Affiliate Agreement

Agreement Parties and Consent

All references to “Optiphone Innovations” or "Optiphone" herein means and refers to Optiphone Innovations Pty ltd, 16 Toorak Park avenue, Mermaid Waters, doing business as Optiphone. All references to “You” and “Your” mean and refer to the person or entity who has executed this Affiliate Agreement. Optiphone and You are each referred to herein as a “Party,” and collectively as the “Parties.” You agree to notify us in writing if the legal name of your business or account ownership changes within twenty-four (24) hours of such change and You certify that all such information is truthful and accurate. Notice of such changes should be sent to [email protected].

This Affiliate Agreement (“Agreement”) governs your application for, and any subsequent participation in, Optiphone’s Affiliate program. By signing up for Optiphone’s Affiliate program and submitting your application, You thereby accept the terms of this Agreement, You indicate that You have read and understood this Agreement, and agree that You are bound by its terms. Further, you are certifying that you are at least 18 years old.

You agree to provide all information requested by Optiphone in connection with Your Affiliate application, and You affirm that all information that You provide is truthful and accurate. You understand and agree that Optiphone retains sole and exclusive discretion to determine whether You qualify for participation in Optiphone’s Affiliate program. Not everyone who applies for Optiphone’s Affiliate program will qualify to participate and not everyone who initially qualifies will continue to qualify for the duration of Optiphone’s Affiliate program.

You expressly consent to be contacted at the email address and the phone number You provide in Your application, including through automated dialling systems, texts and artificial or pre-recorded messages. This consent is a material condition of this Agreement and may not be revoked except in writing by both Parties.

This Agreement, Appendix A below, along with Optiphone’s standard Terms of Service, represents the entire agreement between the Parties and supersedes any other written or oral agreement between the Parties as pertaining to Your Affiliate application and, if approved, Your rights and responsibilities as an Affiliate.

Compensation

If Your application to become an Affiliate is approved by Optiphone, You will receive a unique Affiliate ID. The Affiliate ID will be incorporated within each URL which You will use to advertise Optiphone. You will have the opportunity to receive a commission for each sale (“Sale”) that is registered using Your Affiliate ID.

In the event that a prospect (“Prospect”) has multiple Affiliate cookies (“Cookies”), the first touch Cookie will determine which Affiliate is credited with a Sale. Provided that the Sold Account (as defined below) remains in good status within thirty (30) days from the Sale, You will be paid a commission for each Sold Account that generates a payment to Optiphone in the respective month’s open period (“Commission”). Except as otherwise provided herein, Commission payments will be paid on 15th of each month following Optiphone’s receipt of payment for a Sold Account, subject to the other terms of this Agreement. In the event the 15th of each month falls on a holiday or weekend, Commission payments will be paid on the business day preceding the holiday. All Commission payments are based on the amount of fees received by Optiphone, less applicable sales/GST taxes.

The amount of Commissions are as follows:

1. First Tier Affiliate: 35% Recurring Commission on front-end offer, upsell and order bumps may vary

2. Second Tier Affiliate: 5% Recurring Commission on any customers referred by affiliates coded to you

All Commissions and Optiphone Affiliate Bonuses are paid in Australian Dollars (AUD) or otherwise in currencies offered by the payment provider. Some payment methods may incur processing fees that may be deducted from Your Commissions or Optiphone Affiliate Bonus payment. Your combined Commission and Optiphone Affiliate Bonuses must equal or exceed One Hundred ($100.00) (AUD) before You receive a payment from Optiphone Affiliate program. If Your combined Commissions and Bonuses in a 120- day period do not exceed $100.00 (USD) Your Commissions may not be paid and will be forfeited.

Once a Commission of $100 (AUD) or more is earned, You will need to register with our third party payment provider to receive payment of Commissions. This means You are authorizing third party companies to contact You. Before You can be paid any Commission or Optiphone Affiliate Bonus, You must provide Optiphone a completed TFN declaration form, as instructed by Optiphone, as well as any supporting documentation requested by Optiphone or its third-party payment provider. You will be deemed to have permanently waived all rights to Commissions or Bonuses that were earned more than 120 days before submitting a completed TFN declaration or any ancillary supporting documentation that is requested to confirm the information on your tax form. If You are not a resident of Australia, Optiphone may withhold tax (including without limitation GST) where required by applicable law. You are solely responsible for complying with all tax laws in Your respective jurisdiction(s) including, but not limited to, the payment of all required taxes, and filing of all returns and other required documents with, the applicable governing body(ies).

Affiliates will not be paid any Commissions or Optiphone Affiliate Bonuses for payments made on Affiliate’s own user account(s). Affiliates are not permitted to open a Optiphone account under the name of another person or entity, under a fictitious name, or under any name merely for the purpose of obtaining Commissions, Optiphone Affiliate Bonuses or any other compensation. Affiliates may not pay for another person’s or entity’s account. Affiliates are not permitted to offer cash rebates or other monetary incentives to obtain Sales.

Commissions and Optiphone Affiliate Bonuses are paid only for transactions that actually occur between Optiphone and a Sale and in which payment is received by Optiphone. If payment for a Sold Account later results in a refund or chargeback, and if a Commission or Optiphone Affiliate Bonus was paid to You for that Sold Account, then the Commission or Optiphone Affiliate Bonus will be deducted from Your future Commissions and/or Optiphone Affiliate Bonuses.

If Optiphone determines, in its sole and exclusive discretion, that any Sale was procured fraudulently or as a result of any violation of this Agreement or applicable law, no Commission or Optiphone Affiliate Bonus will be paid for such Sale and, for past sales, such payment amounts shall be deducted from Your future Commissions and Optiphone Affiliate Bonuses, and Optiphone may terminate this Agreement immediately without Optiphone having any liability to You.

Term and Termination:

The term of this Agreement will begin the earlier of (i) when submit your participation application; or (ii) Your participation in the Affiliate program is approved. Your participation in the Optiphone Affiliate program will continue month-to-month until terminated. Either Party may terminate this Agreement at any time, with or without cause, by giving the other Party thirty (30) days’ written notice of termination. If, in our sole discretion, You fail, or we suspect that You have failed, to comply with any term or provision of the Agreement or the Terms of Service, or violated any law, whether in connection with Your use of Optiphone or otherwise, we may terminate the Agreement or suspend Your access to the Affiliate website (“Website”) at any time without notice to You. In addition, if, based on our data, you have a dispute rate greater than 10%, we may terminate this Agreement or suspend your access to the Website at any time without notice to You. In such instances, and in our sole discretion, we may also for the aforementioned reasons, terminate our relationship and suspend any accounts owned/controlled by You. For the avoidance of doubt, and without limitation for purposes of the foregoing, any violation of the required disclosure will be deemed a material breach of this Agreement. See Appendix A, Section 2, Disclosure. In the event this Agreement is cancelled due to Your breach, You immediately forfeit all Commissions, Optiphone Affiliate Bonuses, and any other payments owed to You or that may in the future be owed to You without any further liability by Optiphone to You.

We reserve the right to terminate this Agreement if You earn no (zero) Commissions over a 90 day period and/or refer no new customers in a 9 month period.

If this Agreement is terminated or cancelled, then all provisions that, by their nature, should survive, will survive, including, but not necessarily limited to, all limitations of liability, disclaimers of warranties, indemnity obligations, mandatory arbitration and class action waiver provisions, and exceptions to arbitration. All representations and warranties undertaken by You shall also survive termination or cancellation of this Agreement and/or Your Optiphone account.

Additional Representation and Warranties:

In addition to Your other representations and warranties herein, You further represent and warrant that there are no prior or pending government investigations or inquiries of, or prosecutions against You by the Australian Taxation Office (“ATO”), any other federal or state governmental agency, or any industry regulatory authority, anywhere in the world, nor any prior or pending private lawsuits against You which relate to alleged intentional torts or alleged violation of any consumer protection or advertising laws. If You become the subject of such an investigation, inquiry, prosecution, or lawsuit any time after this Agreement is executed, You are required to notify Optiphone of the same within 24 hours. Optiphone, in its sole and exclusive discretion, may immediately terminate Your participation in Optiphone’s Affiliate program, as well as immediately terminate this Agreement, based on any investigation, proceeding, or lawsuit identified pursuant to this paragraph.

Appendix A:

Additional Terms of the Affiliate Agreement and Advertising Rules These Advertising Rules apply to all activities of Affiliate:

1. General Compliance:

Affiliates shall publish or otherwise distribute advertisements in strict compliance with all applicable Australian laws and regulations, including but not limited to The Australian Consumer Law (ACL) under the Competition and Consumer Act 2010 (Cth), which prohibits misleading or deceptive advertising and marketing practices. The Spam Act 2003 (Cth)and related regulations, which govern email marketing and prohibit unsolicited commercial electronic messages. The Privacy Act 1988 (Cth)and the Australian Privacy Principles (APPs), which regulate the handling of personal information. Laws governing testimonials, including compliance with the Australian Competition and Consumer Commission (ACCC)guidelines on advertising and testimonials. Affiliates are strictly prohibited from making claims concerning the products and services offered by Optiphone that are inconsistent with, or beyond the scope of, marketing materials produced and made available by Optiphone on its website at www.optiphone.com.au. Affiliates are prohibited from publishing or otherwise distributing advertisements through telemarketing, fax, or unsolicited text messaging in any form to any device, in accordance with the Do Not Call Register Act 2006 (Cth) and the Telecommunications Act 1997 (Cth). Affiliates shall not offer monetary incentives, such as rewards points, cash, or prizes, to Prospects in return for their response to an advertisement. Affiliates may, however, offer Prospects information and materials of tangible value, including but not limited to information about e-commerce, website design, and online marketing, for reduced or no charge, provided that Affiliates accurately describe and deliver such information and materials to the Prospect. Optiphone retains the sole and exclusive discretion to determine whether Affiliate advertising and conduct complies with all applicable laws and this Agreement. Affiliates are solely responsible for ensuring compliance with all applicable laws and regulations.

2. Disclosure:

On any website that Affiliate advertises any Optiphone service or product, Affiliate must plainly display (i.e., not in a link, or in small font) disclaimer language, such as: "Disclosure: I am an independent Optiphone Affiliate, not an employee. I receive referral payments from Optiphone. The opinions expressed here are my own and are not official statements of Optiphone or its parent company, Digital Marketing Misfits, LLC."

3. Non-Disparagement:

Affiliate is not permitted to comment negatively about or disparage the products or services of Optiphone or any other person or entity, including without limitation the products or services of a Optiphone competitor. Affiliate is not permitted to engage in any unlawful or deceptive actions with respect to search engine optimization, including, but not limited to, using any technique that generates paid search results based on any trademarks of Optiphone, any brand name of Optiphone, or based on the trademarks or brand name of any competitor of Optiphone, or any other third party.

4. Social Media:

If Affiliate advertises on TikTok, Instagram or YouTube, then each post must comply with all of the following:

● Each post must contain #optiphone

● Each post must contain #ad in a clear and conspicuous location before the text of the description and in all events before the “More” button.

● Each Instagram post must use Instagram’s “Paid Partnership” tool.

● Each YouTube post must contain the word “Ad,” “Advertisement,” “Promotion,” or “Paid Partnership” within the video itself in a font size that is clearly recognizable to the viewer and which appears persistently throughout the length of the video in the top right hand portion of the video.

If Affiliate is advertising on other forms of written social media (e.g., Facebook, Twitter), Affiliate must comply with the above disclosure restrictions as applicable to each form of social media. Affiliate must also comply with all rules of each social media platform that Affiliate uses.

Affiliate must have rights to media used in advertising forms. This includes, but not limited to, photo imagery, video, and text. Affiliates will have access to pre-approved photo and imagery of Dylan Amey to utilize.

1. Income and Business Opportunity Claims:

Affiliates are expressly prohibited from making any claims that use of Optiphone will guarantee that the user will make money. If Affiliate’s recruiting efforts include claims related to income Affiliate has made from using Optiphone or as an Affiliate, the following guidelines must be adhered to:

a. Affiliate’s statements must be completely true and accurate and supported by evidence of Affiliate’s experience; and

b. Affiliate’s statements must be accompanied by the following disclaimer in clear and conspicuous font and placement: “These were my results. Your results will vary based on a variety of factors including Your education, effort, and market factors. There is no guarantee You will make any money.” Affiliate is also expressly prohibited from making any express or implied claims that Optiphone is or provides a business opportunity, franchise opportunity, a “business-in-a-box,” or an assisted marketing plan.

2. Optiphone’s Trademarks:

No logo, tagline, trademark, trade name, or trade dress (collectively, the “Optiphone Trademarks”) owned by Optiphone may be used, copied, or reproduced by any Affiliate except as set forth below. No Optiphone intellectual property (or any mark confusingly similar to any Optiphone intellectual property) is to be registered as a trademark in any country or registered as a domain name by Affiliate in any way in any country. Subject to the restrictions below, approved Affiliates are granted a limited, revocable, non-transferable, and non-assignable license to use the “Optiphone” trademarks, trademarks pending, to advertise Optiphone online. Affiliate may not use “Optiphone” or other Optiphone’s trademarks as part of any URL, domain or website name. Optiphone retains exclusive ownership of all Optiphone’s Trademarks and other intellectual property and all of its rights therein. Affiliate shall not promote or provide services to any other business or person that is infringing any of Optiphone’s intellectual property.

3. Complaint Notification:

Affiliate must notify Company of any complaint received by Affiliate regarding any advertisements within twenty-four (24) hours of receiving such complaint. Notice should be sent to [email protected]. Complaints include but are not limited to any paid customer complaints received by the Affiliate regarding Optiphone or related products and any warnings/banned communication received by the Affiliate from social media platforms.

4. Independent Contractor:

Affiliates are independent contractors of Optiphone. It is the express understanding and intention of the Parties that no relationship of master and servant nor principal and agent shall exist between Optiphone and You by virtue of this Agreement. You have no right to act on behalf of or bind Optiphone in any way, nor share in the profits or losses of Optiphone. The only compensation available to You is set forth in this Agreement. You are solely and exclusively responsible and liable for all of Your acts or omissions.

NO WARRANTY; NO LEADS:

Optiphone does not promise, guarantee or warrant Your business success, income, or sales. You understand and acknowledge that Optiphone will not at any time provide sales leads or referrals to You. You understand and agree further that this is not a business opportunity, a franchise opportunity, a “business-in-a-box,” or an assisted marketing plan. You are responsible for procuring and paying for any and all materials and resources necessary to operate as an Affiliate as You determine in Your sole discretion.

LIMITATION OF LIABILITY. EXCEPT WHERE OTHERWISE INAPPLICABLE OR PROHIBITED BY LAW, IN NO EVENT SHALL OPTIPHONE OR ANY OF ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, INDEPENDENT CONTRACTORS, TELECOMMUNICATIONS PROVIDERS, AND/OR AGENTS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE, OR ANY OTHER, DAMAGES, FEES, COSTS OR CLAIMS ARISING FROM OR RELATED TO THIS AGREEMENT, THE PRIVACY POLICY, THE SERVICES OR PRODUCTS, YOUR OR A THIRD PARTY’S USE OR ATTEMPTED USE OF THE WEBSITE OR ANY SOFTWARE, SERVICE, OR PRODUCT, REGARDLESS OF WHETHER OPTIPHONE HAS HAD NOTICE OF THE POSSIBILITY OF SUCH DAMAGES, FEES, COSTS, OR CLAIMS. THIS INCLUDES, WITHOUT LIMITATION, ANY LOSS OF USE, LOSS OF PROFITS, LOSS OF DATA, LOSS OF GOODWILL, COST OF PROCUREMENTOF SUBSTITUTE SERVICES OR PRODUCTS, OR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, OR OTHER DAMAGES. THIS APPLIES REGARDLESS OF THE MANNER IN WHICH DAMAGES ARE ALLEGEDLY CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), WARRANTY, OR OTHERWISE.

IN NO EVENT SHALL OPTIPHONE’S LIABILITY TO YOU OR YOUR BUSINESS EXCEED TWO-THOUSAND DOLLARS ($2,000).

5. DISPUTE RESOLUTION BY MANDATORY BINDING ARBITRATION, CLASS ACTION WAIVER, & GOVERNING LAW.

Any controversy or claim arising out of or related to this Agreement or Your relationship with Optiphone that cannot be resolved through negotiation within 120 days shall be resolved through binding arbitration in accordance with Australian law. Arbitration will be administered by a mutually agreed-upon arbitration body, such as the Resolution Institute or another recognized arbitration provider in Australia, in accordance with their rules. The arbitration will take place in Queensland, Australia, and judgment on the award rendered may be entered in any court having jurisdiction in Australia. The following conditions apply: Class Action Waiver: You agree to waive any right to participate in a class action or collective proceeding related to this Agreement. Governing Law: This Agreement shall be governed by and construed in accordance with the laws of the State of Queensland, Australia, and the Commonwealth of Australia, without regard to its conflict of law provisions. Sections of Optiphone’s Terms of Service entitled “Dispute Resolution,” and “Governing Law” are expressly incorporated herein by reference. Please review the Terms of Service for further details.

6. Indemnity:

You agree to protect, defend, indemnify and hold harmless Optiphone, its officers, directors, employees, owner(s), and parent company(ies) and assigns from and against all claims, demands, and causes of action of every kind and character without limitation arising out of Your conduct, acts, or omissions related to Your application and/or performance of this Agreement including, but not limited to, any breach of this Agreement. Your indemnity obligation includes, but is not limited to, any third party claim against Optiphone for liability or payments for damages caused by, or other liability relating to, You. This provision expressly survives the termination of this Agreement.

7. Severability:

In the event any provision of this Agreement is inconsistent with or contrary to any applicable law, rule, or regulation, the provision shall be deemed to be modified to the extent required to comply with the law, rule, or regulation, and this Agreement and the Terms of Service, as so modified, shall continue in full force and effect.

8. Modification/Amendments:

This Agreement and Optiphone’s standard Terms of Service may be modified by Optiphone at any time, with or without prior notice to You. Amendments or modifications to this Agreement or the Terms of Service will be binding on You when they are sent to You via email, or are posted in the affiliate centre. No amendment to this Agreement or the Terms of Service shall be valid unless prepared or signed by Optiphone. Your continued acceptance of Commission or Optiphone Affiliate Bonus payments constitutes Your acceptance to any modifications or amendments to this Agreement and the Terms of Service.