Terms - Microkeeper Referral Program Agreement

This Microkeeper Referral Program Agreement ("Agreement") is entered into by Microkeeper Pty Ltd. ("Microkeeper") and the referring party executing this Agreement ("Participant"). This Agreement governs Participant’s participation in the Microkeeper Referral Program described herein (the "Program"). You represent and warrant that: (i) you have full legal authority to enter into this Agreement; (ii) you have read and understand the Agreement, and (iii) you agree to the terms of this Agreement. If you do not have legal authority to enter into this Agreement or do not agree to these terms, please do not click to accept this Agreement below.

This Agreement is effective between Participant and Microkeeper as of the date Participant electronically accepts this Agreement.

1. Definitions

"Custom URL" means the unique URL or Domains Widget to be provided by Microkeeper to Participant and which will correlate Eligible Referrals submitted by Participant to Participant’s Program account.

"Embed Link" means an embeddable key or code that allows users to register accounts and purchase the Services on a Participant’s website.

"Eligible Referral" means an eligible new customer lead for the direct online purchase of the Services directly from Microkeeper, excluding Ineligible Referrals.

"Ineligible Referrals" means government officials, government owned or -controlled entities and any of their employees, political parties and candidates, Services customers of resellers, any other individuals or entities already in Microkeeper’s systems, and Microkeeper representatives, agents or employees

"Participant" means a member of the Program with a primary place of business or residence in the Territory that is a business, entity, or other individual with a valid tax ID number but may not include (i) government officials, government owned or -controlled entities and any of their employees, (ii) political parties and candidates, and (iii) representatives, agents, or employees of Microkeeper.

"Program Guide" means any set of applicable Program terms in addition to this Agreement that Microkeeper may make available to Participant via the Resource Portal and that will govern Participant's continued participation in the Program.

"Referral" is a new customer lead for Services submitted by Participant, via its Custom URL, to Microkeeper.

"Referral Fees" means the fees to be paid by Microkeeper to Participant for Eligible Referrals that result in a Valid Transaction.

"Resource Portal" means the website provided by Microkeeper to Participant containing Program resource tools and information.

"Valid Transaction" is a closed sale for Services originating through a Participant’s Custom URL and which is made online directly between an Eligible Referral and Microkeeper in compliance with the requirements for payment of Referral Fees.

2. Program Overview. In compliance with this Agreement Participant will promote the Services only to Eligible Referrals whose principal place of business located in Australia. Participant will not market the Services to any Ineligible Customers. Microkeeper will provide Participant with a Custom URL for the purpose of correlating any Eligible Referrals resulting in a Valid Transaction under this Agreement. Microkeeper may issue Incentives to Participant in accordance with the restrictions and guidelines in this Agreement.

As applicable, and subject to the requirements herein, Participant may include on its website and in its marketing materials for the Services the Custom URL provided by Microkeeper. A Valid Transaction must always originate from Participant’s Custom URL to qualify for Referral Fees.

Microkeeper may elect to create an applicable Program Guide which may include updates regarding applicable Referral Fees, Incentives and other relevant Program details. The terms of any such Program Guide are made part of this Agreement and will control over any conflicting term in the body of this Agreement.

3. Distribution of Custom URL and Incentives. Participant will use best efforts to distribute the Custom URL and Incentives: (a) only to Eligible Referrals; and (b) only after Microkeeper has approved the distribution by providing Participant with the Custom URL and any applicable Incentives. All marketing materials (including without limitation the text of email distributions, if any) must be (i) strictly consistent with any Program instructions provided by Microkeeper, (ii) compliant with the terms and conditions of this Agreement and all applicable marketing, privacy and data protection laws and governmental regulations. Any e-mail distribution must: (x) offer recipients the ability to opt-out of future Participant communications; and (y) contain the Microkeeper governing terms and conditions for any Incentives when offered. At Microkeeper’s request, Participant will block distribution of Custom URL and Incentives to parties as Microkeeper designates in its sole discretion, consistent with applicable laws.

4. Compliance. In addition to the other legal requirements in this Agreement, Participant expressly agrees to comply with the following:

• 4.1. Anti-Bribery Laws and Reporting. Participant will comply with all applicable commercial and public anti-bribery laws ("Anti-Bribery Laws"), including, the Criminal Code Act 1995 (Commonwealth of Australia), the U.S. Foreign Corrupt Practices Act of 1977 and the UK Bribery Act of 2010, which prohibit corrupt offers of anything of value, either directly or indirectly to anyone, including government officials, to obtain or keep business or to secure any other improper commercial advantage. "Government officials" include any government employee; candidate for public office; and employee of government-owned or government-controlled companies, public international organizations, and political parties. Furthermore, Participant will not make any facilitation payments, which are payments to induce officials to perform routine functions they are otherwise obligated to perform. If Participant becomes aware of suspicious, illegal or fraudulent activity occurring in relation to this Agreement, Participant will report the suspicious or fraudulent activity to Microkeeper within 24 hours of identifying the suspicious or fraudulent activity.

• 4.3 Acceptable Use Policy. Participant will not send, post, transmit or otherwise use any Microkeeper provided content, including the Microkeeper name or the Services, in connection with any materials, sites or otherwise that: (i) will generate or facilitate unsolicited bulk commercial emails; (ii) will, or otherwise encourage, the violation of the legal rights of others; (iii) is for an unlawful, invasive, infringing, defamatory, or fraudulent purpose; (iii) contains obscene or pornographic content.
• 4.4 Certification. Participant represents, warrants and certifies to Microkeeper that: (i) it has legal authority to enter into these terms and participate in the Program; (ii) its employment contract (if applicable) does not restrict it from participating in the Program, and where Participant is also a representative, agent or an employee of a Microkeeper reseller it has also obtained a valid consent from its employer to participate; (iii) each Referral submitted by Participant will be reasonably made in good faith as an Eligible Referral; and (iv) it will comply with all applicable laws and governmental regulations, including without limitation, as described in this Section 4 above.

5. Termination and Modification of Terms. Microkeeper may at any time and in its sole discretion: (i) modify or update the terms of, including but not limited to, the Program, this Agreement, Incentives (and their governing terms and conditions) and will make such modified or updated terms available in writing, or (ii) revoke a Participant's account, and/or terminate Participant’s participation in the Program in its entirety. If Microkeeper provides Participant with an updated Custom URL, or Incentives (and applicable terms and conditions), Participant agrees will begin using, and will be subject to, such updated versions no later than 30 days after receiving them.

6. Brand Features. Each party will own all right, title and interest to trade names, trademarks, service marks, logos and domain names it secures from time to time ("Brand Feature(s)"). Subject to the terms and conditions of the Agreement (including without limitation the following sentence), Microkeeper grants to Participant a nonexclusive and non-sublicensable license during the Term to display Microkeeper’s Brand Features only to the extent Brand Features are provided by Microkeeper for use with the Program as indicated through the Resource Portal and solely for the limited purpose of promoting the Services consistent with this Agreement. Additionally, all use of Microkeeper Brand Features is at Microkeeper’s sole discretion.

Subject to the terms and conditions of the Agreement, Participant grants to Microkeeper a nonexclusive and non-sublicensable license during the Term to display Participant’s Brand Features solely for the purpose of marketing the Program or as otherwise mutually agreed upon (email permitted).

7. Payment.

• 7.1 Referral Fees. Microkeeper will pay Participant a fee for each Eligible Referral’s end user that results in a Valid Transaction, to be paid on up to a maximum of 1000 end users per Valid Transaction, in the fee amount described at the following URL: https://microkeeper.com.au/referral-program.php (or such other URL as Microkeeper may designate from time to time). Referral Fee and relevant currency of the Referral Fee will be determined based on the country the Australia dollar value. Referral Fees may also differ based on the location on the Eligible Referral. Referral Fees will be calculated by using the lowest quantity of Eligible Referral end users purchased during the period beginning as of the 10th day of initial Services payment through the completion of the 30 days period described in (d) below (provided all other Valid Transaction requirements are met). A Valid Transaction will only take place when an Eligible Referral: (a) registers online directly with Microkeeper using a valid payment instrument for the purchase of Services; (b) purchase originates from a Custom URL or Custom Promo Code or the mobile number or email address matches one submitted by the Participant into Microkeeper, correlating to Participant’s account; (c) does not already have, directly or indirectly, a Services subscription; (d) has been invoiced for and from whom Microkeeper has received payment for, at least a minimum period of 30 days for a subscription on the same primary Services domain; and (e) where all the foregoing occurs during Participant’s period of participation in the Program. Microkeeper may, at its sole option, prospectively increase or decrease Referral Fees amounts by providing written notice (email/electronic communication permitted) to Participant, or updating this Agreement and/or any applicable Program Guide. Microkeeper reserves the right, in its sole discretion not to pay any Referral Fees to Participant where Microkeeper determines Participant’s actions are not consistent with the intent of this Program.

• 7.2. Incentives. Microkeeper may elect to provide Participant with Incentives to offer its Eligible Referrals from time to time. Use of any applicable Incentives will be subject to the governing terms and conditions as provided by Microkeeper.
• 7.3. Payment Process. In order for Participant to receive any Referral Fees Participant must submit their bank details as required by Microkeeper and maintain a valid banking account within the Australia. Microkeeper will pay Participant the Referral Fees in the form of a direct deposit to the banking account as indicated by Participant via the Program registration process. The Referral Fees above are exclusive of taxes, and Microkeeper might withhold or charge taxes if determined by law. Additional payment terms may need to be accepted by Participant for the payment of Referrals Fees to Participant’s banking account. Referral fees will be issued to Participant on a monthly basis. All amounts referenced or payable under this Agreement are in AUD unless Microkeeper notifies otherwise.

Participant is solely responsible for ensuring its account information is accurate and current. Microkeeper will not be responsible for any payments not received due to Participant failing to provide accurate and complete account information for payment, or any other relevant or required information.

Microkeeper reserves the right, in its sole discretion, to change the terms and conditions of the payment process to Participant.

8. Restrictions. Participant will not, and will not allow any third party to: (a) "frame," minimize, remove, or otherwise inhibit, the full and complete display of any Microkeeper web page; (b) cause any hyperlinks to web pages on the Microkeeper web site to create a new browser window; or (c) otherwise display Microkeeper web pages or Brand Features in a distorted or diluted fashion.

9. Term; Termination. The Term will continue until terminated by either party as provided herein. Either party may terminate this Agreement immediately with or without cause upon written notice to the other party (email notice permitted). Upon any termination or expiration of this Agreement, all licenses and rights granted will terminate and each party will have no right to use the Brand Features of the other party. In the event of a termination, Participant will only receive Referral Fees that were earned in full for a Valid Transaction that occurred prior to the effective termination date.

10. Confidentiality. Participant may not disclose the terms, conditions or existence of any non-public aspect of the Program to any third party, except to its professional advisors under a strict duty of confidentiality or as necessary to comply with law.

11. Disclaimers; Limitation of Liability. EACH PARTY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION FOR NON-INFRINGEMENT, SATISFACTORY QUALITY, MERCHANT-ABILITY AND FITNESS FOR ANY PURPOSE. TO THE FULLEST EXTENT PERMITTED BY LAW, THE PROGRAM AND CUSTOM URL IS PROVIDED "AS IS" AND AT PARTICIPANT’S OPTION AND RISK AND MICROKEEPER DOES NOT GUARANTEE ANY RESULTS. EXCEPT FOR (I) BREACHES OF SECTION 4 (COMPLIANCE); (ii) BREACHES OF SECTION 6 (BRAND FEATURES); AND (iii) SECTION 12 (INDEMNIFICATION), TO THE FULL EXTENT PERMITTED BY LAW REGARDLESS OF THE THEORY OR TYPE OF CLAIM: (A) NO PARTY MAY BE HELD LIABLE UNDER THIS AGREEMENT OR ARISING OUT OF PERFORMANCE OF THIS AGREEMENT FOR ANY DAMAGES OTHER THAN DIRECT DAMAGES, EVEN IF THE PARTY IS AWARE OR SHOULD KNOW THAT SUCH DAMAGES ARE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY AND (B) NO PARTY MAY BE HELD LIABLE FOR DAMAGES UNDER THIS AGREEMENT IN THE AGGREGATE OF MORE THAN THE AMOUNT PAID BY MICROKEEPER TO PARTICIPANT UNDER THIS AGREEMENT IN THE 3 MONTHS BEFORE THE DATE OF THE ACTIVITY GIVING RISE TO THE FIRST CLAIM.

12. Indemnification. Participant will defend, indemnify and hold harmless Microkeeper, its affiliates, directors, officers and employees against all liabilities, damages, losses, costs, fees (including legal fees), and expenses relating to any allegation or third-party legal proceeding to the extent arising out of: (a) Participant’s participation in the Program; (b) Participant’s web site(s), Participant Brand Features and Microkeeper’s use of any Participant content (provided that such use complies with the requirements of the Agreement); and (c) Participant’s breach of any representation or warranty in this Agreement.

13. Representations and Warranties. Participant warrants that (a) Participant will use all information provided by Microkeeper (including without limitation the Microkeeper Brand Features) in a manner that complies with applicable law; (b) Participant will clearly and conspicuously display the text of the applicable terms and conditions for Incentives provided to Customers in accordance with this Agreement; and (c) Participant will conduct all activities in furtherance of this Agreement in accordance with applicable law.

14. Governing Law and Arbitration.

14.1 Governing Law. ALL CLAIMS ARISING OUT OR RELATING TO THIS AGREEMENT OR ANY RELATED MICROKEEPER PRODUCTS OR SERVICES (INCLUDING ANY DISPUTE REGARDING THE INTERPRETATION OR PERFORMANCE OF THE AGREEMENT) ("Dispute") WILL BE GOVERNED BY THE LAWS OF THE STATE OF VICTORIA, AUSTRALIA.

14.2 Arbitration and Disputes. The parties will try in good faith to settle any Dispute within 30 days after the Dispute arises. 

15. Miscellaneous. All notices, unless otherwise stated herein, must be in writing and addressed to the attention of the other party’s Legal Department and primary point of contact. Notice will be deemed given when delivered (a) when verified by written receipt if sent by personal courier, overnight courier or mail or (b) when verified by automated receipt of electronic logs if sent by facsimile or email. Participant will not assign or otherwise transfer its rights or delegate its obligations under the Agreement, in whole or in part, and any attempt to do so will be null and void. The Agreement is not intended to benefit, nor shall it be deemed to give rise to, any rights in any third party. The parties are independent contractors and the Agreement does not create any agency, partnership, or joint venture. No party is liable for inadequate performance to the extent caused by a condition that was beyond its reasonable control. Failure to enforce any provision will not constitute a waiver. If any provision is found unenforceable, the balance of the provisions will remain in full force and effect. In the event of any termination or expiration of the Agreement, Sections 5, 9, 10, 11 and 12 shall survive. This Agreement is the parties’ entire agreement relating to its subject and supersedes any prior or contemporaneous agreements on that subject. Any amendments must be in writing and executed by both parties (electronic form acceptable).

Last updated: 16/08/2018