Effective Date: 23/07/2020
Primary Website: https://www.vesica.com.au
THE AGREEMENT: This Affiliate Agreement (the “Agreement”) is provided by Vesica (the “Company”). Our primary website is located at the address listed above. The Agreement is a legal document between you and the Company 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 document, because each of the terms of this Agreement are important to our working relationship.
The parties referred to in this Agreement shall be defined as follows:
a) Company, Us, We: As we describe above, we will be referred to as the Company. Us, we, our, ours and other first-person pronouns will also refer to the Company, as well as all employees, contractors or legal agents and representatives of the Company.
b) You, the Affiliate: You will be referred to as the “Affiliate.” You’ll also be referred to throughout this Agreement with second-person pronouns such as You, Your, or Yours.
c) Parties: Collectively, the parties to this Agreement (the Company and You) will be referred to as the “Parties” or individually as a “Party.”
d) Affiliate Program: The program we’ve set up for our affiliates as described in this Agreement.
e) Affiliate Application: The fully completed form which must be provided to us for consideration of your inclusion in the Affiliate Program.
f) Website: The primary website we’ve noted above will be referred to as Website.
2) ASSENT AND 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 leave the website immediately and do not submit an application to our Affiliate Program. This Agreement specifically incorporates by reference any Terms of Service, Privacy Policies, End User License Agreements, or other legal documents which we may have on our Website.
3) AGE RESTRICTION
You must be at least 18 (eighteen) years of age to join our Affiliate Program or use this Website. By submitting an application to our Affiliate Program, you represent and warrant that you are at least 18 years of age and may legally agree to this Agreement. The Company assumes no responsibility or liability for any misrepresentation of your age.
4) PROGRAM SIGN-UP
Submitting an Affiliate Application does not guarantee inclusion in the Affiliate Program. We evaluate each 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. We are not obligated to provide you any explanation for your 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.
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 apply 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.
6) AFFILIATE PROGRAM
After your acceptance in the Affiliate Program, you must ensure your account is set up thoroughly, including specific payout information and location (via a PayPal email address).
Please be advised 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 link, which can be found in your Vesica affiliate account. This link will be keyed to your identity and will send online users to the Company’s website or websites. You hereby agree to fully cooperate with us regarding the link and that you will explicitly comply with all of the terms of this Agreement for the promotion of the link at all times. We may modify the specific link or links and will notify you if we do so. You agree to only use links which are prior approved by us and to display the link prominently on your website or social media page, as described in your Affiliate Application (collectively, the “Affiliate Site”).
Each time a user clicks through the link posted on the Affiliate Site and signs up for an account you will be notified by email. This does not mean they have purchased anything. At the end of each month you will receive the agreed upon commission for each purchase. The month’s commission will be a percentage of the total charges of each sales you have referred.
7) SPECIFIC TERMS APPLICABLE
We will determine whether payout is permissible in our sole and exclusive discretion. We reserve the right to reject sales that do not comply with the terms of this Agreement.
Processing and fulfillment of orders will be our responsibility. We will also provide a monthly report along with your commission each month.
As described above, in order to be eligible for payout, user purchases must be “Qualified Purchases.” Qualified Purchases:
a) May not be referred by any other partner or affiliate links of the Company;
b) May not be purchased by an already-existing partner or affiliate of the Company;
c) May not be purchased prior to the Affiliate joining the Affiliate Program;
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 the Company’s sole and exclusive discretion; and
g) May not have been induced by the Affiliate offering the customer any coupons or discounts, unless in conjunction with a pre-approved campaign.
8) PAYOUT INFORMATION
Currently, the Company employs the following methods of payout: PayPal.
You are responsible for any tax form or requirements.
For any changes in your address or accounting information, you must notify us promptly and we will endeavour to make the changes to your payout information promptly.
Payouts will be available the month or period after they accrue. Pay outs are made by the 3th of each month for the previous months sales.
For any disputes regarding or related to payouts, you must notify the Company within 30 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 days of payout will not be addressed.
You can check your affiliate report at anytime by going to your affiliate management area within Vesica. It contains your referred active people and their monthly charges along with your percentage and payout commission.
10) TERM, TERMINATION AND SUSPENSION
The term of this Agreement will begin when we accept you into the Affiliate Program. It can be terminated by either Party at any time upon written notice, 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 of this Agreement or any other legal terms we have posted anywhere on our Website(s), 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 outlined herein, including but not limited to, violating the intellectual property rights of the Company or a third party, failing to comply with applicable laws or other legal obligations, violating our Acceptable Use policies, 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.
11) INTELLECTUAL PROPERTY
You agree that the intellectual property owned by the Company includes all copyrights, trademarks, trade secrets, patents, service marks, and other intellectual property belonging to the Company (“Company IP”).
Subject to the limitations listed below, we hereby grant you a non-exclusive, non-transferable, revocable license to access our Website(s) in conjunction with the Affiliate Program and use the Company IP solely and exclusively in conjunction with identifying our Company and brand on the Affiliate Site to send customers to the Affiliate links we provide. You may not modify the Company IP in any way and you are only permitted to use the Company IP if you are an Affiliate in good standing with us.
We may revoke this license at any time and if we find that you are using the Company IP in any manner not contemplated by this Agreement, we reserve the right to immediately terminate this Agreement.
Other than as provided herein, you are not permitted to use any of the Company IP or any confusingly similar variation of the Company IP without our express prior written permission. This includes a restriction on using the Company 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 unauthorized use of any Company IP shall constitute unlawful infringement and we reserve all of our rights, including the right to pursue an infringement suit against you in federal court. You may be obligated to pay monetary damages or legal fees and costs.
You hereby provide us with a non-exclusive license to use your name, trademarks, logos, and/or service marks (as applicable) and other intellectual property to advertise our Affiliate Program.
12) MODIFICATION AND VARIATION
The Company may, from time to time and at any time, modify the terms of this Agreement. You agree that the Company 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 upon posting on the Website and that any modifications or variations will modify and 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 of this Agreement, we will notify you via electronic means, which may include an email. If you don’t agree to the update or replacement, you can choose to terminate this Agreement as described herein.
a) To the extent any part or sub-part 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.
13) RELATIONSHIP OF THE PARTIES
Nothing contained within this Agreement shall be construed to form any partnership, joint venture, agency, franchise, or employment relationship. You are an independent contractor of the Company and will remain so at all times.
14) ACCEPTABLE USE
You agree not to use the Affiliate Program or our Company 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(s), products, services, branding, or the general business of the Company.
You further agree not to use the Affiliate Program:
a) To harass, abuse, or threaten others or otherwise violate any person’s legal rights;
b) To violate any intellectual property rights of the Company or any third party;
c) To upload or otherwise disseminate any computer viruses or other software that may damage the property of another;
d) To perpetrate any fraud;
e) To engage in or create any unlawful gambling, sweepstakes, or pyramid scheme;
f) To publish or distribute any obscene or defamatory material;
g) To publish or distribute any material that incites violence, hate, or discrimination towards any group;
h) To unlawfully gather information about others; or
i) Send unsolicited marketing messages or calls (i.e., spam).
15) AFFILIATE OBLIGATIONS AND FTC AND GDPR COMPLIANCE
You are responsible for ensuring 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 these the terms of this Agreement, we have the right to immediately terminate this Agreement and/or your participation in the Affiliate Program.
We require all of our Affiliates, and you hereby agree, to comply, with all applicable statutes, regulations, and guidelines set by the federal government, through the Federal Trade Commission, as well as state and local governments as mandated. The Federal Trade Commission requires that affiliate relationships, such as the relationship between you and the Company, be disclosed to consumers.
We also require you, and you hereby agree, 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 of the European Union.
16) REVERSE ENGINEERING AND 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 or on any of our Websites or services; and
b) Violate the security of any of our Websites or services through any unauthorized access, circumvention of encryption or other security tools, data mining or interference to any host, user or network.
17) DATA LOSS
The Company shall not any 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 the Company and any of its agents (if applicable) and hold us harmless against any and all legal claims and demands, including reasonable attorney’s fees and expenses, 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 the Company shall be able to select its own legal counsel and may participate in its own defense, if the Company wishes.
19) SPAM POLICY
You are strictly prohibited from using the Affiliate Program for illegal spam activities, including gathering email addresses, phone numbers and personal information from others or sending any mass commercial emails, texts or voicemails.
20) 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.
21) SERVICE INTERRUPTIONS
The Company 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 the Company shall have no liability for any damage or loss caused as a result of such downtime.
22) 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. The Company hereby expressly disclaims any and all express or implied warranties of any kind, including but not limited to the implied warranties of fitness for a particular purpose, merchantability, non-infringement or system integration. The Company makes no warranties that the Affiliate Program will meet your needs or that it will be uninterrupted, error-free, or secure. The Company 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 loss of your data from your use of the Affiliate Program is your sole responsibility and that the Company is not liable for any such damage or loss.
23) LIMITATION ON LIABILITY
The Company is not liable for any damages that may occur to you as a result of your participation in Affiliate Program, to the fullest extent permitted by law. This section applies to any and all claims by you, including but not limited to, lost profits or revenues, incidental, consequential or punitive damages, negligence, strict liability, fraud, or torts of any kind.
24) GENERAL PROVISIONS:
a) LANGUAGE: All communications made or notices given pursuant to this Agreement shall be in the English language, and may be made via email or fax.
b) GOVERNING LAW, JURISDICTION, VENUE AND ATTORNEYS FEES: The Parties agree that the laws of the Commonwealth of Australia shall govern any matter or dispute relating to or arising out of this Agreement, as well as any dispute of any kind that may arise hereunder, with the exception of its conflict of law provisions. In case any litigation specifically permitted under this Agreement is initiated, the Parties agree to submit to the sole, exclusive and personal jurisdiction of the state and federal courts. The Parties agree that this choice of law, venue, and jurisdiction provision is not permissive, but rather mandatory in nature. You hereby waive the right to any objection of venue or jurisdiction. The prevailing Party in any proceeding arising hereunder shall be entitled to recover its costs and expenses incurred, including reasonable attorneys’ fees and expenses.
c) ARBITRATION: In case of a dispute between the Parties relating to or arising out of this Agreement, the Parties shall first attempt to resolve the dispute in good faith. If these resolution attempts fail, the Parties shall then submit the dispute to binding arbitration. Each Party shall pay their own costs and fees; provided, however, the arbitrator may award the prevailing party its costs and expenses incurred, including reasonable attorneys’ fees and expenses. Claims by the Company regarding intellectual property may not be subject to arbitration and may, as an exception to this sub-part, be litigated. The Parties, in agreement with this sub-part of this Agreement, waive any rights they may have to a jury trial in regard to arbitral claims.
d) ASSIGNMENT: This Agreement, or the rights granted hereunder, may not be assigned, sold, leased or otherwise transferred in whole or part by you. Should this Agreement, or the rights granted hereunder, by assigned, sold, leased or otherwise transferred by the Company, the rights and liabilities of the Company will bind and inure to any assignees, administrators, successors, and executors.
e) SEVERABILITY: If any part or sub-part of this Agreement is held invalid or unenforceable by a competent court of law or arbitrator, all remaining parts and sub-parts of this Agreement shall remain in full force and effect.
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 of any other provision. Waiver of any part or sub-part of this Agreement will not constitute a waiver of any other part or sub-part.
g) HEADINGS FOR CONVENIENCE ONLY: Headings of parts and sub-parts under this Agreement are for convenience and organization, only. Headings shall not affect the meaning of any provisions of this Agreement.
h) FORCE MAJEURE: The Company is not liable for any failure to perform due to causes beyond its reasonable control including, but not limited to, acts of God, acts of civil authorities, acts of military authorities, riots, electrical outages or blackouts, hacks or denial of service attacks, embargoes, acts of nature and natural disasters, and other acts which may be due to unforeseen circumstances.
i) ELECTRONIC COMMUNICATIONS PERMITTED: Electronic communications are permitted to both Parties under this Agreement, including e-mail or fax. For any questions or concerns, please email us here