Affiliate Terms

Affiliate Terms and Conditions ("Affiliate Terms")

C&N Enterprises Pty Ltd t/a Naughty Ads Affiliate Terms and Conditions

April 2021

These Terms and Conditions ("Afilliate Terms") form a legally binding agreement between an Affiliate or an approved Affiliate ("Affiliate") ("you" or "your") and C&N Enterprises Pty Ltd t/a Naughty Ads, Level 9 27 Russell Street South Brisbane QLD 4101, incorporated in Australia, ABN 94 160 117 779  ("Naughty Ads") concerning the Naughty Ads Affiliate Program ("Affiliate Program or "Program" or "Services") ("Agreement").

Within these Affiliate Terms:

- all references to "we", "us" and "our" is a reference to Naughty Ads
- "Unsuitable Website" has the meaning given to it in clause 2
- references to Naughty Ads' discretion means Naughty Ads' sole and absolute discretion; and
- the words "including"and "includes"are not words of limitation

PLEASE READ THESE TERMS CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS.

Please note the clauses in these Affiliate Terms take precedence over any competing clauses that may be present in other agreements, and prevail over any inconsistencies.
You should print off and/or save a copy of these Terms for your records and regularly check your emails and this web page for any changes to these Terms

1. JOINING THE AFFILIATE PROGRAM

1.1. Any person that accesses the Program Interface (as defined in Clause 2.) and then markets Naughty Ads and its Product, by any means, contemporaneously becomes (and is accepted by Naughty Ads as becoming) a Naughty Ads affiliate (Affiliate), joins the Naughty Ads Affiliate Program and agrees to market Naughty Ads and its Products (as defined in clause 2.) in accordance with these Affiliate Terms. The Affiliate is also agreeing to the terms of Naughty Ads' Privacy Policy, which can be found here.

1.2 Becoming and maintaining an Affiliate Account requires having and retaining a Naughty Ads User account.

1.3. You may not apply to or participate, or allow any of your agents to participate, in the Program or accept this Agreement if you are under 18 years of age, or are otherwise precluded from participating in the Program under the laws of the country in which you are resident

1.4. The Affiliate warrants that they or any agent who controls their Affiliate Account have all necessary authority to bind the Affiliate

1.5. Continued particpation in the Affiliate Program is at the sole discretion of Naughty Ads and participation may be terminated in accordance with Clause 14 (TERMINATION AND SUSPENSION).  

1.6. These Affiliate Terms will together constitute a legally binding "Agreement" entered into by Naughty Ads and the Affiliate. 

1.7. You may not apply to or participate in the Program unless you accept this Agreement.

1.8. This Agreement prevails over any terms regarding the Affiliate Program

1.9. Naughty Ads may make changes to this Agreement from time to time, including changes to the applicable Commission ("Commission"). Where Naughty Ads believes the update to be significant (in Naughty Ads' sole opinion), Naughty Ads will provide you notice by email. Any changes published on our website will be taken to be effective when they are published. The terms contained herein will always be the latest modification of this Agreement. If you do not agree to any variation to this Agreement, you may terminate this Agreement in accordance with clause 14

2. DEFINITIONS

The following definitions and rules of interpretation apply in this Agreement. Please note that is list is not exhaustive and does not include terms defined elsewhere (outside of Clause 2) within these Affiliate Terms:

"ABN" has the meaning given to that term in the GST Act

"Action" means a Sale, Lead, Click, Ad Impression, or other events, that has been specified as eligible for remuneration by Naughty Ads, on which commissions (Commission) may be based under this Agreement;

"Ad Impression" means a display of an advertisement of, or link to Naughty Ads by the Affiliate, as reported by the Tracking Code or the Affiliate Code only;

"Affiliate Code" or "Affiliate Promo Code" means the unique code or number assigned to an Affiliate which is used to track the referral of a new user of Naughty Ads by the Affiliate;

"Naughty Ads Materials" means any trademarks, advertising content, images, text, video, data or other material provided by Naughty to the Affiliate;

"Naughty Ads URLs" means, from time to time, any websites, apps or services of Naughty Ads' to which the Affiliate may link;

"Advertising Standards" means any applicable advertising laws, regulations or standards, data laws relating to advertising (including the Children's Online Privacy Protection Act), including without limitation any FTC Guidance, any generally accepted self-regulatory codes of practice, and any related guidance or best practice advice;

"Affiliate Account" means the respective account of the Affiliate on the Interface;

"Affiliate Service" means a website, application or service operated by the Affiliate capable of marketing Naughty Ads and its respective Products/Services;

"Application Form" means the registration form at https://www.naughtyads.com.au/register or by which Advertisers, Punters or Bloggers apply to participate in the Program;

"Advertiser" or "Advertisers means Naughty Ads user with an advertiser account;

"Punter" or "Punters" means a Naughty Ads user with a punter account;

"Blogger" means a Naughty Ads user with a blogger account;

"User Account" means the account of a paying Advertiser or Punter or other paying account referred to on the Program Interface;

"Approved Lead" means a Lead approved by Naughty Ads in accordance with clause 5;

"Approved Sale" means a Sale approved by Naughty Ads in accordance with clause 5;

"Authorised User" means an individual permitted to view, or view and operate, the Affiliate Account on behalf of the Affiliate, by its individual authorised Affiliate Account, as set out in clause 3;

"Authorised Affiliate Account" means the account of an individual on the Interface, permitted to view, or view and operate, the Affiliate Account on behalf of the Affiliate, as set out in clause 3;

"Bonus" means an ad hoc payment by Naughty Ads to an Affiliate in return for a specific promotion or other marketing activity;

"Business Day" means a day other than a Saturday, Sunday or national public holiday in Australia;

"Change of Control" means a change in the beneficial ownership of more than 50% of the issued share capital of a company or a change in the majority of the Persons with the legal power to direct or cause the direction of the general management of a company;

"Click" means the intentional and voluntary following of a Link by a Visitor as part of marketing services as reported by the Tracking Code only;

"Code of Conduct" means Naughty Ads' code of conduct for Affiliates, as may be amended or updated by Naughty Ads at its discretion on notice to the Affiliate;

"Commission" means the amount payable to the Affiliate in return for marketing Naughty Ads and its Products, in accordance with the Terms and the terms of this Agreement and as displayed on the Program Interface;

"Confidential Information" means any information disclosed by or relating to a party, including: information arising during the Term of this Agreement; information about a party's business affairs; information about a party's operations, products or trade secrets; information about a party's technology (including any know-how and source code) and any derivatives of any part of any of them and which (i) is marked or identified as confidential; or (ii) would be regarded as confidential by a reasonable business person;

"CPA" means a Commission earned per Approved Sale;

"CPC" means a Commission earned per valid Click;

"CPL" means a Commission earned per Approved Lead;

"CPM" means a Commission earned per one thousand Ad Impressions;

"Data Regulation" means any applicable data protection, privacy or similar laws that apply to data processed in connection with this Agreement, including the Privacy Act 1988, for EU citizens any regulations implementing the Data Protection Directive 95/46/EC (the "Directive") or Privacy and Electronic Communications Directive 2002/58/EC and for US citizens, FTC Guidance, US state and federal legislation relating to data privacy and security;

"Data Processor" means anyone who processes data

"Data Collector" means anyone who collects data

"Effective Date" means the date of acceptance of a person into the Affiliate Program by Naughty Ads;

"FTC Guidance" means the published cases and guidelines from the United States Federal Trade Commission, including without limitation the guidance on the substantiation of claims, privacy, data security, native advertising and disclosure guidance for influencers and spokespeople.

"Group Company" means any holding company or subsidiary of a party or any of its holding companies. A company is a "subsidiary" of another company, its "holding company", if that other company

(i) holds a majority of the voting rights in it, or

(ii) is a member of it and has the right to appoint or remove a majority of its board of directors,

(iii) or is a member of it and controls alone, pursuant to an agreement with other members, a majority of the voting rights in it;

"GST" has the meaning given to that term in the GST Act;

"GST Act" means the A New Tax System (Goods and Services Tax) Act 1999 (Cth);

"Intellectual Property Rights" means all copyrights and related rights, patents rights to inventions, utility models trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights (including any database rights in the Network), topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world;

"Interface" or "Program Interface" means the intranet or internet and software platform operated by Naughty Ads, to provide the Services;

"Lead" means a 'sales lead' of an Advertiser generated in the Tracking Period, as reported by the Tracking Code only;

"Link" means a hyperlink from a Promotional Space to Naughty Ads;

"Network" means the marketing network of affiliates and Advertisers operated by Naughty Ads to facilitate, amongst other things, affiliate and performance marketing;

"Network Fee" means the fee payable to Naughty Ads, calculated as an override fee of an amount equal to a specified percentage of any total Commissions and Bonuses due, or on such other basis as may be agreed by Naughty Ads and the affiliate;

"Product" means a product, service or equivalent offered by Naughty Ads on any Naughty Ads URL;

"Promotional Space" means any advertising inventory appearing on the Affiliate Service, or means of delivering Naughty Ads Materials enabled by the Affiliate Service;

"Owner" means a single authorised User with full access to, and control of, the Affiliate Account and which is at all times authorised to act on behalf of the Affiliate and bind the Affiliate;

"Sale" means the agreed purchase of a Product by a Visitor in the Tracking Period, as reported by the Tracking Code only;

"Self-billing invoices" means tax invoices issued by Naughty Ads on behalf of the Affiliate in accordance with clause 7.4.1.;

"Self-referring" means the Affiliate markets accounts to Naughty Ads that are owned, either in any part or in whole, by the Affiliate, or managed by the Affiliate;

"Services" or "Affiliate Program" means the services or assistance provided by Naughty Ads under this Agreement;

"Sub-affiliate" means the operator of a website, application or service, which has agreed with the Sub-network to market Naughty Ads and it's Product;

"Sub-network" means the operator of a marketing network of further affiliates to facilitate, amongst other things, affiliate and performance marketing, which has entered this Agreement to join the Network to market Naughty Ads and its products as an Affiliate;

"Suspension" means the suspension by Naughty Ads of the provision of the Services to the Affiliate for a period of time, including the following:

(i) preventing the Affiliate from accessing the Interface;

(ii) withholding payments otherwise due to the Affiliate;

(iii) ceasing to track Actions;

(iv) removing any Naughty Ads Materials from the Affiliate Service and "Suspend" shall be interpreted accordingly;

"Term" means the term of this Agreement from the Effective Date until its termination or expiry in accordance with clause 14 or 17.4;

"Tracking Code" means the Naughty Ads' software code (from time to time), including an Affiliate's unique tracking url or unique Affiliate Code, for the recording of, amongst other things, web traffic and Actions;

"Tracking Period" means the period of time in which the Actions of a Visitor are attributed to the Affiliate and, subject to the Program Terms, generate Commissions for the Affiliate;

"Unsuitable Website" means any website that Naughty Ads' deems to be unstuiable for the Affaliate to display the Naughty Ads Materials

"Validation Period" means the period of time during which Naughty Ads may approve or decline Sales and Leads; and

"Visitor" means any Person who follows a Link.

In this Agreement:

- any terms in the Application Form shall have the meaning applied to them as set out in these Affiliate Terms;

- the terms "Data Controller", "Data Processor", "Data Subject", "Personal Data", "Process" and "Processing" have the meanings given to them in any applicable regulations implementing the Directive;

- "include" or "including" is without limitation;

- the singular will include reference to the plural and vice versa;

- a "Person" includes an individual, company, partnership or unincorporated association;

- a statute, order, regulation or other similar instrument will include any amendments to it or replacements of it; and

- "writing" and "written" includes emails but not faxes.

- the singular will include reference to the plural and vice versa;

If there is a conflict between the Application Form and the Affiliate Terms, the Affiliate Terms shall prevail.

3. PROVISION AND USE OF THE SERVICE AND THE INTERFACE

3.1. Subject to the Affiliate's compliance with this Agreement, Naughty Ads will:

permit the Affiliate's participation in the Program for its assignment of the Promotional Space;

and grant the Affiliate access to the Interface.

3.2. Naughty Ads may change any aspect of the Interface at its sole discretion.

3.3. On the Effective Date, the Affiliate shall:

3.3.1. Register an Affiliate Account; and

3.3.2. Nominate an authorised User as Owner of that Affiliate Account.

3.4. Each Affiliate Account may have only one Owner and must have an Owner at all times. Each Affiliate Account may have a reasonable number of authorised Users (if the functionality is made available by Naughty Ads).

3.5. The Owner may not assign its Owner status to another authorised User via the Interface at any time without the express consent by Naughty Ads.

3.6. To the extent enabled by the Interface, Authorised Users shall be allocated permissions to view, or view and operate, the Affiliate Account by the Owner, acting on behalf of the Affiliate. Authorised Users may, on behalf of the Affiliate, also allocate permissions to view, or view and operate, the Affiliate Account, provided that no Authorised User may grant greater permissions than they themselves hold. The Owner may, at any time, withdraw the permission of any Authorised User to view and/or operate the Affiliate Account. These permissions only apply if the Interface has the functionality to facilitate the changes outlined in this clause.

3.7. The Affiliate undertakes that:

3.7.1. the Owner, shall remain authorised to act on behalf of the Affiliate and bind the Affiliate;

3.7.2. all Authorised Users are permitted to view, or view and operate, the Affiliate Account in accordance with any permissions granted on the Interface, which shall be kept up to date by the Affiliate;

3.7.2.1. it shall use best endeavours to ensure that the Owner and all Authorised Users shall:

-  access the Interface in their own name under their own Authorised Affiliate Account; and

-  keep any passwords confidential.

3.7.3. Naughty Ads shall not be liable for any losses or damages suffered by the Affiliate due to the disclosure of any Affiliate Account or Authorisied Affiliate Account passwords.

3.7.4. The Affiliate shall remain primarily responsible and liable for all activities occurring under any of the Authorised Affiliate Accounts and the acts or omissions of any Authorised Affiliate.

3.7.5. If the Affiliate suspects that a third party has gained unauthorised access to access data, the Affiliate shall inform Naughty Ads immediately by sending an e-mail to support@naughtyads.com.au.

3.7.6. Naughty Ads may Suspend or withdraw any Authorised Affiliate Accounts at its discretion, or on request by the Affiliate.

3.7.7. Under this Agreement, Naughty Ads may:

3.7.7.1. provide any aspect of the Services or the Interface (including the granting of sublicenses and licenses under clause 10);

3.7.7.2. enjoy any benefit, or exercise any right;

3.7.7.3. satisfy any of Naughty Ads' obligations.

3.8 Any referring or referred user accounts that are linked to an existing promotional or account banned user will not be eligible to participate in the referral program nor be afforded any benefits thereunder.

4. MARKETING

4.1. The Affiliate may request to market Naughty Ads and its Product at their discretion by applying to participate in the Affiliate Program. Naughty Ads may approve or refuse such requests at their discretion. The Affiliate may only market Naughty Ads and its Products under this Agreement with Naughty Ads'continued approval.

4.2. Naughty Ads may apply the Affiliate Terms, contained herin, at its discretion. Naughty Ads may change the Affiliate Terms at any time. The Affiliate is solely responsible for ensuring it is aware of any changes to the Affiliate Terms.

4.3. Subject to the Affiliate's compliance with this Agreement and the Affiliate Terms, and the continued approval by Naughty Ads, Naughty Ads will provide the Affiliate the Naughty Ads Materials.

4.4. Naughty Ads, however, is not obliged to review any Naughty Ads Materials or check their legality or accuracy.

4.5. Naughty Ads may deactivate any Links at its sole discretion.

4.6. The Affiliate shall remove any Naughty Ads Material from any location stipulated by Naughty Ads immediately upon request by Naughty Ads.

5 TRACKING AND VALIDATION

5.1. The Tracking Code and Tracking Policy will be used as the sole basis for recording and determining Actions and Commissions. No other means of recording or determining Actions or Commissions shall be used under this Agreement

5.2. Sales and Leads will only be attributed to the Affiliate where the Tracking Code records that the Affiliate was responsible for the most recent referral of the Visitor to Naughty Ads prior to that Sale or Lead, unless expressly agreed in writing by Naughty Ads

5.3. Naughty Ads may approve or decline Sales and Leads at their discretion.

6. ACTIONS, COMMISSIONS AND BONUSES

6.1. The amount of any Commissions is as may be displayed on the Interface. CPA Commissions in respect of Approved Sales will be determined as either:

6.1.1. a percentage of the GST-exclusive purchase price of the Product(s) subject of the Approved Sale, as set out on the Interface; or

6.1.2. a fixed amount, irrespective of the purchase price of the Product(s) subject of the Approved Sale, as set out on the Interface.

6.2. Naughty Ads may change the amount of Commission offered on notice to Affiliates. 

6.3. Bonuses may be agreed by the Naughty Ads and Advertisers at Naughty Ads' discretion and must be processed via the Interface.

6.4. Commissions and Bonuses shall only be due:

6.4.1. on receipt by Naughty Ads of the corresponding payment in respect of that Action; and

6.4.2. in respect of Actions procured in accordance with this Agreement and any applicable Program Terms.

6.5. Without prejudice to any other rights or remedies of Naughty Ads, if Naughty Ads reasonably suspects that any Commissions paid under this Agreement have been generated in breach of this Agreement, Naughty Ads may set off or deduct the amount of such Commissions from any future payments due to the Affiliate or from any funds held to the Affiliate's account from time to time (whether under this Agreement or any other agreement between Naughty Ads and the Affiliate). Such deduction shall constitute a genuine pre-estimation of the loss suffered by Naughty Ads as a result of the payment of such Commission in breach of this Agreement. Naughty Ads will also deduct from the Affiliate account balance any Commissions earned from any payment that has been reversed (e.g. chargeback or refund) even if this results in a negative balance for the Affiliate account.

7. INVOICING AND PAYMENT

7.1. If applicable, any Sign Up Deposit will be refunded to the Affiliate on first payment of any Commission or held as pre-authorisation on a credit card and released up to thirty (30) days later.

7.2. Naughty Ads will pay the Affiliate:

7.2.1. Commissions in respect of each Approved Sale, Approved Lead, Clicks or one thousand Ad Impressions; and

7.2.2. Bonuses agreed between the Affiliate and Naughty Ads

7.3. Payment of Commissions are for the amount set out in the Program Interface

7.4. Self-billing invoices for Commissions and Bonuses can be accessed by the Affiliate via the Interface. Self-billing will be implemented as follows:

7.4.1. The Affiliate authorises Naughty Ads to prepare and issue tax invoices and adjustments notes for Commissions and Bonuses on the Affiliate's behalf to Naughty Ads.

7.4.2. Self-billing tax invoices will only be issued by Naughty Ads where the supplier provides their ABN, unless Naughty Ads dedicdes otherwise.

7.4.3. The Affiliate agrees not to issue invoices or tax invoices for any Commissions and Bonuses generated under this Agreement.

7.4.4. Naughty Ads will no longer be authorised to issue Self-billing invoices where Naughty Ads gives the Affiliate notice in writing to such effect. This will take effect from the date specified in the notice.

7.4.5. The Affiliate warrants that:

7.4.5.1. any information regarding the Affiliate's ABN and GST registration provided to Naughty Ads is correct; and

7.4.5.2. the Affiliate will immediately notify Naughty Ads if it becomes GST registered, cancels its GST registration, cancels its ABN or commences operating under a new ABN.

7.4.6. Naughty Ads, as the service recipient, is currently registered for GST and will notify the Affiliate in the event that it ceased to be registered for GST.

7.4.7. The Affiliate indemnifies Naughty Ads against any loss, cost or expense incurred by Naughty Ads where the Affiliate breaches this clause 7.4, including any penalties and interest.

7.5. the Affiliate will immediately update Naughty Ads via email if it:

7.5.1. no longer have an active ABN; or

7.5.2. have changed or updated your GST status; or

7.5.3. transfer your business as a going concern; or

7.5.4. become registered under another ABN

7.6. In case where an Affiliate is not, or ceases to be registered for GST, or does not hold an ABN, the Affiliate will provide Naughty Ads with the reasons for not quoting for an ABN using the applicable form issued by the ATO.

7.7. Naughty Ads may engage third-party service providers to administer the issuing of self-billing invoices under this Agreement.

7.8. Naughty Ads will pay all self-billed invoices subject to:

7.8.1. any minimum payment thresholds implemented by Naughty Ads from time to time being satisfied;

7.8.2. the correct, accurate and complete bank and tax information of the Affiliate being shown on the Interface;

7.8.3. the provision of any additional information reasonably requested by Naughty Ads in respect of the Affiliate's location or residence;

7.8.4. the payment not being subject to any internal audits or 'network quality' reviews from time to time.

7.9. All payments will be made to the bank account nominated by the Affiliate on the Affiliate Account on the Interface from time to time (subject to Clause 7.20 which overrides Clause 7.9). Naughty Ads is not obligated to take steps to verify the accuracy of the bank account information provided by the Affiliate.

7.10. All amounts payable at the time of withdrawal shall be converted to and paid in the currency in which the respective Affiliate is domiciled. As a result any costs of currency conversion or losses caused by exchange rate fluctuations shall be borne by the Affiliate.

7.11. The Affiliate will immediately repay any amounts paid to the Affiliate in error, or other than in accordance with the Affiliate's rights under this Agreement.

7.12. You will not receive any interest on commissions or bonuses held to your account.

7.13. Commissions and Bonuses to Affiliates are paid by Naughty Ads in its own right and not as agent for any other party.

7.14. In clauses 7.13 to 7.20, a word or expression defined in the GST Act which is not otherwise defined in this Agreement has the meaning given to it in that Act.

7.15. All fees, charges and other consideration provided by Naughty Ads to the Affiliate under this Agreement is exclusive of GST unless it is specifically expressed to be GST inclusive. If the Affiliate makes a taxable supply to Naughty Ads under or in connection with this Agreement, Naughty Ads must pay the Affiliate an additional amount (GST Amount) equal to the GST payable on the supply (unless the consideration for the taxable supply was specified to include GST).

7.16. The GST Amount must be paid by Naughty Ads at the same time as any consideration for the taxable supply is first paid or provided or later on demand if not paid at that time.

7.17. If an adjustment event varies the amount of GST payable in respect of a supply by the Affiliate under this Agreement, Naughty Ads must adjust the amount payable by Naughty Ads to take account of the adjustment event. Any payment under this clause is to be treated as an increase or decrease of the GST Amount.

7.18. Subject to an express provision in this Agreement to the contrary, any payment or amount required to be made under this agreement which is calculated by reference to sales, revenue, income or any amounts received or receivable from a third party (Revenue) will be calculated by reference to that Revenue exclusive of GST.

7.19. If part of a supply is a separate supply under GST Act (including for GST attribution purposes), that part is a separate supply for the purpose of this clause.

7.20. If the Affiliate is deemed to be (in Naughty Ads' sole opinion) Self-Refering accounts (i.e. The Affiliate markets accounts to Naughty Ads that are owned, either in any part or in whole, by the Affiliate, or are managed by the Affiliate) then Naughty Ads will pay the Commision due to the Affiliate as a refund of Approved Sales paid under any of the Affiliate's accounts that Naughty Ads (in its sole opinion) deems the Affilate to be in control of. This clause takes precendence over clause 7.9.

7.21. Clauses 7.13 to 7.21 will survive the termination of this Agreement by any party.

8. AFFILIATE'S RELATIONSHIP WITH NAUGHTY ADS AND ADVERTISERS

8.1. The Affiliate's participation in the Affiliate Program does not create any employee/emplyer relationship between the Affiliate and Naughty Ads, nor any Advertisers.

8.2. During the term of this agreement the Affiliate will not, directly or indirectly, enter or attempt to enter into any agreement, understanding or another form of arrangement (whether express or implied) with any Advertiser without Naughty Ads' prior written approval.

9 WARRANTIES AND INDEMNITY

9.1.Each party warrants and undertakes to the other for the Term that:

9.1.1. it has full power and authority to enter into this Agreement;

9.1.2. it holds all licenses and approvals necessary for the performance of its obligations under this Agreement;

9.1.3. it will perform its obligations under this Agreement in accordance with all applicable laws and using reasonable skill and care; and

9.1.4. it will not make any false, misleading or disparaging representations or statements regarding the other party.

9.1.5. The Affiliate warrants and undertakes to Naughty Ads for the Term that:

9.1.5.1. neither the Affiliate nor any of its officers or shareholders have previously been party to an agreement terminated by Naughty Ads for breach;

9.1.5.2. no officer or shareholder of the Affiliate has been an officer or shareholder of a company (or other entity) party to an agreement terminated by Naughty Ads for breach;

9.1.5.3. all information about the Affiliate set out in the Application Form or on the Interface is complete, true, accurate, not misleading and will be kept up to date;

9.1.5.4. it's marketing of any Advertiser or its Products will comply with all Advertising Standards and Data Regulation;

9.1.5.5. the Affiliate Service will be operated in accordance with all applicable laws (including Advertising Standards and Data Regulation);

9.1.5.6. it shall comply with the Code of Conduct at all times;

9.1.5.7. it shall comply with all relevant tax laws;

9.1.5.8. it shall retain ultimate control of the operation of the Affiliate Service;

9.1.5.9. it is the owner or valid licensee of any Intellectual Property Rights appearing on the Affiliate Service, and that no part of the Affiliate Service infringes the rights of any third party;

9.1.5.10. all Advertiser Materials will be accurately and faithfully reproduced; and

9.1.5.11. it will not attempt to earn a Commission from any User Account that the Affiliate owns, controls or has any financial interest in. 

9.1.6. The Affiliate will indemnify, defend and hold harmless Naughty Ads (including its directors, employees, agents or contractors), from and against any claims, costs, damages, losses, liabilities and expenses (including legal fees) relating to any claims, actions, suits or proceedings by third parties against Naughty Ads arising out of or related in any way to any breach by the Affiliate of any of the warranties at clauses 1, 9 and 12.4.

10 INTELLECTUAL PROPERTY

10.1. Naughty Ads hereby grants to the Affiliate, for the duration of its participation in the Advertiser Program, a revocable, non-exclusive, non-transferable, royalty-free, worldwide sublicense to publish Advertiser Materials, without modification, on the Affiliate Service or areas of the internet in which the Affiliate has the authority to disseminate advertising content, to the extent necessary to enable the Affiliate to market Naughty Ads and the respective Advertiser and its Products on the Network in compliance with the Agreement and the Program Terms.

10.2. A sublicense granted to a Sub-network under clause 10.1 shall be further sub-licensable by the Sub-network to Sub-affiliates on terms equivalent to clause 10.1, with Naughty Ads' prior written consent.

10.3. A sublicense granted by a Sub-network under clause 10.2 shall not be capable of further sublicense by the Sub-affiliate without Naughty Ads' prior written consent.

10.4. Naughty Ads hereby grants to the Affiliate a revocable, non-exclusive, non-sub-licensable, non-transferable, royalty-free worldwide license to use the Interface to the extent necessary for the Affiliate to participate in the Network and perform its obligations under this Agreement.

10.5. The Affiliate will not, and will not attempt to, change, reverse engineer or create derivative works of the Interface or the Tracking Code.

10.6. Each party reserves all of its right, title and interest to any of its Intellectual Property Rights licensed under this clause 10, or which it creates under this Agreement or which is created by operation of the Tracking Code.

10.7. The Affiliate shall use information and data obtained from and in connection with participating in the Network only for the purpose of this Agreement. Uses for any other purpose, or disclosure of such information and data are prohibited.

10.8. Either party may identify the other party in lists of clients or customers. Any other use shall require the prior written consent of the other party.

11 CONFIDENTIALITY

11.1. Each party will only use Confidential Information to enjoy its rights or comply with its obligations under this Agreement. Save as set out in this Agreement, neither party will disclose any Confidential Information. Confidential Information shall be kept confidential.

11.2. The obligations of confidentiality in this Agreement will not apply to Confidential Information to the extent it:

11.2.1. is in the public domain (other than as a result of a breach of this Agreement);

11.2.2. can be demonstrated as having been independently developed by the receiving party;

11.2.3. is published on the Interface in the receipt or provision of the Services in accordance with this Agreement;

11.2.4. is required to be disclosed by law or court order.

11.3. Naughty Ads may disclose Confidential Information to it related entities under the same ultimate ownership as Naughty Ads.

11.4. This clause will survive termination for five years.

12 DATA PROTECTION AND COOKIES

12.1. Naughty Ads and the Affiliate will comply with their respective obligations under Data Regulation. Each party will provide the other party any co-operation reasonably requested to enable the other party's compliance with this clause 12.

12.2. In accordance with Data Regulation, the Affiliate will obtain the prior, freely given, specific and informed consent of any Visitors to any cookies served by Naughty Ads on the Visitor as a result of a Click.

12.3. The Affiliate will not provide any Personal Data to Naughty Ads without Naughty Ads' prior written consent.

12.4. The Affiliate warrants and undertakes for the Term that it holds any rights or consents necessary for:

12.4.1. any Processing under this Agreement, undertaken by Naughty Ads or any Advertiser acting as a Data Processor on behalf of the Affiliate acting as a Data Controller, including any Processing of Personal Data relating to the Affiliate and any authorised Users;

12.4.2. the transfer outside of the EEA of Personal Data by Naughty Ads or any Advertiser.

12.5. Subject to clause 4, to the extent that a party is a Data Controller and the other party is a Data Processor, the party acting as a Data Processor will:

12.5.1. Process Personal Data only in accordance with the Data Controller's instructions from time to time;

12.5.2. as soon as practicable after becoming aware, notify the Data Controller of any communication it receives relating to the Processing of Personal Data;

12.5.3. as soon as practicable after becoming aware, inform the Data Controller if any Personal Data is lost, disclosed, damaged, destroyed or unlawfully Processed;

12.5.4. within three Business Days of receipt of a Data Subject access request, notify the Data Controller and, at the Data Controller's expense, assist the Data Controller's response; and

12.5.5. take appropriate technical and organisational measures against accidental loss and damage to, and the unlawful Processing of, Personal Data.

12.6. The Affiliate will not do or omit to do any act which may cause Naughty Ads to be in breach of any of its obligations under the Data Regulation.

13 LIMITATION OF LIABILITY

13.1. This clause 13 sets out the entire liability of Naughty Ads under or in connection with the Agreement.

13.2. Naughty Ads will not be liable for any losses of the Affiliate if Naughty Ads' compliance with the Agreement is prevented by the acts or omissions of the Affiliate.

13.3. Naughty Ads will not be liable to the Affiliate for: loss of profit, business, goodwill, anticipated savings, goods, contract, use or data; losses arising from the acts or omissions of an Advertiser; or for any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.

13.4. The total liability of Naughty Ads in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the Agreement will be limited to the amount of Commission paid out by Naughty Ads to the Affiliate in the 12 month period preceding the date on which the claim arose.

13.5. Except as expressly stated otherwise in this Agreement, all warranties, conditions and other terms implied by statute or common law are excluded to the fullest extent permitted by law.

13.6. The Network, the Interface, the Tracking Code, the Services, their use and the results of such use are provided "as is" to the fullest extent permitted by law. Naughty Ads disclaims all express or implied warranties, including warranties of satisfactory quality and fitness for a particular purpose, which may be implied in respect of the Network, the Interface, the Tracking Code, the Services, their use and the results of such use. The performance of the Network, the Tracking Code and the Interface may rely on third parties beyond Naughty Ads' control, and in particular, the maintenance by Affiliates of the proper integration of the Tracking Code into your URLs. Naughty Ads specifically disclaims any warranty:

13.6.1. that the use or operation of the Network, the Interface or the Tracking Code will be uninterrupted or error-free;

13.6.2. that the Tracking Code will be properly integrated into the Affiliate's URLs;

13.6.3. that the Tracking Code accurately records Actions at all times;

13.6.4. in respect of the Advertiser Materials, including any warranty that the Advertiser Materials comply with Advertising Standards;

13.6.5. that defects will be corrected;

13.6.6. that the Network, the Interface or the Tracking Code are free of viruses or malicious code;

13.6.7. that any security methods employed will be sufficient;

13.6.8. in respect of any Affiliate or its technology; and

13.6.9. regarding correctness, accuracy, or reliability.

13.7. Naughty Ads shall only be held liable in cases of intent or gross negligence of one of its legal representatives, executives or other vicarious agents, in the event of any culpable breach of a material contractual obligation and limited to the amount of the typically foreseeable loss.

13.8. Nothing in this Agreement limits or excludes the liability of Naughty Ads in the event of culpable injury to life, limb or health, fraud, fraudulent misrepresentation or fraudulent misstatement as well as in cases of mandatory statutory liability.

14 TERMINATION AND SUSPENSION

14.1. This Agreement will start on the Effective Date and continue until terminated in accordance with its terms.

14.2. Either party may terminate the Agreement on 14 days' written notice to the other party for any reason.

14.3. Without prejudice to its other rights or remedies, a party may terminate the Agreement immediately on written notice to the other party, if:

14.3.1. the other party materially breaches this Agreement;

14.3.2. the other party is deemed unable to pay its debts; steps are made to wind up, or appoint an administrator over, the other party; a third party becomes entitled to appoint a receiver over the assets of the other party; the other party negotiates with all or a class of its creditors, or proposes or enters a compromise with such creditors; or any similar or analogous event occurs.

14.4. Naughty Ads may terminate this Agreement or Suspend the Affiliate, immediately on written notice, if the Affiliate:

14.4.1. does not access the Affiliate Account for a period of six months or if no Commissions have been generated for a period of six months;

14.4.2. is reasonably suspected by Naughty Ads to have breached any:

14.4.2.1. of the warranties at clauses 1 and 9;

14.4.2.2. These Program Terms or any terms and conditions on or related to the Naughty Ads website;

14.4.2.3. part of the Code of Conduct.

14.5. Naughty Ads may terminate this Agreement, immediately on written notice, if the Affiliate undergoes a Change of Control.

15 CONSEQUENCES OF TERMINATION AND SUSPENSION

15.1. During any period of Suspension:

15.1.1. the Affiliate is not permitted to access the Interface;

15.1.2. all licenses will be Suspended, and the Affiliate shall immediately remove any Advertiser Materials from the Affiliate Service;

15.1.3. Naughty Ads may deactivate any Links and remove any Advertiser Materials from the Affiliate Service (to the extent it is able); and

15.1.4. no payments will be made to the Affiliate.

15.2. On termination of the Agreement:

15.2.1. all licenses will terminate, and the Affiliate shall immediately remove any Advertiser Materials from the Affiliate Service;

15.2.2. Naughty Ads may deactivate any Links and remove any Advertiser Materials from the Affiliate Service (to the extent it is able);

15.2.3. each party will return or at the other party's option destroy all confidential information in its possession within five Business Days; and

15.2.4. unless terminated by Naughty Ads under clauses 3 or 14.4, Naughty Ads will pay all outstanding Commissions and Bonuses due to the Affiliate;

15.2.5. by Naughty Ads under clauses 3 or 14.4 all unpaid Commissions as of the date of termination, or accruing after the date of termination, shall be forfeited to Naughty Ads irrevocably and the Affiliate hereby waives any right or entitlement to recover such Commissions and Bonuses from Naughty Ads.

15.2.6. Termination of this Agreement will not affect any existing rights or remedies.

15.2.7. Clauses 1, 2, 5, 6, 7, 8, 10.6, 11, 12, 13, 15, 16 and 17 will survive termination.

16 NOTICES

16.1. Notices given under this Agreement will be in writing and:

16.1.1. displayed by Naughty Ads on the Interface or with these terms as Naughty Ads so wishes;

16.1.2. delivered by the Affiliate via email to support@naughtyads.com.au;

16.1.3. delivered by Naughty Ads by by email and sent to the Affiliate to the Affiliate's notice email address set out in the Application Form (or such other notice email address as may be set out on the Affiliate Account);

16.2. A notice displayed by Naughty Ads on the Interface will be deemed to have been received at the time of its display (or if displayed outside business hours, at 9 am on the first Business Day following display).  A notice sent by email will be deemed to have been received at the time of transmission as shown by the sender's records (or if sent outside business hours, at 9 am on the first Business Day following despatch).

17 GENERAL

17.1. Naughty Ads may change the terms of this Agreement at anytime. The terms contained herin will always be the latest version of the terms.

17.2. Naughty Ads may set off any liability of the Affiliate against any liability of Naughty Ads.

17.3. Time for performance of clauses 10, 4.6, 7.4.3, 7.4.4, 7.9, 15.1.2 and 15.2.1 are of the essence of this Agreement.

17.4. No party will be liable for any breach of this Agreement arising from circumstances beyond its reasonable control (a "Force Majeure Event"). If a Force Majeure Event continues for six months, the unaffected party may terminate this Agreement by giving 30 days' written notice to the other party.

17.5. The Affiliate may not assign or subcontract its rights or obligations under this Agreement in whole or part without Naughty Ads' prior written consent. Naughty Ads may assign or subcontract its rights or obligations under this Agreement.

17.6. Nothing in the Agreement constitutes a partnership or joint venture between the parties, nor constitutes a party the agent of the other. No party has the authority to bind the other.

17.7. A Person who is not a party to this Agreement will not have any statutory rights under or in connection with it.

17.8. A counterpart of this Agreement executed and/or transmitted electronically shall be treated as fully binding and with full legal force and effect.

17.9. This Agreement constitutes the entire agreement between the parties relating to its subject matter, to the exclusion of the United Nations Convention on Contracts for International Sale of Goods.

17.10. This Agreement is governed by the law of Australia and the courts of Australia and Queensland have exclusive jurisdiction.

17.11. The Affiliate is aware that this Agreement is originally drawn up in English. The Affiliate is aware of and accepts that, in the event of any inconsistencies or differences of interpretation between the English version and a translated version, this English version shall always prevail.