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Sections

1. Background

A. Firmable has launched a new and highly scalable partner referral programme, operating through the First Promoter platform (Partner Platform).

B. Partners have the opportunity to earn referral commission via both their relationships and traditional referrals, as well as now through sharing of the Affiliate Link.

2. Acceptance

  • The Partner Referral and Affiliate programme is between the Partner and Firmable Pty Ltd, with its address at 601 / 6 Adolph St, Cremorne VIC 3121 (Firmable). The Partner is the person or entity who has accepted these Terms through the Firmable Partner Portal
  • Partner’s right to act as an Affiliate Partner is subject to these Terms. The Terms constitute a binding legal agreement between Partner and Firmable. Every time Partner accesses the Partner Portal or makes an introduction or referral of a Customer, Partner indicates that it has read, understood, and is taken to accept these Terms. If Partner does not agree to be bound by these Terms, Partner must not act as an Affiliate Partner of Firmable.
  • Firmable may initiate amendments or modifications to these Terms (other than amendments to Referral Fees for Customers already introduced) by providing Partner with 14 days’ notice. Partner will have an opportunity to agree or reject the amendments. If Partner does not agree to the amendments, then it must notify Firmable within that time frame, otherwise, it will be deemed to accept the amended version of the Terms. Partner’s continued participation as an Affiliate Partner indicates its continued acceptance of the amended Terms.
  • Partner is responsible for the compliance with these Terms by all its Authorised Representatives and Partner shall ensure all its Authorised Representatives are aware of these Terms.
  • These Terms will prevail over any other terms or agreement between the parties.

3. Preconditions to use

  1. To act as an Affiliate Partner:
    • Partner must be at least 18 years old (and have the legal capacity to enter into binding contracts); and
    • If the Partner is a corporate entity, the individual agreeing to the Terms must have the authority to bind the Partner.
  2. By agreeing to the Terms through the First Promoter site (Partner Portal), Partner warrants to Firmable that it meets the requirements above. If the above requirements are not met, please cease acting as an Affiliate Partner immediately.

4. Term

These Terms starts on the day set out above and continues until terminated by either party in accordance with clause 6. These Terms take precedence over any prior agreement for referrals or affiliates.

5. Referrals

  1. Partner is granted the right, subject to these Terms, to promote Firmable and include the Affiliate Link in its Affiliate Channels. In consideration for any Customer Contracts directly resulting from a referral by Partner or a click on a Partner’s Affiliate Link, Firmable will pay the Referral Fee in accordance with these Terms.

2. To constitute a Referred Contract, the following conditions must all be met:

  • Either, (i) Partner referred the Customer to partners@firmable.com (ii) Partner referred the Customer to a Firmable representative or (iii) Customer clicked on an Affiliate Link provided by Partner;
  • Firmable did not have any prior contact or business dealings with the Customer in the 12 months prior to the referral or introduction being made;
  • the Customer Contract was entered into within 90 days of the referral first being made (unless otherwise agreed in writing by Firmable); and
  • the Customer makes at least one successful payment.

3. If there are more than one Affiliate Partner with a valid claim to commission or a Referral Fee in respect of the same Customer, then First Referral or First Click Attribution applies. If there is a dispute then Firmable’s decision is final. If there are valid competing claims to a Referral Fee then Firmable may, in its sole discretion, determine how much of the Referral Fee should be paid to Partner on the principle that Firmable should not pay double commission.

4. Partner obligations

  • Partner must comply with the Online Referral Rules – see Schedule 2.
  • Partner must comply with all applicable laws when making seeking potential Customers, including in particular the Privacy Act 1988 (Cth) and the SPAM Act 2003 (Cth) when contacting potential Customers.
  • Partner must use the Partner Portal (which Firmable will provide access to) for the management of the Partner activities and for real time dashboard visibility.
  • Partner must not make any representations or warranties concerning the services of Firmable, beyond those provided by Firmable in its standard promotional materials or within the scope of express authorisations granted by Firmable in writing. Partner agrees to indemnify Firmable from any Claims or Loss arising out of such unauthorised representations or warranties.
  • Partner shall act in good faith towards Firmable at all times, and shall use its reasonable skill and care when acting as a referrer for Firmable.
  • In relation to its Partner activities, Partner shall carry out all reasonable directions made by Firmable, follow any brand guidelines issued by Firmable, allow Firmable to inspect all materials used to host any Affiliate Links or used in the promotion of Firmable (including the Affiliate Channels), and, when requested, consult with Firmable regarding its Partner activities.
  • Partner must not subcontract its rights under these Terms, or allow third parties to perform its Partner activities, without the prior written consent of Firmable.
  • Partner must not act fraudulently, engage in misleading or harmful activities or misrepresent Firmable.

5. Firmable is not obliged to enter into a Customer Contract with any entity referred by Partner, and as between Firmable and Partner, Firmable is not obliged to service a Customer Contract.

6. Subject to Partner referring 10 or more prospective Customers, and continuing to meet that target each month, Firmable will schedule monthly meetings to report on all referred Customers and discuss the referral programme with you.

6. Referral Fee

  1. Firmable must pay the Referral Fee to Partner for each Referred Contract for the duration of the Referral Period, in accordance with this clause 5.
  2. At the end of each month, Firmable will tally up all income received from all Referred Contracts during that month and show Referral Fees to be paid in the Partner Portal.
  3. Firmable must pay the total Referral Fees amount for the relevant month to Partner’s nominated bank account in cleared funds and without setoff or counterclaim account in accordance with the Payment Terms in Schedule 1. It is Partner’s responsibility to ensure its bank account details on the Partner Portal are current.
  4. Firmable may set off against the Referral Fee any monies owed by Partner to Firmable and also any previously paid Referral Fee in respect of revenue from the Customer Contract that Firmable has rebated, refunded or credited back to Customer.
  5. We reserve the right to withhold payment of Referral Fee where we have reason to believe:
    • Partner received commission from the Customer;
    • Partner has broken an obligation or restriction in these Terms in respect of that Customer; or
    • Payment of the Referral Fee is not permitted under an applicable law or regulation.

7. Termination

  1. Either party may terminate these Terms immediately by providing written notice to the other party.
  2. In addition, Firmable may terminate these Terms immediately by providing written notice to Partner where Partner has breached these Terms.
  3. The termination of this agreement for any reason does not release the parties from any of the obligations and liabilities that may have arisen or been incurred prior to the date of such termination.
  4. Where either party has terminated under clause 1.1 then Partner is still entitled to Referral Fees for introductions made prior to the date of termination (which, in accordance with Schedule 1 is for the first 12 months of the Referred Contract).
  5. Where Firmable has terminated these Terms for breach of these Terms by Partner under clause 1.2, then Partner is not entitled to payment of any Referral Fees for Referred Contracts introduced prior to the date of termination.
  6. Clause 8 (Confidentiality), 9 (Intellectual Property) and 10 (Limitation of Liability) survive the termination of this agreement. Clauses 5 survives the termination of this agreement to the extent that a referral was made prior to the termination of this agreement.

8. Relationship

  1. The relationship of the parties is solely one of independent contractors. Nothing in this agreement will or is intended to establish a relationship of partnership, agency or employment between the parties, or Firmable and any of the personnel of Partner. It is the intention of the parties that any such relationship is expressly denied.
  2. Partner acknowledges and agrees that during the Term of this agreement, it must avoid any conflict of interests that may arise between their obligations to Firmable and any other business or entity that Partner is associated with. Partner must notify Firmable immediately in writing if any such conflict of interests arises, and must take all reasonable steps necessary to ensure that their obligations to Firmable are not compromised by any such conflict of interests.
  3. Nothing in these Terms create any form of exclusive relationship. Partner is entitled to take on other work so long as it does not result in a conflict of interests or breach any other clause of this agreement.

9. Confidentiality

  1. Each party acknowledges that in the course of this agreement, it may receive Confidential Information from the other party.
  2. Any party receiving Confidential Information shall use the Confidential Information only for the purposes of this agreement and shall not disclose it to any third party without the prior written consent of the disclosing party, or as required by law.

10. Intellectual Property

  1. All rights and interests in the Firmable platform, the Firmable branding and the Partner Portal (Firmable IP) belong to Firmable. If Partner makes or suggests any alterations, modifications or improvements to the Firmable IP then Firmable will own that. If Firmable requests, Partner shall sign an agreement confirming the assignment to Firmable.
  2. Except as needed to perform the referral services, or with the prior consent of Firmable, Partner may not copy, modify, distribute, sell, or create derivative works based on the Firmable IP. All trademarks, logos, and Firmable marks displayed on our website or in the Firmable Product are the property of their respective owners.
  3. Partner acknowledges that this clause 9 will remain in full force and effect notwithstanding termination of this agreement for any reason.

11. Limitation of Liability

  1. Notwithstanding any other provision in this agreement:
    1. Firmable is not liable to Partner for, and Partner releases Firmable from, any Loss or Claim arising in connection with a Customer, Customer Contract or Referred Contract (except for the obligation to pay Referral Fees) including without limitation any performance or non-performance of Firmable;
    2. Firmable shall not be liable to Partner for any indirect, incidental, special, consequential or exemplary Loss; and
    3. Firmable’s total liability to Partner, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall not exceed the total Referral Fees paid or payable by Firmable to Partner under this agreement during the 12 months immediately preceding the date on which the claim arose.

12. General

  1. (Notices) all notices must be in writing. The parties agree to accept notices by email. Email Notices are taken to be read on the day they are received, unless they are received after 5 PM or not on a Business day, in which case they are deemed to be received on the next Business day.
  2. (Further assurance) Each party must promptly at its own cost do all things (including executing all documents) necessary or desirable to give full effect to this agreement.
  3. (Entire understanding)
    • This agreement is the entire agreement and understanding between the parties on everything connected with the subject matter of this agreement, and supersedes any prior agreement or understanding on anything connected with that subject matter.
    • Each party has entered into this agreement without relying on any representation by any other party or any person purporting to represent that party.
  4. (Relationship) Nothing in this agreement will or is intended to establish a relationship of partnership, agency or employment between Partner and Firmable, or Partner and a Customer, and it is the intention of the parties that any such relationship is expressly denied.
  5. (Assignment) The rights and obligations of each party under this agreement are personal. No party may assign, encumber or otherwise deal with such rights and obligations without the prior written consent of all other parties.
  6. (Waiver):
    • A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right.
    • The exercise of a power or right does not preclude its exercise in the future or the exercise of any other power or right.
    • A waiver is not effective unless it is in writing.
    • Waiver of a power or right is effective only in respect of the specific instance to which it relates and for the specific purpose for which it is given.
  7. (Governing law and jurisdiction) The law of the State governs this agreement and the parties submit to the exclusive jurisdiction of the courts of the State and the Commonwealth of Australia and agree that any lawsuit must be heard in those courts.
  8. (Legal advice) The parties warrant that they have had a reasonable opportunity to obtain legal advice regarding the terms contained in this agreement.
  9. (Severability):
    • If anything in this agreement is unenforceable, illegal or void then it is severed and the rest of this agreement remains in force.
    • If anything in this agreement is unenforceable, illegal or void in one jurisdiction but not in another jurisdiction, it is severed only in respect of the operation of this agreement in the jurisdiction where it is unenforceable, illegal or void.

13. Definitions and interpretation

  1. In this agreement, unless the context indicates a contrary intention:
    • Affiliate Channel means websites, social media accounts, content platforms or other digital surfaces owned or controlled by Partner.
    • Affiliate Link means a unique URL issued to Partner for link-based promotion and attribution of Firmable’s products.
    • Affiliate Partner means a person who promotes and introduces (manually or by way of an Affiliate Link) Firmable to potential Customers, and includes the Partner.
    • Authorised Representative means, in relation to a either party, its directors, officers, agents, employees, advisers, and financiers.
    • Business Day means a day on which banks are open for general banking business in the State, excluding Saturdays and Sundays.
    • Claim means a claim, action, proceeding or demand made against the person concerned, however it arises and whether it is present or future, fixed or unascertained, actual or contingent.
    • Confidential Information means any data or information, oral or written, treated as confidential that relates to either party’s (or, if either party is bound to protect the confidentiality of any other party, then such other party’s) business activities, technology, developments, technical processes, financial affairs, list of customers, suppliers, employees, and any knowledge gained through examination or observation of or access to the premises, samples, products, equipment, documents, data, or services, and is not generally known to the public at the time of disclosure or becomes generally known through no wrongful act of the receiving party, breach of this agreement, or breach of confidentiality by third parties.
    • Control means the possession, direct or indirect, of the power to direct, influence or cause the direction of the decisions, management and policies of a person or entity, whether through the ownership of voting securities, by contract or otherwise, and the terms Controls, Controlled by, and under common Control with will be construed accordingly.
    • Customer Contract means any agreement, contract or other similar commercial arrangement where Firmable provides goods or services to a Customer, including under an online subscription contract.
    • Customer orCustomers means any person or entity that Partner introduces to Firmable for the purposes of a Customer Contract.
    • First Referral or First Click Attribution means a Customer referral is attributed to the first Affiliate Link clicked or first engagement with Firmable, even if Affiliate Links are clicked later or the Customer is referred later.
    • Loss means a damage, loss, cost, expense or liability incurred by the person concerned however arising, including penalties, fines, and interest and including those which are prospective or contingent and those the amount of which for the time being is not ascertained or ascertainable but does not include special, indirect or consequential loss.
    • Partner Portal means the online portal at https://firmable.firstpromoter.com/
    • Payment Terms aredefined in Schedule 1.
    • Referral Fee is defined in Schedule 1.
    • Referral Period is defined in Schedule 1.
    • Referred Contract means a Customer Contract that meets the conditions of clause 4.2
    • State is defined in Schedule 1.
  2. In this agreement, unless the context indicates a contrary intention:

Schedule 1 – Commercial Terms

  1. Referral Fee

20% of the total fees received by Firmable from the Referred Contract in the Referral Period, excluding GST, any fees for third party services, and any refunds, rebates or credit applied to the Customer

2. Payment Terms

30 days from the end of each month

3. Referral Period

12 months from the signature or entry into of the Customer Contract by the Customer

4. State

Victoria, Australia

Schedule 2 – Online Referral Rules

  • Partner must comply with the following:
  • Partner website and Affiliate Channel may not contain any content, images, or advertisements for products or services that are not suitable for being viewed by persons 18 years of age or younger if Partner includes any reference whatsoever to Firmable or your Affiliate Link. 
  • Partner may not, on any website or Affiliate Channel on which it includes any reference whatsoever to Firmable, its products, and services, include any reference whatsoever to content that is (as determined by Firmable): (a) “Adult” in nature, (b) unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (c) facilitates illegal activity; (d) otherwise illegal or causes damage or injury to any person or property, or (e) liable to bring Firmable into disrepute.
  • Partner shall not send unsolicited bulk emails which promote, or make reference to Firmable, or any of their associated companies or websites, partners, or employees, or Firmable’s products.
  • Partner shall not try to cheat or defraud the Affiliate Partner programme in an effort to increase any Referral Fees.
  • Partner shall refrain from any type of predatory marketing and/or advertising practices, the definition of which shall be at the sole discretion of Firmable.
  • Partner shall not manipulate or modify the Affiliate Link in any way including, but limited to, dynamically replacing the affiliate ID of one Affiliate Partner with that of another with the effect of “stealing” the Referral Fee away from an Affiliate Partner.
  • Partner may not adjust any of the supplied Affiliate Links to reset cookies or bypass other safeguards in the system.
  • Partner shall not use an Affiliate Link to purchase a subscription (A) for its entity or its parent, subsidiary, or affiliate entities, or (B) for itself, its employer, or any other organisation to which it provides services.
  • Partner shall not offer any discount, coupon, free trial, promo code, or other promotional offer that is not expressly authorised by Firmable in writing in advance.
  • Partner shall not use redirects to bounce a click off of a domain from which the click did not originate in order to give the appearance that it came from that domain (also known as cloaking);
  • Partner shall not utilise an Affiliate Channel that contains any viruses, Trojan horses, worms, time bombs, cancelbots, or other computer programming routines that are intended to, or are likely to, damage, interfere with, surreptitiously intercept, or expropriate any system, data, or Personal Information (as defined below). 
  • Pay-Per-Click (PPC) Advertising Restrictions
    • Partner is strictly prohibited from bidding on Firmable’s brand name, trademarks, or any variations, misspellings, or derivatives in Pay-Per-Click (PPC) advertising campaigns. This includes any use of Firmable, in ad titles, ad copy, display URLs, or as keywords in search engines. Additionally, these terms cannot be used in combination with promotional words such as “promo,” “discount,” “coupon,” “code,” “promo code,” “sale(s),” “deal(s),” or any similar variation with an equivalent meaning (Prohibited Keywords). Affiliate Partner must adhere to the following PPC guidelines:
    • The use of Prohibited Keywords in combination with any other terms in paid search advertising is not permitted
    • Partner may not include Prohibited Keywords in ad titles, ad copy, display names, or as part of the display URL in any promotional content.
    • Affiliate Partner is not allowed to bid on Prohibited Keywords – including any variations or alternative spellings – across search engines and advertising platforms such as Google, Bing, MSN, Yahoo, Facebook, or any other network.
    • The use of Firmable’s trademarked terms in domain names or subdomains associated with any affiliate promotional platform is strictly prohibited.