PEAKHOUR AFFILIATE AGREEMENT

This Agreement sets forth the terms and conditions between Peakhour.io Pty Ltd (ABN 76 619 930 826) (Peakhour) and its Affiliates. The Affiliate wishes to market Peakhour's Service and receive a commission when a New Client purchases a Service.

  1. Interpretation
    1. In this Agreement, the following terms have the stated meaning:
      Account
      means an account created and held by the Affiliate with Peakhour.
      Affiliate
      means each entity that submits an Application and is approved to act as an affiliate by Peakhour in accordance with clause 3.2.
      Affiliate Cookie
      has the meaning given to it in clause 5.2.
      Affiliate Link
      has the meaning given to it in clause 5.1.
      Application
      means an application to be appointed by Peakhour as an Affiliate, submitted to Peakhour through Peakhour's website.
      Client
      means each licensee of the Service.
      Commission
      means, in respect of each New Client, an amount equivalent to the lowest monthly fee payable by the New Client in the first three months of its licence.
      Existing Client
      means a Client that has a current or past licence of the Service.
      Force Majeure
      means an event that is beyond the reasonable control of Peakhour, excluding:
      (a) an event to the extent that it could have been avoided by Peakhour taking reasonable steps or reasonable care; or
      (b) a lack of funds for any reason
      Governing Law
      means the law of New South Wales, Australia.
      Intellectual Property Rights
      means all forms of intellectual property rights throughout the world including copyright, registered patents, design, trade mark, know-how, trade-secrets and confidential information, and includes any enhancement, modification or derivative work based on the same.
      New Client
      means a Referral that has purchased a Service from Peakhour within 90 days of becoming a Referral but excluding an Existing Client.
      Referral
      means a web browser that has received an Affiliate Cookie.
      Service
      means the software as a service provided by Peakhour which acts as an intermediary between the Website and the users of the Website.
      Website
      means each website of a New Client in respect of which the Service is operating.
  2. Term
    1. Where Peakhour accepts an Application, this Agreement will commence on the date that the Application was submitted and ends on the earlier of:
      1. the date the Application is rejected by Peakhour; and
      2. the date this Agreement is terminated in accordance with its terms.
  3. Appointment
    1. By submitting an application to Peakhour to register as an Affiliate, an entity agrees to be bound by the terms and conditions of this Agreement. Peakhour reserves the right to refuse an Application in its absolute sole discretion and without providing a reason.
    2. Once Peakhour accepts an Affiliate's application by notice in writing to the Affiliate, and provided the Affiliate acts at all times in compliance with this Agreement, the Affiliate is licensed and authorised on a non-exclusive, non-assignable and revocable basis to:
      1. promote and market the Services;
      2. use such documentation and materials as may be provided by Peakhour solely for the purpose of promoting and marketing the Services; and
      3. create and distribute documentation and materials solely for the purpose of promoting and marketing the Services.
  4. Eligibility
    1. An Affiliate must:
      1. at all times, have a valid ABN (Australian Business Number) and (if required under law) be registered for GST;
      2. provide valid bank account details for the payment of Commission;
      3. provide valid and correct information as required in the Application, including contact details;
      4. immediately advise Peakhour of any changes to any of the above information; and
      5. at all times, maintain an Account.
    2. Peakhour reserves the right to terminate this Agreement if Peakhour reasonably deems the Affiliate to be unsuitable to represent Peakhour.
  5. New Clients
    1. Each Affiliate will be assigned a unique link to the Peakhour website (Affiliate Link) which the Affiliate may use to refer prospective Clients.
    2. A prospective Client that uses an Affiliate Link to access Peakhour's website will receive a cookie identifying the Affiliate in their web browser (Affiliate Cookie) if the browser does not already have an Affiliate Cookie set. The Affiliate Cookie expires after 90 days.
    3. The Affiliate acknowledges that:
      1. that the Affiliate will only be eligible for Commission in respect of services purchased by a Referral (that is, where the browser used to purchase a Service on behalf of a prospective Client has an active Affiliate Cookie); and
      2. the Affiliate is solely responsible for ensuring that each Referral maintains the Affiliate Cookie on the Referral's web browser.
  6. Affiliate Obligations
    1. In the course of this Agreement, the Affiliate must always:
      1. act in accordance with this Agreement and all applicable laws (including in relation to privacy and spam); and
      2. exercise reasonable care, skill and diligence.
    2. In the course of this Agreement, the Affiliate must never:
      1. make false claims, warranties or misrepresentations about the Service;
      2. imply, act or behave indicating that the Affiliate is the agent of, or represents, Peakhour;
      3. promote the Service in association with material that is:
        1. sexually explicit or violent;
        2. racist or discriminatory;
        3. infringing someone else's rights, including Intellectual Property Rights; or
        4. of an unlawful nature.
    3. The Affiliate must notify Peakhour in writing of any dispute within 7 days of the issue arising.
    4. Peakhour reserves the right to review the material and information created and distributed by the Affiliate (including its website) in connection with this Agreement. If Peakhour reasonably believes there are any issues with such materials or information, or the behaviour of the Affiliate, Peakhour may request that any issues be resolved within 24 hours. If issues are not resolved to Peakhour's satisfaction, Peakhour may terminate this Agreement immediately.
  7. Peakhour's Obligations
    1. Peakhour will maintain a report within the Account showing the number and status of all Referrals and New Clients.
    2. Prior to paying Commission to an Affiliate, Peakhour will generate a recipient created tax invoice reflecting the Commission payable and email it to the Affiliate's nominated email address. It will also be available to download from the Account.
  8. Commission
    1. Peakhour will pay the Affiliate the Commission for each Website for which a New Client purchases a Service, provided that:
      1. the Affiliate Cookie is on the web browser used to purchase the Service. Peakhour cannot control if the Referral deletes the Affiliate Cookie or uses a different browser than the browser that was used to follow the Affiliate Link; and
      2. the New Client maintains its paid licence of the Services for at least 3 months (excluding any trial period).
    2. Peakhour may, at its discretion, terminate this Agreement or set off, withhold or recover from, the Affiliate, a Commission paid or payable to the Affiliate if:
      1. Peakhour, in its reasonable discretion, believes a New Client is fraudulent or to be for the Affiliate's own use or a related entity of the Affiliate;
      2. Peakhour, in its reasonable discretion, believes an entity that the Affiliate alleges is a New Client is an Existing Client;
      3. a New Client claims a chargeback in respect of any amount paid to Peakhour; or
      4. the Affiliate breaches any of its obligations under this Agreement, including clause 6.
    3. Peakhour reserves the right to change the amount of the Commission on a prospective basis only at any time by giving the Affiliate notice in writing.
  9. Payments
    1. Payments will be made to the Affiliate's nominated bank account once a month if the balance owing exceeds $100.
  10. Termination
    1. Notwithstanding any other provision of this Agreement:
      1. the Affiliate may terminate this Agreement without cause immediately by notice in writing to Peakhour; and
      2. Peakhour may terminate this Agreement without cause by one months' notice in writing to the Affiliate.
    2. Upon termination of this Agreement for any reason all rights granted to the Affiliate under, or in accordance with, this Agreement immediately cease. Except as set out in clause 10.3(a), on termination, the Affiliate is not entitled to any further amounts including Commission.
    3. In the event this Agreement is terminated:
      1. by either party under clause 10.1, Peakhour will pay the Affiliate a Commission in respect of all Referrals of the Affiliate that purchase a Service with an Affiliate Cookie active (including if purchased after termination); and
      2. in any other circumstance, Peakhour reserves the right to withhold any outstanding Commission at its sole discretion.
    4. Clauses which, by their nature, are intended to survive termination of this Agreement, continue in force.
  11. Indemnity
    1. The Affiliate will defend, indemnify and hold harmless Peakhour from and against any and all actions, claims, demands, costs, losses, damages and expenses which may be brought against, suffered or incurred by Peakhour directly or indirectly and in connection with:
      1. any breach by the Affiliate of its obligations or warranties under this Agreement;
      2. any actual or alleged infringement by the Affiliate or its personnel of the Intellectual Property Rights or moral rights of any third party;
      3. any act or omission by the Affiliate or the Affiliate's personnel; or
      4. the Affiliate's use or misuse of its Account, Services or its status as an Affiliate.
  12. Warranties
    1. Each party warrants that it has full power and authority to enter into and perform its obligations under this Agreement which, when agreed to, will constitute binding obligations on the warranting party.
  13. General
    1. Force Majeure: Neither party is liable to the other for any failure to perform its obligations under the Agreement to the extent caused by Force Majeure, provided that the affected party:
      1. immediately notifies the other party and provides full information about the Force Majeure;
      2. uses best efforts to overcome the Force Majeure; and
      3. continues to perform its obligations to the extent practicable.
    2. Waiver: To waive a right under the Agreement, that waiver must be in writing and signed by the waiving party.
    3. Relationship: The Affiliate is an independent contractor of Peakhour, and no other relationship (e.g. joint venture, agency, trust or partnership) exists under this Agreement.
    4. Notices: A notice given by a party under the Agreement must be delivered to the other party via email or other address notified by the other party for this purpose.
    5. Severability: Any illegality, unenforceability or invalidity of a provision of the Agreement does not affect the legality, enforceability or validity of the remaining provisions of the Agreement.
    6. Variation: Any variation to the Agreement must be in writing and signed by both parties.
    7. Entire agreement: This Agreement sets out everything agreed by the parties relating to the Service, and supersedes and cancels anything discussed, exchanged or agreed prior to the start of this Agreement. The parties have not relied on any representation, warranty or agreement relating to the subject matter of this Agreement that is not expressly set out in this Agreement.
    8. Assignment: The Affiliate may not assign, novate, subcontract or transfer any right or obligation under this Agreement. The Affiliate remains liable for its obligations under this Agreement despite any approved assignment, subcontracting or transfer. Any assignment, novation, subcontracting or transfer must be in writing.
    9. Law: This Agreement is governed by, and must be interpreted in accordance with, the Governing Law. Each party submits to the non-exclusive jurisdiction of the Courts of the Governing Law.