of this Agreement and for a period of six months following
the termination of this Agreement (except for sponsorships, with
respect to which payments shall be made to BSS and a percentage
shall be retained by BSS for the duration of the sponsorship
regardless of the date of termination of this Agreement).
B. The Affiliate shall deliver to BSS the Royalty on the terms and
conditions set forth in Section C.3.C. of this Agreement.
C. The Affiliate shall be charged the sum of $5.00 per Swim School Referral notwithstanding whether the Swim School Referral results in a paid Customer to the business of the Affiliate. The Affiliate shall provide its Credit Card or other payment details acceptable to BSS in the accompanying Credit Card authority which shall be debited monthly by BSS in accordance with the terms therein. Except in accordance with Section C.1.D of this agreement, the payment to BSS shall be final and shall not be disputed by the Affiliate.
D. In the event any Customer remits any payment for Swim School Referral
directly to the Affiliate rather than to BSS, the Affiliate agrees
to make prompt payment to BSS of any and all such payments.
F. Affiliate agrees that it is obligated to compensate BSS on any
business contracted with BSS prior to termination date.
4. Term.
A. The Term of this Agreement will commence on the Effective Date, will
continue for one year from the Effective Date, and will renew
automatically for additional periods of one year, unless otherwise
terminated pursuant to the terms of this Agreement. Either party may
terminate the Agreement by giving written notice to the other party
no earlier than twelve months after the Effective Date. Termination
will be effective six (6) months after the date on which written
notice is given, provided that notice is given pursuant to the terms
of Section C.13. of this Agreement, to the other party.
B. Notwithstanding Section C.4.A. of this Agreement, this Agreement may
be terminated by either party on 60 days' prior written notice to the other party upon the occurrence of a material breach by the other party of any covenant, duty or undertaking herein, which material breach continues without remedy for a period of 30 days after written notice of such breach is received by the breaching party from the non-breaching party.
C. Notwithstanding Section C.4.A. or C.4.B. of this Agreement, this
Agreement may be terminated by BSS on written notice to the
Affiliate upon the occurrence of a breach by Affiliate of its
covenants under Section C.7. of this Agreement, which breach
continues without cure for a period of more than 48 hours after
written notice of such breach is received by Affiliate from BSS, or
which breach occurs on more than two occasions; and BSS shall have
the right and option to
adjust the royalty due to Affiliate set forth in Section C.3. of
this Agreement upon the occurrence of a breach of Section C.7.C. of
this Agreement, which breach continues without cure for a period of
more than 48 hours after which written notice of such breach is
received by Affiliate from BSS.
5. Intellectual Property.
A. The BSS Technology will remain the sole property of BSS and
Affiliate will have no rights, title or interest in the BSS
Technology. The Affiliate Technology will remain the sole property
of Affiliate and BSS will have no rights, title or interest in the
Affiliate Technology. Upon the expiration or termination of this
Agreement, each party agrees that it will promptly return all
information, documents, manuals and other materials belonging to the
other party except as otherwise provided in this Agreement or any
exhibits hereto.
B. Upon termination or expiration of this Agreement. BSS will retain
ownership of and all rights, title and interest in the BSS Data,
with the exception of the rights granted Affiliate pursuant to 2E
and 2F.
6. Confidentiality, BSS and Affiliate covenant to each other that neither
party will disclose to any third party (other than its employees and
directors, in their capacity as such, and the employees and directors of
any affiliate on a need to know basis so long as they are bound by the
terms of this Agreement) any information regarding the terms and
provisions of this Agreement or any non-public confidential information,
which information a reasonable person would consider confidential or which
is marked as "confidential" or "proprietary", except (i) to the extent
necessary to comply with any law or valid order of a court of competent
jurisdiction (or any regulatory or administrative tribunal), in which
event the party so complying shall so notify the others as promptly as
practicable (and, if possible, prior to making any disclosure) and shall
seek confidential treatment of such information, if available; (ii) as
part of its normal reporting or review procedure to its auditors or its
attorneys, as the case may be, so long as they are notified of the
provisions of this Agreement; (iii) in connection with any filing with any
governmental body or as otherwise required by law, including the federal
securities laws and any applicable rules and regulations of any stock
exchange or quotation system; and (iv) in a confidential disclosure made
in connection with a contemplated financing, merger, consolidation or sale
of capital stock of BSS or the Affiliate. Information which is or should
be reasonably understood to be confidential or proprietary includes, but
is not limited to, information about the BSS Network, the BSS Mail
Network, the Database, the E-Commerce Service, sales, cost and other
unpublished financial information, product and business plans,
projections, marketing data, and sponsors, but shall not include
information (a) already lawfully known to or independently developed by a
party, (b) disclosed in published materials, (c) generally known to the public,
(d) lawfully obtained from any third party or (e) required to be
disclosed by law.
7. Content of Web Site.
A. Affiliate covenants and agrees not to knowingly include or provide
via the Web Site, and agrees to remove from the Web site any
material that is : (i) libelous, pornographic, obscene, or
defamatory under any federal or state law; (ii) an infringement of
any third party's intellectual property rights (including copyright,
patent, trademark, trade secret or other proprietary rights); or
(iii) an infringement on any third party's rights of publicity or
privacy. Affiliate further covenants and agrees, with respect to the
operation of its Web Site and its Pages, to comply with all laws,
statutes, ordinances, and regulations.
B. Affiliate agrees to place prominently on its Web Site(s) and to
operate in accordance with and to comply with a privacy statement or
policy that adheres to or exceeds widely-accepted industry
guidelines, such as the TRUSTe Privacy Program, the Better Business
Bureau Privacy Practices or the DMA-accepted privacy statements.
Affiliate agrees to provide a text-link or hyper-link on its Web
Site(s) to the privacy policy of BSS posted on its main web site at
www.247media.com. Affiliate agrees to continuously monitor and
enhance its privacy policy and the management and use of information
collected from Internet users to conform to industry standards for
the Term.
8. Indemnification.
A. Affiliate shall indemnify and hold harmless BSS, its Customers
and other suppliers and any related third parties, against and in
respect of any and all third party claims, suits, actions,
proceedings (formal and informal), investigations, judgments,
deficiencies, damages, settlements, liabilities, and legal and other
expenses (including reasonable legal fees and expenses of attorneys
chosen by BSS) as and when incurred, arising out of or based upon
any act or omission or alleged act or alleged omission by Affiliate
in connection with the acceptance of, or the performance or
non-performance by Affiliate of, any of its duties under this
Agreement or arising from the breach by Affiliate of its warranties,
representations or covenants contained in this Agreement. Affiliate
shall promptly notify BSS of all claims and proceedings related
thereto of which Affiliate becomes aware.
B. BSS shall indemnify and hold harmless the Affiliate, against and in
respect of any and all third party claims, suits, actions,
proceedings (formal and informal), investigations, judgments,
deficiencies, damages, settlements, liabilities, and legal and other
expenses (including reasonable legal fees and expenses of attorneys
chosen by Affiliate) as and when incurred, arising out of or based
upon any act or omission or alleged act or alleged omission by BSS
in connection with the acceptance of, or the performance or
non-performance by BSS of, any of its duties under this Agreement
or arising from the breach by BSS of its warranties,
representations or covenants contained in this Agreement. BSS shall
promptly notify Affiliate of all claims and proceedings related
thereto of which BSS becomes aware.
9. Affiliate Representations and Acknowledgements. Affiliate represents,
warrants and acknowledges the following:
A. that Affiliate has the authority to enter into this Agreement and to
perform its obligations hereunder, that it has the right to grant
the rights granted to BSS hereunder, and that it has the authority
to make the Web Site and the Pages available for Swim School Referral.
B. that BSS shall not be responsible for collection of debts or conversion of Swim School Referrals into paying customers of the Affiliate
C. that BSS owns and operates the Database and that the Affiliate
understands and agrees that the payment in respect of Swim School Referral
that employs the Database and E-Commerce System shall be paid in accordance with this agreement.
D. that BSS is acting solely as a conduit distributor and marketer of
the Swim School Referral and that it has no responsibility for the business of
the Affiliate the successful conversion of the Swim School Referral and/or the Web Site(s)
10. No Poaching. Affiliate agrees that, during the Term and for a period of
one year from the end of the Term, neither it nor its affiliates will
solicit or recruit the services of any BSS employees, or hire any such
employees.
11. Amendment and Waiver; Successors and Assigns. No failure or delay on the
part of any party hereto in exercising any right, power or remedy
hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, power or remedy preclude any other or
future exercise thereof or the exercise of any other right, power or
remedy. The remedies provided for herein are cumulative and are not
exclusive of any remedy that may be available to the parties at law, in
equity or otherwise. This Agreement shall not be amended, waived,
modified, assigned or transferred except by a written consent to that
effect signed by Affiliate and BSS, provided, that BSS may transfer or
assign this Agreement without the consent of Affiliate in the event of a
merger of BSS with, or a sale or all or substantially all of its assets
to, a third party. This Agreement shall inure to the benefit of and be
binding on the successors and permitted assigns of the parties hereto.
Affiliate agrees that if it assigns or transfers this Agreement, it shall
cause such successor, assignee, or transferee to assume all of the
Affiliate's obligations hereunder. Any assignment, transfer, or assumption
shall not relieve the Affiliate of liability hereunder.
12. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Queensland and the parties submit to the Jurisdiction of the Courts of Queensland
13. Notices All notices required or permitted to be given under this Agreement
shall be in writing and either hand-delivered, facsimile, mailed by
certified first class mail, postage prepaid, or sent via electronic mail
to the other party or parties hereto at the address(es) set forth on the
signature page to this Agreement. A notice shall be deemed given when
delivered personally, when the facsimile notice is transmitted by the
sender, three business days after mailing by certified first class mail,
or on the delivery date if delivered by electronic mail.
14. Entire Agreement This Agreement constitutes the entire agreement and
supersedes all prior agreements of the Parties with respect to the
transactions set forth herein and, except as otherwise expressly provided
herein, is not intended to confer upon any other person any rights or
remedies hereunder.
15. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original and all of which together shall
constitute one and the same document.
16. Force Majeure. Neither party shall be held liable or responsible to the
other party nor be deemed to have defaulted under or breached this
Agreement for failure or delay in fulfilling or performing any term of
this Agreement when such failure or delay is caused by or results from
causes beyond the reasonable control of the affected party, including but
not limited to fire, floods, failure of communications systems or
networks, embargoes, war, acts of war (whether war is declared or not),
insurrections, riots, civil commotion, strikes, lockouts or other labor
disturbances, acts of God or acts, omissions or delays in acting by any
governmental authority or the other party; provided, however, that the
party so affected shall use reasonable commercial efforts to avoid or
remove such causes of nonperformance, and shall continue performance
hereunder with reasonable dispatch whenever such causes are removed.
Either party shall provide the other party with prompt written notice of
any delay or failure to perform that occurs by reason of force majeure.
The parties shall mutually seek a resolution of the delay or the failure
to perform as noted above.
17. Severability. Should one or more provisions of this Agreement be or become
invalid, the parties hereto shall substitute, by mutual consent, valid
provisions for such invalid provisions which valid provisions in their
economic effect are sufficiently similar to the invalid provisions that it
can be reasonably assumed that the parties would have entered into this
Agreement with such valid provisions. In case such valid provisions cannot
be agreed upon, the invalidity of one or several provisions of this
Agreement shall not affect the validity of this Agreement as a whole,
unless the invalid provisions are of such essential importance to this
Agreement that it is to be reasonably assumed that the parties would not
have entered into this Agreement without the invalid provisions.
18. Dispute Resolution. Any controversy or claim arising out of or relating to
the Agreement, or the breach thereof, shall be settled exclusively by
arbitration. Such arbitration shall be conducted before a single
arbitrator in accordance with any Commercial Arbitration Rules of the
Queensland Law Society then in effect. Judgment may be entered on the arbitrator's award
in any court having jurisdiction, and the parties irrevocably consent to
the jurisdiction of such courts for that purpose. All decisions of the arbitrator shall be final and binding on the
parties. The parties shall equally divide all costs of the arbitrator. Each party shall bear its own
legal fees in any dispute. The arbitrator may grant injunctive or other
relief.
19. LIMITATION OF LIABILITY; DISCLAIMER. IN NO EVENT SHALL EITHER PARTY BE
LIABLE TO THE OTHER PARTY FOR ANY DIRECT OR INDIRECT, SPECIAL, INCIDENTAL,
PUNITIVE, CONSEQUENTIAL OR LOST PROFIT DAMAGES, EVEN IF ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. BSS MAKES NO WARRANTIES OF ANY KIND TO ANY
PERSON WITH RESPECT TO THE SYSTEM USED TO DELIVER SWIM SCHOOL REFERRAL
OR ANY SWIM SCHOOL REFERRAL OR DATA SUPPLIED HEREBY, INCLUDING ANY IMPLIED WARRANTY
OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT.
20. Independent Contractors. BSS and Affiliate shall each act as independent
contractors. Neither party shall exercise control over the activities and
operations of the other party. BSS and Affiliate shall each conduct all
of its business in its own name and as it deems fit, provided it is not in
derogation of the other's interests. Neither party shall engage in any
conduct inconsistent with its status as an independent contractor, have
authority to bind the other with respect to any agreement or other
commitment with any third party, nor enter into any commitment on behalf
of the other, except as expressly provided for by this Agreement.
21. Publicity. None of the parties hereto shall issue a public announcement or
press release concerning this Agreement or the terms hereof without the
prior written approval by the other party hereto
(which approval shall not be unreasonably withheld or delayed); provided,
however, that nothing in this Agreement shall restrict any party from
disclosing information that is already publicly available, except as a
result of a breach of the confidentiality obligations of this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement by clicking that the agree to be bound by the terms and conditions above.
SCHEDULE A
BSS Business Standards
BSS requires that all affiliates maintain their business practice at above 85% of the BSS Swim School Check Rating System.