This Affiliate Agreement is made between TMS Global Services Pty Ltd (“TMS”) ABN 22 089 771 835 of Unit 604, 370 St Kilda Road, Melbourne, Victoria 3004, Australia trading as Lottery Affiliates, and You, as a user of the Lottery Affiliates service.
1.1 TMS has developed and operates a service called Lottery Affiliates which facilitates and allows Affiliates to promote Merchant websites on Affiliate websites for reward.
1.2 TMS takes care of transaction tracking and payments to Affiliates on behalf of merchants.
1.3 You wish to become an Affiliate user of Lottery Affiliates and as such you will be establishing relationships with Merchants who wish you to promote their websites for reward.
2.1 "Affiliate" means any person who owns and operates a website on which a Merchant Website is promoted for reward pursuant to the Lottery Affiliates service in accordance with the terms and conditions of this Agreement.
2.2 "Affiliate Account" means your login protected account located on the Lottery Affiliates Website which contains your contact details and your individual Affiliate Tracking Link codes and on which you can view commission statistics.
2.3 "Affiliate Application Form" means the affiliate application form (located at: http://www.lotteryaffiliates.com/signup/) and all of the information contained in it.
2.4 "Affiliate Program" means an advertising program offering reward for Affiliates to direct Visitors to a Merchant website.
2.5 "Affiliate Tracking Link" means a hyperlink placed on your website to serve a tracking cookie and direct a Visitor to a Merchant's website in respect of an Affiliate Program.
2.6 "Agreement" means all of the terms and conditions set out in this Affiliate Agreement including the content of and the information set out in the Affiliate Application Form.
2.7 "Click" means an event which occurs when a Visitor clicks on an Affiliate Tracking Link that results in a Merchant's website in respect of an Affiliate Program being viewable to the Visitor.
2.8 "Commission Rate" means the manner in which an Affiliate will be rewarded by a Merchant for promoting Merchant websites.
2.9 "Duration Period" means the period identified as the Duration period in the Affiliate Application Form.
2.10 "GST" means the goods and services tax under the GST Act and the terms used in this Agreement have the meanings as defined in the GST Act.
2.11 "GST Act" means A New Tax System (Goods and Services Tax) Act 1999 (Cth).
2.12 "TMS" means TMS Global Services Pty Ltd ABN 22 089 771 835 of Unit 604, 370 St Kilda Road, Melbourne, Victoria 3004 trading as Lottery Affiliates.
2.13 "Lottery Affiliates" means the service, developed and operated by TMS, which facilitates and allows you to promote Merchant websites on your website for reward in accordance with the terms and conditions of this Agreement.
2.14 "Lottery Affiliates' Website" means the website URL http://www.lotteryaffiliates.com.
2.15 "Merchant" means any person who owns and operates a website and who has agreed to allow Affiliates to promote their websites on Affiliate Websites for reward pursuant to the Lottery Affiliates service.
2.16 "Tracking Cookie" means an identifier used to determine which Affiliate referred a Visitor to a Merchant's website in respect of an Affiliate Program.
2.17 "Trailing Commission" means a commission payable to an Affiliate, after a Visitor's first referred transaction, based upon additional transaction(s) being made by that Visitor.
2.18 "You, Your" means the person identified as the Affiliate in the Affiliate Application Form.
2.19 "Visitor" means an internet user who clicks on an Affiliate Tracking Link placed on your website and thereby directed to a Merchant's website in respect of an Affiliate Program.
3.1 In this Agreement, unless the contrary intention appears:
(a) The singular includes the plural and vice versa.
(b) Reference to a party to any agreement (including this Agreement) or instrument includes the legal personal representatives, executors, administrators, successors and assigns of that Party.
(c) Words importing a natural person include a corporation, partnership, association, trust or government or semi-government authority, agency or instrumentality and vice versa.
(d) Reference to any agreement (including this Agreement) or instrument includes that agreement or instrument as amended, novated, supplemented, varied or replaced from time to time.
(e) References to clauses, subclauses, paragraphs, subparagraphs, and background are references to constituent parts of this Agreement.
(f) Reference to any legislation or to any legislative provision includes any statutory modification, re-enactment, replacement of or substitution for that legislation or provision, and any subordinate legislation or statutory instrument issued pursuant to that legislation or as it may have been modified, re-enacted, replaced or substituted.
(g) The word 'including' is to be construed as being by way of illustration or emphasis and is not to limit or prejudice the generality of any of the words preceding it.
(h) Clause headings are inserted for convenience only and do not affect the interpretation or construction of this Agreement.
(i) Derivative forms of a defined word or expression are given a corresponding meaning.
4. APPLICATION AND APPROVAL
4.1 By applying to become an approved Affiliate user of Lottery Affiliates, in submitting an Affiliate Application Form, you are stating that you have read and understand the terms and conditions set out in this Agreement and accept that you are bound by these terms and conditions, if your application is successful.
4.2 You are deemed to be an approved Affiliate user of Lottery Affiliates and thereby bound by the terms and conditions of this Agreement upon confirmation being sent to you (via email/fax/mail) from TMS confirming your approval to use Lottery Affiliates.
5. THE SERVICE
5.1 TMS will provide the technical tools and services in order for you to use Lottery Affiliates for promoting Merchant websites on your website.
5.2 You may place Affiliate Tracking Links on your website, and remove Affiliate Tracking Links from your website, as you wish.
5.3 If you wish to discontinue promoting a Merchant website on your website, you may do so at anytime.
6. COMMISSION RATE
6.1 Merchants will determine the Commission Rate in respect of an Affiliate Program.
6.2 Merchants are able to vary the Commission Rate from time to time.
6.3 Commission Rate changes are not effective until TMS has approved them.
6.4 Upon a Commission Rate change being approved, TMS will then amend the Commission Rate details in respect of the relevant Affiliate Program on the TMS Affiliate's Website, at which time the changed Commission Rate will become effective.
6.5 TMS may discontinue commission payments at any time.
6.6 You are responsible for determining if a Commission Rate has changed or has been discontinued for an Affiliate Program.
7.1 In order to become an approved Affiliate user of Lottery Affiliates you must own and operate the website which is listed on the Affiliate Application Form, on which you intend to promote Merchant websites.
7.2 An Affiliate, being a natural person, must be 18 years of age or older in order to become an approved Affiliate user of Lottery Affiliates.
7.3 The contact person identified on the Affiliate Application Form must be at least 18 years of age and be your authorized representative. By applying to become an approved user of Lottery Affiliates, in submitting an Affiliate Application Form, you are stating that the contact person identified on the Affiliate Application Form is at least 18 years of age and is your authorised representatives.
7.4 If your application is successful, you are required to keep an up to date and operational email address recorded within your Affiliate Account at all times.
7.5 The email address which you list on the Affiliate Application Form must be a valid and working address via which you have authority to receive emails.
8.1 TMS has built mechanisms to monitor transactions within Lottery Affiliates and highlight fraudulent activities. If you try to modify or artificially inflate traffic counts, revenue, or use any device or robot/program to defraud TMS and its Members, you will be reported to the appropriate authorities for fraud.
8.2 It is your responsibility as an Affiliate user of Lottery Affiliates to monitor transactions referred by you for fraud. If you suspect fraudulent activity relating to your referrals it is your responsibility to contact TMS immediately so appropriate measures can be undertaken to minimize further fraud occurring.
8.3 TMS is not liable for any loss or damage whatsoever caused by the fraudulent actions of you, Members and or Visitors.
8.4 TMS has the right, in its sole discretion, to determine (without any obligation to give any reason or explanation) whether any fraudulent activity has taken place and if any commissions generated from or associated with any such fraudulent activity have been earned then TMS has the right in its sole discretion to debit or credit (as appropriate) the relevant amount in respect of your account balance.
9. COMMISSION PAYMENTS
9.1 TMS will facilitate all payments of commission to you on behalf of Merchants, provided always that TMS is not liable in any way whatsoever for the payment of any commission to you if the Merchant does not pay the relevant commission to TMS in the first place (in other words, the payment of commission to you is dependent upon the Merchant paying the relevant commission to TMS).
9.2 TMS and the Merchants have the right to cancel any commission payment to you within 30 days of the transaction occurring, for reasons including, but not limited to, an order/lead being incomplete, fraudulent, or otherwise invalid. Any cancelled transactions will be removed from your account immediately.
9.3 Merchants can change the commission rate they wish to pay you at the Merchant's discretion, including the rate paid for trailing commissions. Merchants also can, at their sole discretion, discontinue the payment of trailing commissions at any time.
9.4 TMS has a monthly Affiliate Commission Pay Schedule and commissions are paid when your balance reaches a minimum amount, as outlined below:
a) minimum monthly payment for Australian Affiliates is AU$50.00;
b) minimum payment for USA and UK Affiliates is AU$100.00;
c) minimum payment for Affiliates from all other places is AU$150.00.
9.5 Affiliate Accounts deemed to be inactive will be removed from the Lottery Affiliates service at TMS’s discretion. An inactive Affiliate Account is defined as any account that has not been logged into for a period of 3 months or more, or had any transactions posted to that account which have generated a Commission.
10. COMMISSION TRACKING
10.1 By default Tracking Cookies are valid for a period of 30 days. Merchants who pay trailing commissions will have a cookie life equal to the duration of the agreed trailing period.
10.2 Merchants may choose at their discretion to set the Tracking Cookie to be less or more than the default period of 30 days.
10.3 Commission will be paid on each referred Visitor's transaction based upon the current Affiliate Tracking Cookie set for that visitor. If a cookie is not present signifying the last referring Affiliate and alternate tracking capabilities exist between the Merchant and TMS, that capability will be used to determine the last referring Affiliate.
10.4 You may not refer yourself as a visitor or end user with the aim of receiving referral commission. Referral commission in any earning associated with this type of self referrals will not be paid.
11. UNACCEPTABLE CONTENT/ACTIVITIES
11.1 You are prohibited from using Lottery Affiliates if you operate and/or own websites which contain:
- Content or links to pornography, explicit sexual images, or nudity;
- Content that promotes racism, hate, abuse or destructive actions;
- Content that is illegal or promotes illegal activities;
- Content that promotes business opportunities or investments which are not permitted under law;
- Pirated software or links to sites that promote pirated software;
- Another company and/or website's copyrighted material without their explicit prior approval to do so;
- Content and/or statements which are materially false, inaccurate or misleading;
- Content that is libellous or defamatory;
- Content that promotes hacking or links to hacking sites.
11.2 TMS will terminate this Agreement if you are found to be using any of the following methods to direct traffic to your website and/or Affiliate Tracking Links:
- Email SPAM / Unsolicited Commercial Email
- Blog & Comment SPAM
- Newsgroup SPAM
- AutoSurf programs
- Paid to Click, Paid to Read, Paid to Surf programs
- False or misleading links
- Cookie struffing
- Linking to the Merchant's website or any portion of it in a frame or by using framed techniques without express written consent.
In addition, wherever possible, you will not attempt to mask referring URL information (i.e. the page which a click originated from)
11.3 TMS reserves the right, at it sole discretion, to determine what content it deems appropriate on an Affiliate's website which is used to promote Merchant websites. If TMS requests that Affiliate Tracking Links be removed from your website(s) you must comply within 24 hours. If you do not comply with such a request, TMS reserves the right, at its sole discretion and at its option to suspend or terminate your account.
11.4 Unless otherwise approved by TMS, then TMS will terminate your account if your site contains programs that are incentives or provide rewards to your users for viewing advertisements. For the purposes of this subclause, "incentives" refers to any mechanism that rewards site users with cash, prizes, awards, points, contest entries and the like.
11.5 You may ask TMS in writing to agree to you being exempted from the provisions of clause 11.4 wholly or in part. TMS may, in its sole discretion agree to any such request you make for an exemption. If an exemption is granted by TMS, it may be rescinded at any time in the future without reason and in TMS's sole discretion. Any exemption granted by TMS will not be valid until it has been confirmed in writing by TMS and remains valid until rescinded by TMS.
12. TERM AND TERMINATION
12.1 This Agreement shall remain in effect until the Duration Period (if any) has expired or this Agreement is earlier or otherwise terminated.
12.2 This Agreement may be terminated voluntarily by TMS or you for any reason or no reason upon fourteen (14) days prior written notice, or immediately upon notice of any breach of the provisions of this Agreement.
12.3 Upon termination, you shall no longer be entitled to use Lottery Affiliates or receive commissions, including any trailing commissions, in respect of any current or prior Affiliate Programs conducted by you.
12.4 If this Agreement is terminated, but not as a result of a breach of this Agreement, TMS will pay you all outstanding commissions as per your account balance. If your account balance is below the minimum payment threshold as set out in the Affiliate Commission Pay Schedule, any fees within the account shall be forfeited by you, unless otherwise negotiated with TMS to make payment, with transfer fees being your responsibly.
12.5 Should there be any violation of these terms and conditions by you, TMS reserves the right to suspend or cancel your account with no payment of outstanding commission and immediate cancellation of the payment of commission for prior promotions conducted.
13.1 TMS is entitled, from time to time and in its absolute discretion to vary, amend or in any other way change any of the terms and conditions of this Agreement.
13.2 In the event TMS decides, in its own discretion, to vary or in any other way change the terms and conditions of this Agreement, those variations, amendments and changes will be published on the TMS's Website and TMS will provide you with email notification of the amendments after publication of the same on the Lottery Affiliate's Website.
13.3 Within 14 days of the amendments to the terms and conditions of this Agreement being published on the Lottery Affiliate's Website you agree that you are bound by the amendments.
13.4 You may terminate this Agreement, by written notice to TMS, within 14 days of any amendments to the terms and conditions of this Agreement being published on the TMS Affiliate's Website.
14.1 Any communication in connection with this Agreement:
a) maybe given by the relevant party or the solicitors for the relevant party;
b) must be in writing;
c) in case of you:
(i) to your address;
(ii) to your facsimile number; or
(iii) to your email address.
14.2 in the case of TMS:
a) to TMS's address;
b) to TMS's facsimile number;
c) to TMS's email address.
14.3 A communication sent by post is taken to be received on the day when, by the ordinary course of post, it would have been delivered.
14.4 A communication sent by facsimile is taken to be received on the day shown on the transmission report produced by the machine from which the facsimile was sent which indicates that the facsimile was sent in its entirety to your facsimile number of the recipient notified for the purpose of this clause, but if the time of transmission is after 5:00pm on a business day (at the place of transmission) the facsimile is to be taken to be received on the following day.
14.5 A communication sent by email is taken to be received on the day on which the email was sent as recorded by the computer transmitting the email, but if the email is sent after 5:00pm on a business day (at the place of transmission), the email is taken to be received on the following day.
15.1 You acknowledge that in entering into this Agreement you are not relying on any representations made by TMS or any anyone on behalf of TMS and that prior to submitting an Affiliate Application Form you have done so after due diligence satisfactory to you in relation to the operation of Lottery Affiliates and otherwise in relation to all matters arising out of this Agreement.
15.2 TMS does not provide any legal, accounting, financial or other professional advice. You should obtain your own legal, accounting, financial or other professional advice before entering into this Agreement.
15.3 TMS makes no representations whatsoever about any other website which you or your users may access through the Lottery Affiliates service. Further, a link to a non-Lottery Affiliates website does not mean that TMS endorses or accepts any responsibility for the content or the use of such website.
16. NO PARTNERSHIP, JOINT VENTURE OR AGENCY
16.1 This Agreement does not create any partnership, joint venture or agency relationship between you and TMS or between you and any Merchant or between you, TMS and any Merchants.
16.2 You are an independent contractor.
16.3 You are not an employee, partner, shareholder or director of TMS and you shall not enter into any agreements on behalf of TMS.
17.1 It is your sole responsibility to understand and abide by any Federal, State, Local or Foreign Tax Laws that may apply in respect of commission payments made to you.
17.2 You understand, acknowledge and agree that TMS may be required by law to provide information regarding your commission earnings to relevant taxation authorities (for example, the Australian Taxation Office or the Internal Revenue Service) or any other foreign government agency responsible for tax collection and tax law enforcement that requests such information concerning its citizens.
18. FURTHER ACTS
18.1 As requested by TMS, you must promptly do everything reasonably necessary to give effect to this Agreement.
19.1 If a person signs this Agreement on your behalf they hereby warrant that they have unrestricted authority to execute this Agreement on your behalf.
20.1 The Laws of Victoria, Australia govern this Agreement at all times. All parties are bound to the jurisdiction of the Australian Courts for the settlement of any disputes or claims that arise from participation in Lottery Affiliates or in connection with this Agreement.
21.1 TMS acknowledges that certain laws imply terms, conditions or warranties into contracts for the supply of goods or services that cannot be excluded. This clause 21 is not intended to exclude or restrict the application of such laws.
21.2 Subject to clause 21.1, TMS makes no express or implied warranties or representations with respect to Merchant websites, Merchant products, Affiliate Programs, any of TMS's products, or any of TMS's sites (including without limitation, any warranties of fitness, merchantability, non-infringement or any implied warranties arising out of a course of performance, dealing or trade usage).
21.3 Subject to clause 21.1, TMS makes no representation or warranty that the operation of TMS's sites or TMS's tracking & accounting systems will be uninterrupted or error-free, and TMS will not be liable for the consequences of any interruptions or errors.
22.1 You agree to indemnify TMS against and in respect of:
a) any loss, damages, claims, demands, costs or expenses or obligations direct or indirect which TMS has suffered sustained or incurred or may suffer sustain or incur by reason or in connection of:
i) any failure on your part to discharge all of your obligations under this Agreement;
ii) any breach by you of any term of this Agreement, including any implied terms of this Agreement;
iii) any negligence on your part arising out of or in any way associated or connected the performance of your obligations under this Agreement or your use of Lottery Affiliates.
b) any liability of TMS arising directly or indirectly from such a failure on your part and any costs and expenses incurred by TMS in respect of such liability.
22.2 This indemnity extends to claims by TMS for damages for breaches of this Agreement, including any essential terms of this Agreement and to TMS's reasonable legal and other expenses of seeking enforcement of those obligations against you or of recovery fees from you.
23. NO GUARANTEE
23.1 TMS gives no warranties, guarantees or representations regarding the revenue or profit you can make from Lottery Affiliates.
24.1 TMS will pay the GST on any taxable supply made by TMS under this Agreement.
24.2 TMS will deliver to you tax invoices in a form which complies with the GST Act and the regulations.
25. INTELLECTUAL PROPERTY
25.1 You agree that you have no claim, entitlement or rights whatsoever to any of the intellectual property rights of TMS in respect of Lottery Affiliates, save as is provided for in this Agreement.
26. AFFILIATE PROGRAM SUB-TERMS
26.1 Some Affiliate Programs within Lottery Affiliates have a set of sub-terms which the Merchant requires you to adhere to in order to participate in that Affiliate Program.
26.2 You agree that as a condition of being an approved Affiliate user of Lottery Affiliates, you will adhere to all affiliate program sub-terms as applicable in respect of an affiliate program.
26.3 If you breach any affiliate program sub-terms, TMS:
a) has the right to terminate your entitlement to participate in that Affiliate Program;
b) may, in its absolute discretion, terminate this Agreement.