Welcome and congratulations for joining our Affiliate program at Big Sky Innovations!
These following terms and conditions apply to individuals who are accessing or using the Program both as a merchant (“Big Sky Innovations”) and affiliate (“you” or “Affiliate Partner”) who refers customers to purchase product or service from the merchant.
By participating in the Program, Affiliate agrees to use the Program in the manner specified in, and are bound by, these Terms and Conditions. If you do not agree to these Terms and Conditions in their entirety you are not authorized to register as an Affiliate or participate in the Program in any manner.
If you have any questions you can send email to info@inflatablepontoons.com for support.
AFFILIATE PARTNER AGREEMENT
These Terms and Conditions together with The Schedule – Partner Guidelines (as updated from time to time) set out this Affiliate Partner Agreement (hereinafter called the “Agreement”). This Agreement is provided by the following organisation, hereinafter referred to as “Big Sky Innovations”: Big Sky Innovations Pty Ltd. Our primary website is located at bigskyinnovations.com. This Agreement is a legal document between Affiliate Partner and Big Sky Innovations that describes the affiliate relationship both parties are entering into wherein the Affiliate Partner shall carry out activities more fully described under “Affiliate Partner Services” (“Affiliate Partner”). This Agreement covers the Affiliate Partner’s responsibilities as an Affiliate Partner and Big Sky Innovations responsibilities. Please ensure you read and understand the entirety of this document, as well as have a lawyer’s assistance if desired because each of the terms of this Agreement is important to our working relationship.
TERMS AND CONDITIONS
1. CO-OPERATION BETWEEN PARTIES
1.1. Services. Big Sky Innovations is the sole owner and developer of its products (InflataFENCE® and Inflatable Pontoons), and all related services (“Big Sky Innovations Services”). Affiliate Partner represents that it has all necessary rights to provide the Affiliate Partner Services (defined below).
1.2. Content. Content provided by Big Sky Innovations in any medium or form pursuant to its products and services as may be shared by Big Sky Innovations with the Affiliate Partner from time to time.
1.3. Affiliate Partner Services. Affiliate Partner shall refer prospective clients via a Unique Tracking URL Link shared by Big Sky Innovations (“Unique Tracking URL Link”). For the purposes of this Agreement, clients referred to or lead(s) provided by the Affiliate Partner procured through the Unique Tracking URL link to Big Sky Innovations shall be referred to as “Partner Referral(s)”. For the avoidance of doubt, a potential client or Partner Referral who is already a customer of Big Sky Innovations, shall not be deemed as a valid Partner Referral for purposes of this Agreement. Affiliate Partner shall undertake to distribute, circulate, disseminate, publish, and broadcast Content provided by Big Sky Innovations and shall share such Content via media and channels as may be agreed upon by both parties with the inclusion of the Unique Tracking URL Link. Affiliate Partner shall at all times ensure compliance with the terms and conditions of this Agreement.
1.4. Non-Exclusivity. This Agreement is strictly non-exclusive, and Big Sky Innovations reserves the right to cooperate with multiple partners as per its business roadmap. Affiliate Partner’s appointment is only for the Term and does not constitute a grant of any specific, exclusive territory, geographical area, or particular market to the Affiliate Partner. Big Sky Innovations reserves the right to appoint other partners for the purposes of marketing and/or distributing its products on such terms and conditions as Big Sky Innovations may determine.
1.5. Independent Contractors. Affiliate Partner enters into this Agreement as an independent contractor and will remain, throughout the term stated in Section 3 below, as an independent contractor. This Agreement shall not be construed to create a relationship of employer and employee or a joint venture between the parties, and neither party shall have any right to obligate or bind the other in any manner. Neither party shall hold itself out as an authorised agent with the power to bind, or contract on behalf of, the other party in any manner.
1.6. Affiliate Partner Acceptance. Upon completion of the application to become an Affiliate Partner, Big Sky Innovations will review the application and notify the Affiliate Partner accordingly. To process for “Affiliate Partner”, Big Sky Innovations may reach out to the Affiliate Partner, and if Big Sky Innovations does not hear from the Affiliate Partner within thirty (30) days, Big Sky Innovations, at its sole option of discretion, may reject such an application from the Affiliate Partner. If the Affiliate Partner has been accepted to participate in the “Affiliate Partner Program”, upon notification of acceptance, the terms and conditions of this Agreement shall apply in full force and effect until terminated, pursuant to the terms set forth below.
1.7. Brand Usage Guidelines. The Affiliate Partner shall have the right to use the Big Sky Innovations logo only upon express written approval from Big Sky Innovations. The Affiliate Partner shall grant Big Sky Innovations the non-exclusive, non-transferable, royalty-free right to use and display Affiliate Partner’s trademarks, service marks and logos in accordance with instructions as may be prescribed by the Affiliate Partner from time to time.
1.8. Partner Referral Acceptance. For the Affiliate Partner to be eligible for revenue share (upon confirmation of “Partner Referral Acceptance by Big Sky Innovations”), the following conditions are expected to be fulfilled (i) Affiliate Partner must have a valid and existing Affiliate Partner Agreement with Big Sky Innovations, (ii) compliance with obligations as set out herein for the Affiliate Partner including Clause 1.3 and 1.6 as mentioned hereinabove, (iii) Big Sky Innovations must be able to track the Partner Referral via the Unique Tracking URL Link shared with the Affiliate Partner, and (iv) the Partner Referral must be accepted by Big Sky Innovations, and (v) there must be a Qualified Purchase made on Big Sky Innovations site by the Partner Referral
1.9. Training and Support. Big Sky Innovations may make available training and support related to its products and services to the Affiliate Partner, without charge, this may include engaging the Affiliate Partner for webinars and sharing of material resources that Big Sky Innovations may make available from time to time. The training and support to be provided by Big Sky Innovations shall be at Big Sky Innovations’ sole discretion.
1.10. Representations and Warranties. Affiliate Partner shall not make any representations, warranties, or commitments regarding its products or services offered by Big Sky Innovations other than as expressly permitted in writing by Big Sky Innovations.
The Affiliate Partner represents and warrants that the:
I. Affiliate Partner has sufficient rights and permissions to participate, engage with, and carry out the obligations as set forth hereunder, including compliance with applicable laws;
II. Affiliate Partner’s participation in the “Affiliate Partner Program” shall not be in conflict with any existing or future agreements or arrangements;
III. Affiliate Partner shall disclose all information to Big Sky Innovations relating directly or indirectly to the URL’s, webpages, websites, blogs, social media accounts, email domains, or the like, owned by the Affiliate Partner (“Virtual Real Estate”);
IV. Affiliate Partner shall not share the Unique Tracking URL Link on third-party webpages, websites, blogs, social media accounts, groups, forums, email domains ,or the like, that are not owned by the Affiliate Partner;
V. Affiliate Partner shall not purchase advertisements that direct to Affiliate Partner’s Virtual Real Estate which is competing with the products and services provided by Big Sky Innovations, including keywords, or shall not be a business in the domain “Conversion Rate Optimization”;
VI. Affiliate Partner shall not share “cookie stuffing” or pop-ups, false or misleading URL links as it shall be strictly prohibited;
VII. Affiliate Partner shall not attempt to mask the referring Unique Tracking URL Link or its information;
VIII. Affiliate Partner shall not use the Unique Tracking URL Link to purchase Big Sky Innovations’ products or services for the Affiliate Partner’s own use; including orders for their own use by customers, orders on behalf of customers, friends, relatives or their associates;
IX. Affiliate Partner shall only use Big Sky Innovations content (only upon explicit approval from Big Sky Innovations) on Affiliate Partner’s Virtual Real Estate;
X. Affiliate Partner must clearly and prominently state the following, or any substantially similar statement allowed under this Agreement, on any other location where Big Sky Innovations may authorize your display or other use of Program Content: “As an InflataFENCE® Affiliate I earn from qualifying purchases.”
XI. Except for this disclosure, and other than as required by applicable law, Affiliate Partner will not make any public communication with respect to this Agreement or your participation in the Affiliate Program without written permission by Big Sky Innovations.
XII. Affiliate Partner shall not misrepresent or embellish Big Sky Innovations’ relationship with the Affiliate Partner (including by expressing or implying that Big Sky Innovations support, sponsor, or endorse the Affiliate Partner or any other person or entity).
1.11. No Unfair Business Practices. Affiliate Partner represents and warrants that the Affiliate Partner shall not engage in any unethical or unfair business practices during the course of exercising its rights and performing its obligations under this Agreement (including providing or receiving any unauthorised payments or commissions to any personnel, of Big Sky Innovations, any Partner Referrals, or other parties) and that there are no conflicts of interest with Big Sky Innovations, any Partner Referrals, or other third parties, arising from the Affiliate Partner’s rights and obligations under this Agreement.
1.12. Marketing Activities. Parties shall mutually agree in writing the method, techniques, procedures, details, and means of performing marketing, demand generation, promotion, branding, selling, servicing, and/or other such activities as mutually agreed in writing (“Activities”). Parties shall observe all appropriate security and safety policies and procedures for performing the Activities. Activities shall be performed in an expeditious and professional manner, in accordance with the standard of care, skill, and diligence expected of parties who are experienced in providing similar services. In performing Activities, Affiliate Partner agrees to comply with all applicable laws, ordinances, rules, and regulations and to acquire and maintain in good standing all licenses and other governmental approvals and permits for the performance of Activities.
1.13. Email Publicity. Affiliate Partner shall not create, publish, transmit or distribute, under any circumstances, any bulk email messages (also known as “SPAM”) without prior written consent from Big Sky Innovations, to be granted or denied in Big Sky Innovations’ sole option of discretion, in each instance. Additionally, Affiliate Partner may only send emails containing the Unique Tracking URL Link and or a message regarding Big Sky Innovations or Big Sky Innovations’ Affiliate Program to potential Partner Referrals or Partner Referrals who have previously consented to receive such communications from the Affiliate Partner. Affiliate Partner’s failure to abide by this clause may cause Big Sky Innovations to breach applicable laws relating to email communications, including the Spam Act 2003, and shall, in any manner, be deemed a material breach of this Agreement by the Affiliate Partner and will result in the forfeiture by the Affiliate Partner of any and all rights the Affiliate Partner may have to any commissions and the termination of the Affiliate Partner’s participation in the “Affiliate Partner Program”. The Affiliate Partner shall indemnify Big Sky Innovations for any and all losses that may arise as a consequence of the breach of this Agreement. Further, if the Affiliate Partner’s account has excessive clicks on the Unique Tracking URL Link in a very short period of time, as determined by Big Sky Innovations in its sole discretion, the “Affiliate Partner Program” relationship for the Affiliate Partner may be terminated.
2. COMMISSIONS AND PAYMENT
2.1. Commissions. In return for Partner Referrals resulting in a purchase that is qualified for attribution, Big Sky Innovations shall pay the Affiliate Partner a commission amount which is calculated based on commission structure. Commission amount is dependent on order value and not including extra fees including tax and shipping costs. The receipt of revenue in accordance with the terms of Big Sky Innovations’ contract with the Partner Referral and upon compliance with the terms and conditions as set out herein by the Affiliate Partner (including fulfilment of the conditions set out in Clause 1.8 by the Affiliate Partner), Affiliate Partner shall be paid the revenue share via bank transfer or such other method and on such intervals as may be mutually agreed in writing between the parties. The payment of the revenue share by Big Sky Innovations shall be at Big Sky Innovations’ sole discretion.
2.2. Affiliate Partner expressly acknowledges that Big Sky Innovations sets the terms applicable to commissions for each campaign, including but not limited to payment structure and commission levels.
2.3. Expenses. Parties shall each be responsible for all costs and expenses incurred incident to this Affiliate Partner Agreement unless otherwise agreed to in writing by the parties.
2.4. Taxes. As an Affiliate Partner is not a Big Sky Innovations employee for any purpose or Big Sky Innovations is not an employee of Affiliate Partner for any purpose, including for tax purposes, Big Sky Innovations or Affiliate Partner shall not take any action or provide the other party with any inconsistent benefits or commitments. Affiliate Partner and Big Sky Innovations shall each be solely responsible for the payment of all of their own respective sales, use, or other taxes assessed against or associated with its services, including without limitation all of Affiliate Partner's income/Big Sky Innovations’ income, payroll, or employment-related taxes and payments.
2.5. Disqualified Purchases. Notwithstanding the foregoing, Qualifying Purchases are disqualified whenever they occur in connection with a violation of this Affiliate Partner Agreement or any other terms, conditions, specifications, statements, and policies that Big Sky Innovations may issue from time to time that apply to the Affiliate Program, including the most up-to-date version of the Agreement (collectively, the “Program Documents”).
Further, the following purchases that would otherwise be Qualified Purchases are disqualified and excluded from the Affiliate Program:
(a) any Product purchased after termination of the Agreement,
(b) any Product order where a cancellation, return, or refund has been initiated,
(c) any Product purchased that is referred to Big Sky Innovations’ site through any advertisement that the Affiliate Partner purchased through participation in bidding or auctions on keywords, search terms, or other identifiers that include the word “inflatafence”, or any other trademarks owned by Big Sky Innovations, or variations or misspellings of any of those words (e.g., “inflatablefence”, “instafence”) (all, a “Prohibited Paid Search Placement”),
(d) any Product purchased by that is referred to Big Sky Innovations’ site that is generated or displayed on a search engine (including Google, Yahoo, Bing, or any other search portal, sponsored advertising service, or other search or referral service, or any site that participates in such search engine’s network) (a “Search Engine”),
(e) any Product purchased that is referred to Big Sky Innovations’ site by a link that sends users indirectly to Big Sky Innovations’ site via an intermediate site, without requiring the customer to click on a link or take some other affirmative action on that intermediate site (a “Redirecting Link”),
(f) any Product purchased, where such customer does not comply with the terms and conditions applicable to Big Sky Innovations’ site,
(g) any Product purchase that is not correctly tracked or reported because the links from Affiliate Partner’s site to Big Sky Innovations’ site are not properly formatted,
(h) any Product purchased through a Special Link in a Mobile Application that was not an Approved Mobile Application or where the Special Link in an Approved Mobile Application was not served by PA API (as defined below under the IP License) or other linking tools that Big Sky Innovations make available to Affiliate Partner,
(i) any Product purchased by the Affiliate Partner through the Affiliate Partner’s own links. This includes orders on behalf of customers, and orders for products to be used by the Affiliate Partner (including their friends, relatives, or associates in any manner),
(j) any Product purchased as a subscription unless otherwise provided in the Agreement, and
(k) any pre-release or pre-order Product that is not available on a Product listing page,
(l) any Product on promotion or sale by Big Sky Innovations.
3. TERM AND TERMINATION
3.1. Term. Unless otherwise agreed in writing, this Agreement is effective from the effective date and shall be valid for a period of six months from the effective date. Any renewal of the Agreement shall be subject to mutual agreement.
3.2. Termination for Convenience. Either party may terminate this Agreement for convenience by providing written notice of 7 days to the other party.
3.3. Termination for Breach. Either party may terminate this Agreement:
(a) at any time on written notice to the other party in the event of (i) a material breach of this Agreement by the other party (ii) immediately if the other party becomes insolvent, has filed for bankruptcy, or if a notice or demand for winding up has been issued in respect of such party.
(b) immediately with notice and without cause.
3.3.1. Further, Big Sky Innovations may terminate this Agreement immediately and without notice if Affiliate Partner engages in Unethical Activities or conducts a material breach of this Agreement.
3.3.2. Big Sky Innovations may suspend its provision of the Services or Affiliate Partner's participation in any Campaign, or disable Links, where Big Sky Innovations believes it is necessary to protect Big Sky Innovations, Big Sky Innovations' Associated Companies, Advertisers or Users from any damage, loss or liability, including, without limitation, if Big Sky Innovations believes Affiliate Partner is engaged in any Unethical Activities.
3.3.3. If Big Sky Innovations exercises its rights of suspension under clause 3.3.2. Big Sky Innovations shall notify Affiliate Partner as soon as practicable and resume provision of Services and/or Affiliate Partner’s participation in the Campaign as soon as it is satisfied the reason for suspension no longer applies.
3.3.4. Except for Big Sky Innovations’ obligations in clause 6.1., Big Sky Innovations shall be relieved of all liability, duty and obligation to Affiliate Partner (including, without limitation, any payment obligation) during the period of such suspension. For the avoidance of doubt, Affiliate Partner shall not be entitled to any commission, compensation or any other form of payment from Big Sky Innovations in respect of any period of suspension, whether or not the suspension is lifted and Affiliate Partner is subsequently re-granted access to the Big Sky Innovations network.
4. INTELLECTUAL PROPERTY
4.1. Retention of Rights. All patents, copyrights, trade secrets, trademarks, and other intellectual property rights associated with Big Sky Innovations will remain its sole property. Big Sky Innovations grants to Affiliate Partner only the rights stated herein.
5. LIABILITY
5.1. Indemnity. Each party will indemnify, defend, and hold harmless the other party and its officers, directors, employees, and agents (collectively, the "Indemnified Parties") from and against all claims, demands, losses, damages, and liability, including, without limitation, all attorneys' fees, court costs, expenses, and other costs of investigation and preparation (collectively "Liability"), arising out of or in connection with the loss of life, bodily injury, personal injury, damage to property or any other loss or injury occasioned by reason of (i) the negligent act or omission or intentional misconduct of a party or anyone under a party’s control, and/or (ii) any default by a party in the observance or performance of any of the terms or conditions of this Agreement to be observed or performed by the party; and/or (iii) should any of the Activities or the provision of or utilization thereof, as contemplated under this Agreement, infringe, violate, trespass or in any manner contravene or breach or constitute the unauthorized use or misappropriation of any intellectual property of any third party. The indemnity obligations in this Clause shall survive the expiration or earlier termination of this Agreement.
5.2. Limitation of Liability. Big Sky Innovations’ maximum liability to Affiliate Partner in relation to Affiliate Partner’s direct losses arising from Big Sky Innovations’ breach of any provision of this agreement shall not exceed the commission received or properly due to Affiliate Partner in the 3 months prior to the event which gave rise to liability.
6. GENERAL PROVISIONS
6.1. Confidentiality. Each party undertakes in respect of Confidential Information for which it is the recipient: (i) to treat such information as confidential; (ii) to disclose such Confidential Information only to those employees on a need-to-know basis who are directly involved in the performance of this Agreement, (ii) not to communicate or disclose any part of such Confidential Information to any third party without the disclosing party’s prior written consent, (iv) upon termination, expiry or at the request of the disclosing party, to return all such Confidential Information to the disclosing Party. The obligations in this Clause 6.1 will not apply to any Confidential Information: (i) in the recipient’s possession (with full right to disclose) before receiving it; (ii) which is or becomes public knowledge other than by breach of this Clause; (iii) independently developed by the recipient without access to or use of the Confidential Information; or (iv) required to be disclosed in accordance with applicable laws and regulations, provided that to the extent permitted by applicable law, the recipient shall notify the disclosing party of such requirement prior to such disclosure.
6.2. Entire Agreement. This Agreement sets forth the entire agreement with respect to the subject matter herein and supersedes all prior or contemporaneous agreements, whether written or oral between the parties.
6.3. Dispute Resolution. This Agreement is subject to the laws of the state of Queensland, Australia and shall be governed by the laws of the state of Queensland, Australia. Big Sky Innovations will be entitled to seek injunctive or other equitable relief to remedy any threatened or actual breach of this Agreement.
6.4. Assignment. This Agreement and all rights and obligations may not be assigned in whole or in part by either party without the prior written consent of the other, except that the rights and obligations of Big Sky Innovations may be assigned to another entity in connection with a reorganisation, merger, consolidation, acquisition, or other restructuring involving all or substantially all of the voting securities and/or assets of such party. Any attempted assignment in contravention of this Clause shall be void and of no effect.
6.5. Amendment. Any additions or modifications to this Agreement must be made in writing with the mutual consent of both the parties and must be signed by an authorised signatory of both the parties.
6.6. No Waiver. No failure or delay by either party in exercising any right, power, or remedy under this Agreement, except as specifically provided herein, will operate as a waiver of any such right, power, or remedy.
6.7. Force Majeure. Except with regard to payment obligations, either party shall be excused from delays in performing or from failing to perform its obligations under this Agreement to the extent the delays or failures result from causes beyond the reasonable control of the party, including, but not limited to: default of subcontractors or suppliers; failures or default of third party software, vendors, or products; acts of God or of a public enemy; governmental actions; acts of terrorism, strikes; communications, network/internet connection, or utility interruption or failure; fire; flood; epidemic; and freight embargoes.
6.8. Severability. If any provision hereof is declared invalid by a court of competent jurisdiction, such provision shall be ineffective only to the extent of such invalidity so that the remainder of that provision and all remaining provisions of this Agreement will continue in full force and effect.
THE SCHEDULE
Affiliate Partner Guidelines
1. Each Partner undertakes to Big Sky Innovations that it shall not engage in any fraudulent, unethical or unlawful activity, any activity which is not transparent to, nor in the best interests of Big Sky Innovations, Advertisers and/or Users, or any activity that intentionally or unintentionally misuses or circumvents this Agreement, the Services and/or the payment terms herein ("Unethical Activities"). Examples of Unethical Activities include, but are not limited to:
1.1. use of inappropriate software (whether third party or otherwise) in order to create financial gain for Partner;
1.2. bidding on legally-protected key terms within paid search, or any other third party advertising system based on keywords, without Big Sky Innovations' and/or Advertiser's prior approval;
1.3. implementing links that are placed in such a way that is misleading to Users or where there is an incentive to click on them without a User's full knowledge of the consequences of their actions. For example, activating a cookie which may later mean a conversion of sale to the owner of the Partner link ('forced clicks'), or otherwise causing or enabling links to Advertisers which are not made in good faith;
1.4 promotion by unsolicited email;
1.5 mimicking the action of a Partner link click which results in a cookie being stored on a User's machine which could later lead to the conversion of a sale to said Partner; or
1.6 promoting, distributing or otherwise publishing any content that includes content on the Site, which is libellous, defamatory, obscene, pornographic, abusive, fraudulent or violates any law.
2. Each Partner shall protect and maintain the confidentiality of their logins, Links and other data used to manage access to the Platform and Campaigns and shall ensure that a third party may not change Partner's details without Partner's knowledge.
3. Each Partner must specify the URLs it will use to track Transactions as part of the sign up process via the Platform ("Authorised URLs"). Big Sky Innovations may ignore Transactions entered into via URLs other than Authorised URLs and/or withhold Commission in respect of them. A Partner may add additional or substitute URLs from time to time via the Platform, but such URLs will only become operational once confirmed as such by Big Sky Innovations as Authorised URLs.
4. From time to time, Big Sky Innovations may request information from Partner to evidence how and where Partner is promoting its Site and Partner shall supply such information promptly to Big Sky Innovations.
5. If any Partner or User has configured its system in order to disable any technology confirming the means of referral, Big Sky Innovations will treat the User as not having been referred by any Partner.
6. All information in the Program must be complete and accurate at all times. Big Sky Innovations reserves the right to request proof of Partner's identity at any time. If Partner does not provide this within the time period specified by Big Sky Innovations, then Big Sky Innovations may terminate this Agreement on immediate notice.
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