- Please read this entire agreement. You may print this document for Your records.
- By submitting the online application to become an Affiliate, You are agreeing that You have read and understand the terms and conditions of this agreement and that You agree to be legally responsible for each and every term and condition.
- You cannot make an application to become an Affiliate unless You have completed at least one (1) of Our Online Courses and You hold a valid ABN (or equivalent).
- After reviewing Your application, and if We agree You may become an Affiliate, then this document becomes a legal binding agreement between You and Us.
- Definitions and Interpretation
In this agreement, the following words have the following meanings, unless expressly agreed otherwise:
ABN means a valid Australian Business Number.
Affiliate means You, the person or company who applies to be an affiliate to sell the Online Courses, as agreed by Us.
Affiliate Referred Member means as set out in clause 10.1.
Agreement means this affiliate agreement set out in Part C.
Confidential Information means as set out in clause 13.
Commission means the agreed percentage (as determined by Us from time to time and at Our sole discretion), to be paid to the Affiliate for the sale of each Online Course via the Link. Such percentage will be confirmed by Us in writing by email as soon as We have received and approved Your successful application as an Affiliate.
Force Majeure Event means war, strike, lockout, natural disaster, flood, earthquake, act of God, or other circumstances beyond Our reasonable control.
Insolvency Event means: (a) where the party is an individual, that party commits an act of bankruptcy or is declared bankrupt or insolvent or that party’s estate otherwise becomes liable to be dealt with under any law relating to bankruptcy or insolvency; (b) where a party is a company, a resolution is passed or Court order made for the winding up of that party or an administrator is appointed to that party pursuant to any relevant law; (c) a receiver or manger or receiver and manager is appointed to the assets or undertaking of the party or any part thereof; or (d) the party is unable to pay its debts as and when they fall due.
Link means as set out in clause 6.
Term means as set out in clause 4.
“We”, “Our” and “Us” means Barry Nicolaou ABN: 27 915 045 158.
You means you, the person as an individual or acting on behalf of a company.
Your Account means the bank account details provided by You, where Commissions are credited.
In these agreement:
- Headings and underlinings are for convenience only and do not affect the construction of this agreement.
- A provision of this agreement will not be interpreted against a party because the party prepared or was responsible for the preparation of the provision, or because the party’s legal representative prepared the provision.
- Currency refers to Australian Dollars.
- A reference to a statute or regulation includes amendments thereto.
- A reference to a clause, subclause or paragraph is a reference to a clause, subclause or paragraph of this agreement.
- A reference to a subclause or paragraph is a reference to the subclause or paragraph in the clause in which the reference is made.
- The cautionary notes at the top of this agreement forms part of the binding terms and conditions of this agreement.
- A reference to time is to time in the state or territory in which Our principal place of business is located.
- A reference to a person includes a reference to an individual, a partnership, a company, a joint venture, government body, government department, and any other legal entity.
- The words “includes”, “including” and similar expressions are not words of limitation.
- Appointment of Affiliate
- After You have completed the online application to become an affiliate, We will commence Our review.
- If We notify You of Your successful application to become an Affiliate, then this agreement applies to You and You agree to be bound by the terms and conditions set out in this agreement.
- For the avoidance of doubt, We reserve the right to review each application on a case by case basis and hold the sole discretion to appoint or reject any application to become an affiliate.
- Upon receiving notification of appointment as an Affiliate, You represent and warrant that:
- by entering into this agreement, it does not breach any contractual or other obligation to any third party; and
- no conflict of interest is created by virtue of You entering into this agreement.
- This agreement commences on the date of receipt of notification by Us of Your successful appointment as an Affiliate and shall remain in effect unless this agreement is terminated in accordance with its terms.
- Licence to Market
- We grant You as an Affiliate a non-exclusive, non-transferable licence to market the Online Courses for the Term, in accordance with this agreement.
- For the avoidance of doubt, nothing in this agreement, shall effect Our right or Barry Nicolaou’s right to itself or through others, market, sell, licence, distribute, appoint affiliates, distributors and reseller and otherwise commercialise and/or exploit the Website and/or Online Courses at any time in Our absolute discretion.
- Access to Website
- If You have been approved by Us to become an Affiliate, We will supply You with a Dropbox link (‘Link’) and other various marketing materials (if applicable).
- The Affiliate agrees that it will not publish or distribute, or permit or authorise or encourage any person to publish or distribute, any of Our marketing material including any press release, promotional or other materials in respect of the Website without Our prior written consent.
- You must provide this Link to any person You sell the Online Courses to. By doing so, We are able to track the related Commission to Your sale. It is Your sole responsibility to ensure that anyone You sell the Online Courses to, finalises their payment through Your Link.
- The Affiliate must not offer any person a discount off any of Our approved fees for Online Courses, without Our prior written consent. Any discount offered by the Affiliate to any person with respect to the Online Courses in breach of this clause, without prejudice to Our rights, results in the Affiliate receiving no Commissions from the relevant discounted sale.
- The Affiliate must not disclose, share or licence to any person any username and/or password, if such details are provided by Us, for the purpose of demonstration of the Website or Online Course information.
- If requested by the Affiliate, We will provide the Affiliate with such training and information as deemed appropriate by Us so as to enable the Affiliate to demonstrate the Online Courses to potential Members and customers.
- Ownership of Intellectual Property
- The Affiliate agrees and acknowledges that this agreement does not transfer or assign any Intellectual Property Rights to it.
- As between Us and You as the Affiliate, We own all rights to Trademarks (registered or otherwise). The Affiliate must not use any of the Trademarks except with Our prior written consent.
- As between Us and You as the Affiliate, We own all Intellectual Property Rights in the Website, and any marketing materials developed by or on behalf of Barry Nicolaou and/or the Affiliate and/or any subcontractor or other person appointed by the Affiliate with respect to the Website or any part of it.
- The Affiliate must not hold itself out or represent to any person that it is the owner of the Website, the Online Courses, the Trademarks, or any marketing or other materials owned by Barry Nicolaou. The Affiliate has no rights thereto or in any modification or enhancement thereof.
- The Affiliate must not take any step to invalidate or prejudice Barry Nicolaou’s (or its licensor’s, if any) Intellectual Property Rights in the website or otherwise. Without limiting the forgoing provisions, the Affiliate must not register any security interest or purchase money security interest on the Personal Property Security Register, or other encumber or charge its right in respect of the Website or under any licence granted by Us under this agreement.
- Affiliate’s, Sales, Marketing and Services Obligations
- The Affiliate will:
- conduct its selling business in a professional manner of the highest standards and in compliance with all applicable laws, regulations and codes; and
- conduct marketing of the Online Courses only in a manner and using marketing materials approved by Us.
- The Affiliate must not engage any person on a subcontractor or other basis to market the Online Courses except with Our prior written consent. The Affiliate will remain primarily responsible to Us for any act, and/or omission of its subcontractors and other personnel engaged by the Affiliate to market the Online Courses and any act and/or omission of such subcontractor or personnel will be deemed to be an act or omission of the Affiliate.
- The Affiliate must not make any representation to any person that is contradictory to the content of any marketing material issued and/or approved by Us.
- The Affiliate must hold and maintain the following insurances at all times during the Term:
- worker’s compensation insurance as required by law;
- public liability insurance of $20 million per claim and in the aggregate; and
- professional indemnity insurance in the amount of $20 million per claim and in the aggregate.
- If We request a copy of the Affiliate’s certificate of currency in respect of each policy of insurance referred to in clause 8.4, the Affiliate agrees to provide this to Us on demand.
- If the Affiliate fails to effect or maintain insurance (or produce evidence of the currency of insurance) in accordance with this agreement, We may (but We are not obliged to) effect and maintain that insurance and the cost of doing so will be a debt due by the Affiliate to Us payable on demand.
- Password Protection etc.
- The Affiliate agrees and acknowledges that We may institute password protection and such other technological protection measures in respect of the Online Courses or the Website as We deem appropriate in order to prevent unauthorised use and/or access to the Website.
- Payment of Commissions
- We agree to pay Commission to the Affiliate for any person who purchases the Online Courses through the direct referral Link of the Affiliate (‘Affiliate Referred Member’).
- Commission is paid on the first (1st) day (or the next Business Day) of every month. For the avoidance of doubt, Commission will only be paid to Your Account after sales for Online Courses via the Link have cleared to Our bank account. Please note this payment process may temporarily delay payment of Your Commission for any sales entered towards the end of month.
- The Commission is inclusive of all taxes, duties and customs including GST (if applicable), all of which are the sole obligation of the Affiliate.
- If this agreement is terminated for any reason, Commission will only be paid for sales received via the Link up to the final date of this agreement. Such final date to be confirmed by way of notice (refer to clause 14).
- In the unlikely event a processed sale for Online Courses is refunded by Us at the request of an Affiliate Referred Member, We will notify You by email of such an event. Your next Commission payment will be deducted by the portion of Commission already paid to You and refunded by Us to the Affiliate Referred Member. If this agreement is terminated for any reason, then the portion of Commission paid to You and refunded to the Affiliate Referred Member, will be a debt due by the Affiliate to Us payable on demand.
- The Affiliate agrees and acknowledges that We have not provided the affiliate with any guarantee of the quantum of the Commission that the Affiliate will earn from the provision of its services under this agreement.
- The Affiliate agrees and acknowledges that it will not during the Term of this agreement and for a period of 24 months thereafter (or such lesser amount as may be considered appropriate by a court of competent jurisdiction):
- compete with Us in any business or enterprise that competes with the Website;
- market, promote or sell any services competitive or similar to the Online Courses; or
- solicit or persuade a Member (including an Affiliate Referred Member), customer, client, supplier or licensor to stop or reduce its business with Us.
- Indemnity from Affiliate
- The Affiliate indemnifies Us in respect of all and any loss and damage incurred by Us as a result of:
- any unlawful or negligent act or omission of the Affiliate;
- any claim by a third party arising out of the Affiliate’s marketing of the Online Courses;
- any infringement of Intellectual Property Rights or Moral Rights of a third party arising in the course of the Affiliate’s marketing of the Online Courses;
- any misuse or disclosure of Confidential Information by the Affiliate; and
- any breach by the Affiliate of its obligations under this agreement.
- The Affiliate agrees and acknowledges that it may receive confidential information of Ours during the Term of this agreement (‘Confidential Information’).
- The Affiliate agrees and acknowledges that any Confidential Information of Ours disclosed to the Affiliate will be received and held by the Affiliate in strict confidence and will not be disclosed by the Affiliate, except:
- with Our prior written consent;
- as required by the rules of any stock exchange; or
- as required by a court of competent jurisdiction, and then, only to the extent required, and provided that the Affiliate must promptly notify Us of such requirement of disclosure and provide full particulars to Us of the disclosure.
- Either party may terminate this agreement if the other party (the “defaulting party”) is in breach of this agreement, and in Our opinion the breach is not capable of remedy, or where the breach is capable of remedy and the defaulting party fails to remedy the breach within seven (7) days of notice.
- Either party may terminate this agreement at any time, with or without cause, by providing five (5) Business Days’ notice by email to the other party.
- If an Affiliate does not generate any sales for a consecutive period of six (6) months, then this agreement automatically ends on the last day of that six (6) month period and the parties agree that no notice is required.
- If this agreement is terminated:
- any licences granted by Us under this agreement will immediately and automatically terminate and the Affiliate must, at Our option, promptly destroy or return all of Our Confidential Information to Us, and must immediately cease marketing and selling the Online Courses; and
- the Affiliate must immediately cease holding itself out to as being Our selling agent and must immediately remove any reference to Our Trademarks and the Website, including the Online Courses from the Affiliates sales and marketing materials.
- Termination does not affect any accrued rights of either party.
- The Affiliate must not subcontract any of the Affiliate’s obligations under this agreement without Our prior written consent.
- A notice under this agreement shall be sent by email, using the details provided by You.
- Any notice issued via email shall be deemed to be delivered upon the email being sent, provided that if an email is sent out of Business Hours, it shall be deemed to be delivered at 9am on the next Business Day.
- We may modify any terms and conditions, at any time, at Our sole discretion. In such event, You will be notified by email. Modifications may include but are not limited to, changes in the payment procedure and Commission. If any modification is unacceptable to You, Your only option is to end this agreement. Your continued participation in the sale of the Online Courses as an Affiliate following the notification of change(s) or new affiliate agreement on Our Website, will indicate Your agreement to the changes are implied.
- You may not amend or waive any provision of this agreement, unless You have received Our written consent to such changes.
- Assignment: The Affiliate may not assign, transfer, licence or novate its rights or obligations under this agreement without Our prior written consent. We may assign or novate Our rights or obligations under this agreement at any time in Our absolute discretion.
- Severability: If any part of this agreement is deemed invalid by a court of competent jurisdiction, the remainder of this agreement shall remain enforceable.
- Relationship: The parties are independent contractors and this agreement does not create any relationship of partnership, joint venture, or employer and employee or otherwise.
- Entire Agreement: This agreement constitute the entire agreement between the parties and to the extent possible by law, supersede all prior understandings, representations, arrangements and agreements between the parties regarding its subject matter.
- Operation of indemnities: Each indemnity in this agreement survives the termination of this agreement. A party may recover payment under an indemnity in this agreement before it makes the payment in respect of which the indemnity is given.
- Jurisdiction: This agreement will be interpreted in accordance with the laws in force in New South Wales. The parties irrevocably submit to the exclusive jurisdiction of the courts situated in New South Wales, Australia.