Membership Agreement

Effective as of June, 2005

EvolutionCode Affiliate Agreement.

 

To participate in the EvolutionCode Affiliate Program, you must first agree to the terms and conditions of this Agreement (henceforth known as the “Agreement”).  By accepting an AffiliateID, a ReferralID and Password from EvolutionCode Pty Ltd, you accept the terms of this Agreement, are bound by them and subject to them.  Your continued participation in this Affiliate Program constitutes your ongoing acceptance of this Agreement.  Therefore, please read this Agreement carefully.

 

Statement of Purpose of EvolutionCode Affiliate Program

This Agreement covers the Affiliate Program set up by EvolutionCode in which Affiliates promote EvolutionCode’s product(s) to potential users of EvolutionCode product(s) through ReferralIDs provided to the Affiliate by EvolutionCode.  In the event that the Affiliate generates sales of EvolutionCode product(s) through this promotion and use of the ReferralID, using acceptable methods (see below), EvolutionCode will pay a commission to the Affiliate, which constitutes a percentage of the sale price.

 

EvolutionCode agrees to pay the Affiliate who generates sales through the use of their ReferralID, and whose sales may be identified through the purchaser’s reporting of the same ReferralID, a commission agreed upon at the time of issuing the ReferralID.

 

Terms

Affiliate refers to the individual who agrees to these terms and conditions and accepts a ReferralID from EvolutionCode for the purpose of promoting EvolutionCode products, generating sales of EvolutionCode products, and accepting a commission for these activities.

Commission refers to the amount paid to the Affiliate by EvolutionCode in return for the Affiliate referring a User to EvolutionCode product(s) and generating a sale of that product(s).

EvolutionCode refers to EvolutionCode Pty Ltd.

ReferralID refers to an alphanumeric identification code issued to the Affiliate for the purposes of identifying the sales generated by the Affiliate and the commission payable to them.

Referrer refers to the Affiliate identified as the person who has successfully promoted the EvolutionCode product(s) to a user.

Reseller refers to an official reseller of EvolutionCode product(s) (such as a download website which is not party to this Affiliate Program or Agreement, and does not have a ReferralID).

User refers to potential or actual purchasers of EvolutionCode product(s).

Valid ReferalID refers to a ReferralID which is both known to EvolutionCode and not expired.

 

From the time of entering into this Agreement:

 

  • The Affiliate may describe themselves as having received approval to act as a non-exclusive participant in the EvolutionCode Affiliate Program for the purpose of promoting EvolutionCode product(s).
  • The Affiliate may make their Valid ReferralID known to Users of EvolutionCode product(s), along with details of how the product(s) may be accessed online.

 

By Accepting this Agreement:

 

  • The Affiliate agrees that they have the right to do so.

 

Information the Affiliate Must Provide:

 

  • The Affiliate’s contact details, as provided to EvolutionCode at the beginning of the Affiliate relationship, must remain valid for the term of the ReferralID’s validity.
  • The Affiliate must also advise EvolutionCode of any information of which they are aware, relevant specifically to this agreement, which may result in significant negative financial impact on EvolutionCode.  For the duration of the Affiliate’s association with EvolutionCode, this information must be provided as soon as the Affiliate becomes aware of it.

 

Methods of Promoting EvolutionCode product(s)

 

  • The Affiliate must place a link to the RecallPlus website with any ReferralID.
  • The Affiliate may post their ReferralID at their website, along with links to the EvolutionCode product(s) in question.
  • The Affiliate may orally provide their ReferralID to User(s), along with instructions to the EvolutionCode website and the EvolutionCode product(s) in question.
  • The Affiliate may email a ReferralID to potential users who have either specifically requested that ReferralID for the RecallPlus product, or who they know from face to face encounter.
  • The Affiliate may not engage in promotion activities involving emailing or otherwise contacting or harassing Users in any way which may be construed as “Spam” or “Spamming”. 
  • The Affiliate may not place referral links anywhere where a reasonable User would consider it to be “Spam”.
  • The Affiliate may not cause any use of a ReferralID or derived sales to be made in bad faith or through fraudulent means.
  • The Affiliate may not pose as EvolutionCode or lead other to believe that the Affiliate is EvolutionCode.
  • Any such activity will result in the reporting of the Affiliate to appropriate bodies (such as the Police if fraud has occurred) and immediate termination of the Agreement with that Affiliate and the cancellation of the Affiliate’s ReferralID.

 

Identification of the Affiliate as the Source of Referral to a User, and therefore the determination of Commission due.

 

  • If, at the time of a sale of an EvolutionCode product(s), the User provides to EvolutionCode a Valid ReferralID, the Affiliate identified through the Valid ReferralID is considered to have been the Referrer for this sale.
  • Only one ReferralID may be identified per purchase.
  • ReferralIDs may not be used to promote upgrades from one edition of an EvolutionCode product(s) to the next, and therefore a Commission is not payable on that type of transaction.

 

Payment

 

  • The payment of Commission will not fall due until the Affiliate has made more that five (5) sales.
  • Commission will not be paid to the Affiliate for sales to the Affiliate themselves.
  • EvolutionCode offers Users a one month guarantee of refund (please see the RecallPlus Guarantee).  Therefore, unless otherwise specifically agreed, payments of commission to the Affiliate will not be provided until one month after the User’s purchase in order to allow the User to seek that refund if they so wish.
  • By default, unless expressly discussed and agreed to by EvolutionCode, commissions will be paid not more frequently than once per month thereafter.
  • The preferred account type to credit is a PayPal account, rather than a bank account.  However, exceptions may be made in special circumstances.
  • The calculation of Commission is:  Commission = (Standard Price – Discount Amount) x Commission percentage ÷ 100 
  • Costs involved in making the transfer of Commission to the Affiliate, and any costs involved in making an exchange of currency for the purposes of the payment of Commission to the Affiliate, will be borne by the Affiliate.
  • The Affiliate acknowledges that in the event of a refund being provided to a User, the Affiliate’s subsequent balance will be adjusted (please see the paragraph referring to the provision of refunds) and the commission for that sale will therefore be forfeit.
  • The Affiliate will remain responsible to EveolutionCode in any event relating to outstanding negative balances which arise out of Chargebacks and/or Refunds related to the Affiliate’s sales.

 

Taxation Issues

 

  • The Affiliate understands that EvolutionCode does not take any responsibility for the deduction or management of the Affiliate’s tax affairs.
  • Any taxes payable on the Affiliate’s income from their activities in promoting EvolutionCode product(s) are the responsibility of the Affiliate.
  • This applies to all Affiliate irrespective of the country in which the Affiliate operates unless that Affiliate is Australian
  • In the event that an Affiliate is Australian, an ABN is required such that PAYG is not payable.

 

Pricing

 

  • The product will be sold at the recommended price irrespective of the Affiliate or Reseller concerned. 
  • The recommended price is the price listed at the EvolutionCode purchase pages.
  • If the Affiliate wishes, after the sale, to offer part of his/her commission as a refund to the User, then that is an agreement which is wholly the responsibility of the Affiliate concerned.

 

Warranties

 

As per our license, to which the User agrees at the time of installing the EvolutionCode product(s), EveolutionCode makes no promise or guarantee that the product will operate as expected.  Software in particular is inherently of variable stability and therefore requires Users to take responsibility for backing up their data frequently.

 

TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, EVOLUTIONCODE DISLAIMS ANY AND ALL IMPLIED WARRANTIES WHICH MAY ARISE UNDER LAW OR EQUITY, INCLUDING, BUT NOT LIMITED TO, IMPLLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ACCURACY OF INFORMATION.

 

EVOLUTIONCODE SHALL NOT BE LIABLE TO YOU OR TO ANY THIRD PARTY CLAIMING TROUGH YOU FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES OF ANY DESCRIPTION (INCLUDING WITHOUT LIMITATION LOST PROFITS OR LOSS OR INTERRUPTION OF BUSINESS), WHETHER BASED ON CONTRACT, NEGLIGENCE, TORT, OR ANY OTHER LEGAL THEORY, REGARDLESS OF WHETHER ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND IRRESPECTIVE OF THE NUMBER OR NATURE OF CLAIMS.  THE LIMITATIONS UPON DAMAGES AND CLAIMS SET FORTH IN THIS AGREEMENT IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE BEEN HELD TO BE INVALID OR INEFFECTIVE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.

 

THE TERMS OF THIS AGREEMENT REFLECT AN AGREED-UPON ALLOCATION OF RISK BETWEEN THE PARTIES SUPPORTED BY (AMONG OTHER THINGS) THE PRICING AGREED TO BETWEEN THE PARTIES, AND THIS ALLOCATION IS A FUNDAMENTAL PART OF THE BASIS OF THE BARGAIN BETWEEN THEM.

 

Termination of this Agreement

 

  • The Affiliate understands that each ReferralID is initially valid for a specific period of time only – default is 1 month.
  • The Affiliate understands that this Agreement may be terminated without warning at any time and by either party. 
  • If the Agreement is terminated, the Affiliate’s ReferralID will be terminated also, rendering it invalid.
  • In the event of this Agreement being terminated, any outstanding commissions due the Affiliate will be forfeit to EvolutionCode Pty Ltd.
  • The Affiliate will remain responsible to EvolutionCode in the event of outstanding negative balances which arise out of Chargebacks and/or Refunds related to the Affiliate’s sales.

 

Event: The User Requests a Refund

 

  • EvolutionCode offers Users a Guarantee of Refund due to lack of benefit from the product(s) for one month after purchase (please see the RecallPlus Guarantee).
  • Therefore, unless otherwise specifically agreed, payments of commission to the Affiliate are not be provided until one month after the User’s purchase in order to allow the User to seek that refund if they so wish.
  • In the event that a User requests a refund after the one month guarantee has expired, EvolutionCode will consider the User’s request and make the decision whether or not to grant the late refund.
  • If a late refund is granted, the Affiliate will also be required to return the commission from that sale to EvolutionCode.
  • If the refund is sought by the User because of the User’s unhappiness with the conduct of the Affiliate, or with the promotional methods used by the Affiliate, EvolutionCode may terminate the Affiliate’s Agreement with forfeit of any positive balance felt to be owed to the Affiliate at that time.

 

NB: It should be noted that requests for refunds are rare.  The situation in which refunds are most likely to be requested in one in which the Affiliate or Reseller misrepresents EvolutionCode’s product(s), or the User purchases the product(s) prior to trialling it.

 

Event: A Disagreement Between the Affiliate and EvolutionCode.

 

  • In the event of a disagreement between the Affiliate and EvolutionCode, the parties will firstly try to resolve the dispute in a spirit of co-operation and without any formal proceedings.
  • Any dispute which cannot be resolved without formal proceedings will be subject to arbitration upon written demand of either party.
  • Arbitration shall take place in one of three settings:
    • 1. online
    • 2. Sydney, New SouthWales, Australia
    • 3. another location as agreed by both parties.
  • Arbitration shall follow the guidelines set out by the American Arbitration Association.