terms & conditions
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ADVERTISER SERVICE AGREEMENT
Registering with AVAZ Media LLC affiliate network service shall constitute an explicit acceptance to the terms and conditions of this Agreement which will then take effect and be legally binding to the affiliate. This Agreement is intended for individuals and legal entities. This Agreement is entered between:
AVAZ Media LLC( hereinafter referred to as the “Company”) on the one part and ;
(hereinafter referred to as the “Advertiser”), of the other part. on the following terms and conditions
Whereas, the Company owns, operates and develops, http://www.avaz.com/ advertiser, a website specified for affiliate network service to connect with Company’s affiliate network advertisers and affiliates; and
Whereas, the Company wishes to promote advertisements of Advertisers on websites owned by the Affiliates and to link the websites of the Affiliates with these advertisements, by means of diverting the Visitor to the Advertiser websites by clicking on these advertisements and/or on the links placed on such advertisements; and
Whereas, the Advertiser is a person or a legal entity seeking online advertisement through the Company and its affiliates websites for advertising campaigns (the” Campaign”).
The Company and the Advertiser (including all its successors and permitted assignees) agree that valuable consideration has been given and that this Agreement together with the accompanying additional terms and conditions of the Company’s Performance Marketing Program (the “PMP”) and the insertion order shall govern the relationship between them;
NOW, THEREFORE, the Parties hereby agree as follows:
Definition of Terms:
- Complete Action: Term used to describe the process of getting a web visitor to accept an offer or become a paying customer.
- Advertiser /Merchant: an e-commerce entity or other online business entity which is a client of the Company paying a commission or bounty for legitimate sales, leads, or other measurable action by a Visitor.
- Advertiser’s offer/program: An advertising campaign, which Company’s Affiliate (the“Publisher”) joins and gets compensated in accordance with the terms and conditions of the PMP and program’s payout specifications
- Ad (Advertisement): Any material of a marketable or promotional nature in a text or image format.
- Affiliate/ Publisher: an individual or business generating their own traffic and thusrewarded for legitimate sales, leads, or other measurable action.
- Affiliate’s website: A website or a group of websites on the internet contains several pages, services and systems.
- Commission: the percentage from the amount of sale value or lead value agrees to pay for an individual measurable action.
- Creative: any image, text, programming code, graphic content, or any combination thereof that makes up an advertisement.
- Default Rate: Based on performance of the Campaign over the 7 previous days prorated based on the amount of time the tracking pixel was inactive due to action taken by the Advertiser.
- Company Affiliate network: Is an affiliate marketing service, in which the advertiser can create lead/ sale generation campaign and to promote his products and services through affiliates in commission-basis.
- Offer: It’s an advertising campaign initiated by the Advertiser/Merchant with specific program details, commission and advertisements.
- Payout: the amount/commission that received by the Affiliate for generating valid and legitimate sales or leads for the Advertiser.
- Rate: It is fixed or percentage value of lead/action/sale assigned by the advertiser when create the offer.
- Visitor: Any person or user that views and/or clicks on a Link and/or advertisement on the Affiliate’s website.
- Void: A reversal of a Payout previously earned for a lead or sale by the Affiliate. You may void transactions that are fraudulent, or in the case of returned merchandise, duplicate transactions, or other valid reasons.
- Account Balance: indicates the current monetary value of monies deposited into the Advertiser’s account used to pay Affiliates for Commissions generated as well as Company’s fees.
The Preamble and all appendixes of this Agreement shall be considered an integral part of this Agreement and shall be read with it.
2. Agreement and Documents
- 2.1 Any Insertion Order “IO” placed by the Advertiser shall be governed by the terms of this Agreement and should there be any conflict between the terms of this Agreement and IO then the terms of this Agreement shall prevail.
- 2.2. When the Advertiser submits an IO to the Company and the Advertiser agrees to be bound by the rates quoted by the Company and in addition deemed to accept Company’s terms of business under which advertising is sold.
3. Obligation of the Company :
The Company takes care to display the proper Ads which are consistent with websites that conform to the Company’s advertising policy and to provide its services in the best possible manner.
4. Obligations of the Advertiser:
The Advertiser shall be responsible for the preparation of his/its website, all the required materials relevant to the Advertiser’s campaign and the substantive content of each advertisement, checking the technical matters relating to same, and adding the corresponding pixel tracking code in a correct way to enable your page record lead and/or sale conversion correctly (“Creative”) in a manner that corresponds to the delivery method and medium of the Publisher. The Company shall have no liability whatsoever in relation to any mistakes or other problems with the content of the Creative or any problems associated with the Creative going live.
Undertakes to exert care and persistence while performing its duties, which should be conducted at the highest professional levels.
To comply with the instructions related to insertion of pixel tracking code on pages of his/its thank you or order confirmation pages.
Providing valid address, contact details, and payment details as the Company may reasonably require.
The Advertiser will not, without the express written consent of the Company, use or permit the use of trade names and trademarks owned by third parties.
To enable the Company and the Publisher to market the Campaign, the Advertiser grants the Company and the Publisher a nonexclusive, royalty free irrevocable license to use the Creative and Campaign materials in such manner as is necessary to carry out Advertiser’s Campaign. This shall include, but not be limited to marketing, transmitting, distributing, performing and promoting the Campaign in accordance with the terms of this Agreement.
The Advertiser may amend or alter its Creative depending on the delivery method of the Publisher. The Company shall undertake to amend or alter the Creative of the Advertiser only upon:
- i. Advertiser’s written request to the Company to receive the particular service and ; Payment of the corresponding fee, indicated by the Company
For the avoidance of doubt, where this Agreement is entered into by an agent on behalf of the Advertiser, that agent confirms that the Advertiser has read and agrees to the terms of this Agreement and shall become bound bv them. In the event that the agent or Advertiser do not honour the payment provisions in this Agreement then the Company shall be able to pursue the agent and the Advertiser jointly and severally for such payment.
5. Use Policy:
The Company takes care to display the proper Ads which are consistent with websites that conform to our advertising policy. In order to obtain approval of your offer as an Advertiser at Company’s affiliate network, you should abide by the following conditions of Company’s affiliate network service:
- i. You must provide the Company with truthful, accurate and complete registration information. If any such information changes, you must immediately update your registration information.
- ii. The Creative and the site where customers are directed to must not contain any of the
- a. Distortion and desecration of and showing enmity to any religions.
- b. Drugs, cigarettes and alcoholic drinks.
- c. Pornography and explicit sex.
- d. Services of forgery, information stealing and site penetration.
- e. Arm trade, violence and killing
- f. Gambling and lottery.
- g. The website / websites with advertising content only.
- h. Any request or Campaign that may directly or indirectly in anyway whatsoever compete
with the business of the Company.
The Company shall solely have the right to decide whether to accept or decline Advertiser’s offer,and the Advertiser shall not have the right to object to such decision in any way whatsoever.
The Company may amend or alter Advertiser’s Creative depending on the delivery medium and method of the Publisher upon the written consent
The Advertiser acknowledges and understands that the Company has minimum performance expectations for each Campaign. In the event that the Advertiser Campaign does not meet with those performance expectations the Company has the right to notify the Advertiser that the Company is pausing the Campaign for up to working days (“Break Days”). During the Break Days the Company and the Advertiser shall work together to consider Company’s concerns and consider changes to the Advertiser’s rates and/or the Creative itself. For the avoidance of doubt the Company will not change the Creative unless it has the express consent of the Advertiser. If, following discussions with the parties does not believe the Campaign has the potential to meet the minimum performance expectations then the Company may in its sole opinion give the Advertiser 24 hours’ notice of the cancellation of the Campaign. In the event that the Advertiser has pre-paid for any element of the advertising of the Campaign the Company shall refund the unused credit. The Company in due diligence cannot monitor the entire Publishers’ websites where the Campaign is or may be hosted, and makes no representations with respect to anywebsite or video within the network.
Unless otherwise agreed in writing between the Parties, the Company shall be responsible for hosting the Campaign and implementing the tracking count system for all Campaigns under this Agreement. To enable the Company to effectively track consumer response and gather statistics for affiliates of the Company, the Advertiser permits the Company to place pixels on the Advertiser’s website and run and maintain the tracking count system as notified to the Advertiser from time to time. The Advertiser understands the importance of the tracking count system and as such understands that the to enable the Company to effectively track consumer response and gather statistics for affiliates of the Company, the Advertiser permits the Company to place pixels on the Advertiser’s website and run and maintain the tracking count system as notified to the Advertiser from time to time. The Advertiser understands the importance of the tracking count system and as such understands that the Company will not provide advertising services until such time as the Company has implemented the track count system to its reasonable satisfaction. In the event that the Advertiser affects the track count system in any way or should the Advertiser website go down for a period exceeds three hours without notifying the Company in writing, the Company reserves the right to suspend performance of the Campaign and the Company shall be permitted to charge Advertiser’s Default Rate for the days in which the tracking system was interfered with.
6. Lead Generation (‘LG’)
The Advertiser shall be responsible for validating all the Leads. In the event that the Advertiser finds an error in the LG this must be reported to Company representative within 5 working days of such finding. The Company shall have no liability whatsoever in the event that the Advertiser fails to report the incorrect data and the Advertiser shall have no right whatsoever to dispute making payment to the Company in relation to such LG
7. Voids/Charge Backs/Product Returns:
Once payment to an Affiliate has been made it cannot be reversed. Affiliates will be paid based upon the undisputed amounts accrued in their account. However, commissions given to a particular affiliate on qualifying Sales can be reversed by the Advertiser when the Transaction is not eligible for a Payout, only in the following circumstances:
- Cancelled sales
- Product returns
- Clear errors
- Duplicate or repeat errors
- No receipt of payment from Customer
- Refund of payment to Customer
- Failure by an Affiliate to comply with the Terms of Agreement set forth by the Company’s affiliat network and the Advertiser.
Activity generated each month must be audited and validated between the 1st to the 5th of the following month by the Advertiser, once leads/sales highlighted as unqualified and void the Advertiser should inform the Company by listing the leads/sales should be void to take action from our side and do the deduction from affiliate account earnings. Failure to process transaction’s
status within the specified term results in a locked transaction status. Payment of the Payout and Transaction Fees associated with that Transaction must then be authorized by the Advertiser.
- i. All payments will be made in advance unless credit is approved. If Advertiser is required to pay in advance, the Company is under no obligation to perform agreed upon services until payment is received.
- ii. In the event of approved credit, invoice rendered by the Company shall be issued on monthly basis for the Actions sent for the previous thirty day period. Invoices should be paid within the period agreed upon in the insertion order from the date of receipt of the invoice (which may be sent by email and/or postal mail). All payments must be in US currency.
- iii. The minimum price to start campaign at our network is US$50,00.
- iv. The minimum period for campaign must be at least one calendar month.
- v. Where payment is made by credit card, Advertiser expressly agrees not to charge back any amounts and will instead follow the dispute resolution procedures as specified herein.
- vi. Advertiser agrees that timely payment is necessary for continued Action delivery and the Company reserves the right to halt its services at any time upon failure to comply with the payment terms as set forth above.
- vii. Advertiser will be charged $50 for payments by checks that are returned due to insufficien fund. The Company shall be entitled to recover all reasonable costs of collection (including agency fees, attorneys’ fees, in-house counsel costs, expenses and costs) incurred in attempting to collect
payment from Advertiser.
- viii. Where credit is not approved, Advertiser must maintain a positive balance on their Company’s affiliate network account which is used to run Advertiser’s offer and pay Affiliates for commissions generated.
- ix. Where applicable, if Advertiser’s account balance falls below $0, all links will cease to function until such time that the Advertiser is able to make a deposit into the account.
- x. All payments to Affiliates, including commissions, bonuses, or rewards, shall be processed through Company’s affiliate network.
- xi. In the event that any invoice rendered by the Company is disputed:
- The Advertiser must raise such dispute within 15 days of the date of the invoice. Should no dispute be raised then the invoice shall be treated as undisputed and payable.
- Any dispute raised by the Advertiser must be supported with any relevant documentation and a detailed analysis of the dispute.
- Company’s tracking count shall be final and binding.
9. Assignment of this Agreement and Sub-contracts:
- i. Under penalty of subscription cancellation and Agreement termination, theAdvertiser shall not have the right to assign this Agreement to any other party, wholly or partially, nor to entrust any other person or website to carry out any work emanating from this Agreement.
- ii. The Company may at any time assign, transfer, charge, subcontract or deal in any other manner with any of its rights or obligations under the Agreement.
10. Agreement Term and Method of its Termination:
- i. This Agreement shall take effect once the Company accepts the registration of the Advertiser to Company’s affiliate network service, and it shall remain valid until it is terminated by either party.
- ii. The Company shall have the right to terminate this Agreement at any time without giving a notice thereof or justifications. The Advertiser shall not have the right to claim for any compensation, fees, or entitlements; the Advertiser shall pay the Company all monies due to be paid under this Agreement and where applicable for any work that has been commenced and has not been terminated. Advertiser may terminate this Agreement upon (7) seven working days written notice to Company’s affiliate network prior to termination date. In such event, the Company’s shall be liable to refund any unused advance payments made in respect of any services not received by the Advertiser upon the effective termination date, less any amounts due to the Company , to be paid within 30 days of the termination effective date. The written Notice under this clause may be given by Email and shall be effective on receipt provided that a delivery report has been requested.
11. Nature of Agreement:
- i. This Agreement does not constitute a partnership or any form of partnerships between the two parties under any effective applicable law.
- ii. The Advertiser is not considered an employee of or a worker of the Company; neither shall it have the right to represent the Company nor to enter into contracts on behalf of the Company with any third parties.
12. Fees and Stamps:
The Advertiser shall be responsible for payment of revenue stamp fees or any other fees applicable to this Agreement or shall be imposed in the future in accordance writtenh the relevant laws, regulations and instructions in force.
- i. Neither party may, during the term of this Agreement and upon its expiry, disclose to any other party any information or secrets associated with the software and/or prices and/or any information related to the business and activities of either party and the knowledge it has about the functioning
and execution of this Agreement unless such disclosure is agreed upon by both parties in writing.
- ii. The Advertiser undertakes to strictly maintain the commercial secrets of the Company which might be revealed during the installation of the software subject matter of the Agreement, before obtaining the written consent of the Company regarding same.
- iii. The Parties agree and understand that a material breach of this Clause will cause the non breaching party to suffer irreparable harm and that monetary damages may be inadequate as compensation. The parties agree that the non-breaching party will, in addition to all other remedies, be entitled to injunctive relief without needing to show actual damage and/or shall be entitled to specific performance of the terms of this Agreement against the party who is in breach or threatens to be. The parties agree that this provision is a reasonable one to be included in this Agreement
14. Notarial Notices:
Both parties waive sending notarial notices to each other regarding the execution of the terms of this Agreement.
15. Ownership and Disposal:
It is understood to and agreed upon by both parties that ownership of Company’s Affiliate Network and all the related software used in the provision of the service, delivered to the Advertiser shall be of the Company, and the Advertiser shall not have the right to transfer and own client basis, which Company may incur as the direct or indirect result of any unauthorized disclosure of the Confidential Information by the Advertiser or any person for whom the Advertiser is responsible in law. The Advertiser acknowledges that it is an inevitable part of web and Email based marketing that such delays can occur and that the Company shall have no responsiblesponsibility for any loss sustained by the Advertiser as a result of such delays.
16. Spyware and Other Parasites:
Any Advertiser suspected of a relationship, formal or informal, with any provider of spyware or parasitic software (as judged by any interference with the operation by design of the Company and/or its partner sites is subject to corrective actions by the Company , without notice, including but not limited to: suspension of Advertiser account; and termination of Advertiser account.
17. The Governing Law:
This Agreement will be construed in accordance with the laws State Of Delaware USA
If any dispute arises out of or in connection with this agreement, it shall be referred to and finall resolved by binding arbitration as set out below, under the Arbitration Rules of The State of Delaware USA– London Court of International Arbitration, which rules are deemed to be incorporated by reference into this clause.
During the term of this Agreement and for a period of six (6) months thereafter, the Advertiser will not seek, in any way, to undermine the goodwill of the Comapny andin particular, the Advertiser will not, directly or indirectly: (1) Solicit or entice or attempt to solicit or entice, work away from the Company ; (2) Solicit or entice or attempt to solicit or entice any of the employees of the Company to enter into employment service with the Advertiser or a competitor of the Comapny; or (3) Directly or indirectly enter into any agreement or contract, written or otherwise, with any Affiliate/Publisher with the intention of competing with the Company in relation to matters relating to this Agreement
Each Party (including its successors, Affiliates, officers, directors, employees and agents) (the “Indemnifying Party”) shall indemnify and hold the other party (including its successors, Affiliates officers, directors, employees and agents) harmless for any losses, claims, damages, awards, penalties, or injuries incurred by any third party, including reasonable attorney’s fees, which arise from any alleged breach of such indemnifying party’s representations and warranties made under this Agreement, breach of the terms of this Agreement, infringing third Party’s Intellectual Property and failure to comply with all applicable laws and regulations. The Indemnifying Party shall promptly notify the other party in writing of any claim relevant to the above indemnity.
21. DISCLAIMER AND LIMITATION OF LIABILITY
- i. The Company disclaims all warranties, conditions, representations, indemnities and guarantees with respect to any matter, whether express or implied (including without limitation any warranty of profitability, satisfactory quality, merchantability, fitness for any particular purpose, title and non infringement).
- ii. Notwithstanding any other provision of this Agreement, the Company additionally disclaims all obligations and liabilities on the part of the Company and those for whom it is in law responsible for any damages, including, but not limited to, indirect, special, and consequential damages, attorneys’ and experts’ fees, and court costs (even if the Company has been advised of the possibility of such damages, fees or costs), arising out of or in connection with this Agreement.
- iii. In no circumstance will the Company be liable to the Advertiser for any consequential, indirect, special, punitive or incidental damages or lost profits of the Advertiser or Advertiser’s successors or assigns (including without limitation claims for loss of goodwill, use of or reliance on the services provided hereunder, stoppage of other work or impairment of other assets) arising out of breach or failure of express or implied warranty, breach of contract, misrepresentation, negligence, strict liability in tort or otherwise. Without limiting the foregoing, the Company will not be liable for any failure or delay resulting from any governmental action, fire, flood, insurrection, earthquake, power failure, riot, explosion, embargo, strikes whether legal or illegal, labour or material shortage, transportation interruption of any kind, work slowdown, actions or inaction of the Advertiser or third parties, Affiliate’s equipment or software and/or any third party equipment or any other condition affecting production or delivery in any manner beyond the control of the Company.
This Service Agreement (“Agreement“) is made by and agreed to between AVAZ Media LLC ( hereinafter the “Company”) and you as a potential service provider (hereinafter “You”), of Company’s performance marketing programs by providing services (“Network Service“) via the Internet. A Performance Marketing Program (the “Program“) has been designed for persons, entities, affiliates or its agents operating web site(s) (internet domain, or a portion of a domain) and/or other promotional methods by which they drive traffic to a web site or web site content operated by another person or entity (the “Advertiser) by a visitor (any person or entity that is not the publisher or the publisher’s agent to the website of the Advertiser referred by such publisher (the “Publisher“)through an Internet connection (“Link“) who shall accept an offer or become a paying customer of the Advertiser (“Complete Action”) in return of a commission (the “Payouts“).
1. Participation in Programs.
- (a) Acceptance by Company. During this Agreement You may apply to the Program for the opportunity to earn Payouts by promoting Advertisers in accordance with the Program terms and complying with this Agreement. Upon approval by the Company for acceptance into its Program, You may display (and remove) Links to Advertiser’s Web site or Web site content in accordance with this Agreement.
- (b) Advertiser’s Program. The details of Asvertiser’s Program shall be available through the Company’s website at https://avazmedia.hasoffers.com/advertiser_signup (the “Network Service”). Transactions qualifying for a Payout are defined by the Advertiser. Advertisers may change any Payout rate upon no less than 7 days written notice through the Network Service with effect from the 8th day (or such later date as specified by the Advertiser).
- (d) Prohibited Uses of Links.
- (d) Prohibited Uses of Links.
- (i) Locations. You may not place Links to an Advertiser’s Web site or Web site content in third party newsgroups, message boards, blogs, unsolicited email and other types of spam, link farms, counters, chatrooms, or guestbooks. Publishers using IRC channels, instant messages or similar Internet resources must designate their program as special requiring manual review and acceptance by the Advertiser.
- (ii) Non-Bona Fide Transactions. You must promote Advertisers such that You do not mislead the Visitor, and such that the Links deliver bona fide Transactions by the Visitor to Advertiser from the Link. You shall not cause any Transactions to be made that are not in good faith, including, but not limited to, using any device, program, robot, Iframes, or hidden frames. You may or may not be compensated for Transactions where You or Your agent are the Visitor. Multiple Leads from the same individual, entity or IP address may be considered non-bona fide Transactions. You shall not earn Payouts for non-bona fide Transactions.
- (iii) Infringement. None of Your promotional activities may infringe an Advertiser’s proprietary rights (including but not limited to trademark rights), Company’s proprietary rights, or a third party’s proprietary rights.
- (e) Updating Links. If Links to Advertiser are not dynamically updated through the Network Service, upon notification You are obligated to update an Advertiser’s Links in order to earn Payouts.
- (f) Emails. You hereby understand, acknowledge and accept that Company, Company’s systems, Company’s partners’ systems and/or third party systems may and have the right granted by You to send emails and other communications to You on behalf of the Company, Advertisers, and other Company’s partners and affiliates, including solicitation and service solicitation emails. You may have the ability to change some of Your email settings and preferences.
2. Publisher Obligations to the Company.
- (a) Accurate, Up-to-Date Information. You agree to provide the Company and the Advertiser with accurate information about You and Your promotional methods, and to maintain up-todate information (such as contact information, Web sites used, etc.) in your account “Account”. In Your Account, You must accurately, clearly and completely describe all promotional methods by selecting the appropriate descriptions and providing additional information when necessary. Some promotional methods will be designated by the system as “special programs”. Special programs are linked to promotional methods and practices considered unique and require manual approval and acceptance by the Advertiser. The Company reserves the right to define any program as special.
- (b) Use of Links. You represent and warrant that all promotional means used by You will not contain objectionable content (including but not limited to content that is misleading, libelous, defamatory, obscene, violent, bigoted, hate-oriented, illegal, and/or promoting illegal goods, services or activities), and that You will not mislead others. You agree to:
- (i) use ethical and legal business practices,
- (ii) comply with the Advertisers’ Program terms and the terms of this Agreement,
- (iv) designate Your Publisher Account as “special” if You promote an Advertiser(s) by any means other than displaying a Link to the Advertiser on Your Web site. The Company must approve all of Your promotional activities and may deem Your promotional activities inappropriate and a material breach of this Agreement in Company’s sole discretion. The network quality department reviews publisher conduct and any suspected fraudulent, abusive or otherwise illegal content or activity by You through Your promotional methods, or that is perpetrated through use of the Network Service, give rise grounds for immediate termination
of this Agreement or deactivation of Your Account.
- (c) Promotional Methods. You represent and warrant that You will not engage in and/or facilitat spamming, indiscriminate advertising or unsolicited commercial email or otherwise fail to comply with the relevant laws and regulations that govern email marketing and/or communications and/or privacy. You represent and warrant that You will not engage in popup or pop-under advertising using any means involving third party properties and/or services (software). Pop up/unders are acceptable on a first party basis only when triggered by Your site content /site visit or by downloadable software applications for which You are the owner/operator. Pop up/unders delivered through downloadable software cannot engage in means that force clicks or perform redirects, or pop over a pay-per-click listing or natural search results. Pop up/unders must honor the Company’s Publisher Code of Conduct requirements (as such requirements may be modifie from time to time), including but not limited to:
- (i) installation requirements,
- (ii) enduser agreement requirements,
- (iii) afsrc=1 requirements,
- (iv) requirements prohibiting usurpation of a Transaction that might otherwise result in a Payout to another Publisher (e.g. by purpose fully detecting and forcing a subsequent click through on a link of the same Advertiser) and
- (v) non-interference with competing advertiser/ publisher referrals.
- (d) Personally Identifiable Information of Visitors. You represent and warrant that You will not enable the Tracking Code to collect personally identifiable information of Visitors that would allow Company to personally identify Visitors.
for discontinuing use of such cookies.
- (f) Applicable Codes and Code Maintenance. In order for the Company to record the tracking of Visitors’ Transactions resulting from clicks on Links to Advertisers promoted by You, You must include and maintain a “Tracking Code” within the Advertiser’s Links. All Advertiser Links and all advertisements (“Ad Content“) must be in a Network Service compatible format.
- (g) Usage and Security of Account. You shall be responsible for all usage and activity on Your account and for loss, theft or unauthorized disclosure of Your password (other than through Company’s negligent or willful conduct or omission). You shall provide the Company with prompt written notification of any known or suspected unauthorized use of Your Account or breach of the security of Your Account.
3. Company’s Services.
- (a) Tracking Transactions and Payouts. The Company shall determine (where possible) actual Payouts that should be credited to Your Account. The Company may, in its’ sole discretion, apply an estimated amount of Payouts, if:
- (i) You are referring Visitors to Advertiser as verified by clicks through Links to Advertiser with Company’s Tracking Code,
- (ii) where there is an error in Advertiser’s transmission of Tracking Code data to the Company, and
- (iii) where the Company is able to utilize a historical analysis of Your promotion of Advertiser to determine an equitable amount of estimated Payouts.
- (b) Charge-backs. An Advertiser may apply, or the Company may apply, a debit to Your Account in an amount equal to a Payout previously credited to Your Account in circumstances of :
- (i) product returns;
- (ii) duplicate entry or other clear error;
- (iii) non-bona fide Transactions;
- (iv) non-receipt of payment from, or refund of payment to, the Visitor by the Advertiser; or
- (v) Publisher failure to comply with Advertiser’s Program terms or other agreement with Advertiser (“Charge-back”). Charge-backs may be applied to Your Account at any time, including previous payment cycles.
- (c) Access to Tracking and Reporting Tools. The Company shall provide You with access to tracking and reporting tools, and to support services. From time to time the Company may offer optional services for a fee. Fees for such optional services are at Company’s thencurrent published rates or as may be quoted by the Company, and are payable in advance or may be off-set against our positive Account balance (at Company’s discretion). Tracking detail regarding Visitor Transactions is not available on a real-time basis for all Advertisers and there may be reporting delays regarding Transactions for some Advertisers. The Company may make available, for fees that shall publish from time-to-time, enhanced reporting capabilities and other services that are not included in the standard Network Service.
- (d) Support. Support for your program is available on-line through the “Contact Us” area in the Your Account Manager, which allows You to categorize and describe Your issue. Online help also allows You to check the status of all issues through the “Support Center ” feature. Phone support may also be available during operating hours, except holidays.
- (e) Facilitating Payment of Payouts. Subject to other provisions in this Agreement, the Company shall credit Your Account with a Payout for each qualifying Transaction in accordance with the Advertiser’s Payout rate and Program terms for the relevant Transaction. On or about the 10th day of each calendar month, the Company will issue to You any positive balance in Your Account for Transactions reported for the previous month, provided Your Account balance exceeds the required “Minimum Account Balance.” The Company shall have no obligation to make payment of any Payouts for which the Company has not received payment from the relevant Advertiser of all monies due to the Company (including for all Payouts owed by such Advertiser to all of such Advertiser’s Publishers). You agree that the Company has the right, but not the obligation, to seek on behalf of You any and all amounts due from Advertisers, including, but not limited to Payouts. If the Company, decide not to make payment to You for amounts not received from an Advertiser, those amounts shall not be included in the Minimum Balance Amount. Your recourse for any earned Payouts not paid to You shall be to make a claim against the relevant Advertiser(s), and the Company disclaims any and all liability for such payment. You may receive payment in the currency that the Company supports (as may be amended by the Company from time to time). The conversion rate shall be determined in accordance with Company’s operating standards and the Company has the right to assess service fees in order to process or stop your payment as necessary. The number or amount of Transactions, credits for Payouts, and debits for Charge backs, as calculated by the Company, shall be final and binding on You.
- (f) Dormant Accounts. If Publisher’s Account has not been credited with a valid, compensable Transaction that has not been Charged-back during any rolling, six consecutive calendar month period (“Dormant Account”), a dormant account fee at Company’s thencurrent rate shall be applied to Publisher’s Account each calendar month that Publisher’s Account remains an open yet Dormant Account or until Your Account balance reaches a zero balance, at which time the Account shall become deactivated. Transactions will not be counted if the Transaction subsequently becomes a Charge-back.
- (g) Negative Accounts. You may have a negative balance if Your Account is debited amounts equivalent to previous Payouts for Charge-backs and You do not have an adequate Account balance to cover the Charge-back amounts. When You have a negative balance, You must immediately remit payment to the Company in an amount sufficient to bring Your Account to a zero balance, or Your Account is subject to 1.5% interest per month, compounded monthly.
4. Proprietary Rights.
- (a) Linking to Advertisers. For each Advertiser’s Program that You have been accepted to, the Advertiser is granting to You the right to display and Link to the Advertiser’s Web site or Web site content in accordance with the Advertiser’s Program terms for the limited purposes of Promoting the Advertiser’s Program, subject to the terms and conditions of this Agreement. Your use of the Link signifies Your agreement to refrain from copying or modifying any icons, buttons, banners, graphics files or content contained in the Link, including but not limited to refraining from removing or altering any copyright or trademark notices. As between Company and the Publisher, the Company owns all rights in and to all information regarding the Visitors that You refer to Advertisers through the Company.
- (b) Company’s’ Use of Your Marks. You authorize the Company to utilize Your trademarks, service marks, tradenames, and/or copyrighted material that You provide to the Company through Your Account to promote Your participation in the Network Services.
- (d) Retention of Rights. All proprietary rights of Advertisers, You, and the Company, and all goodwill arising as a result of such rights, inure to the benefit of such owner.
- (e) No Challenge to Company’s/Advertiser’s Proprietary Rights. You acknowledge that You obtain no proprietary rights in Company’s trademarks, service marks, tradenames, URLs, copyrighted material, patents, and patent applications, and agree not to challenge Company’s proprietary rights. You acknowledge that You obtain no proprietary rights in Your Advertisers’ proprietary rights, and agree not to challenge such Advertiser’s proprietary rights.
- (f) Data Ownership. You understand that all personally identifiable information, if any, provided by Visitors through the Tracking Code or in response to an advertisement or request for information and/or any or all reports, results, and/or information created, compiled, analyzed and/or derived by the Company from such data is the sole and exclusive property of Advertiser and Company’s Affiliates and is considered as Company’s Confidential Information pursuant to this Agreement. The Company and any divisions, subsidiaries and affiliates of the Company and/or its Advertisers, in their sole discretion, shall have the right to use, market and re-market any Visitors and/or data
without further obligation to You. You shall not make any use of, copy, make derivative works from, sell, transfer, lease, assign, redistribute, disclose, disseminate, or otherwise make available in any manner, such data or Visitors, or any portion thereof, to any third-party.
- (a) Obligations. You or the Company may provide the other with information that is confidential and proprietary to that party or a third party, as is designated by the disclosing party or that is reasonably understood to be proprietary and/or confidential (“Confidential Information”). The receiving party agrees to make commercially reasonable efforts, but in no case no less effort than it uses to protect its own Confidential Information, to maintain the confidentiality of and to protect any proprietary interests of the disclosing party. Confidential Information shall not include (even if designated by a party) information:
- (i) that is or becomes part of the public domain through no act or omission of the receiving party;
- (ii) that is lawfully received by the receiving party from a third party without restriction on use or disclosure and without breach of this Agreement or any other agreement without knowledge by the receiving party of any breach of fiduciary duty, or
- (iii) that the receiving party had in its possession prior to the date of this Agreement. Upon termination of this Agreement, You must destroy or return to the Company any Confidentia Information provided by the Company to You under this Agreement.
- b) Provision of Info to Advertisers/Third Parties. You agree that the Company may, but is not obligated to, provide Your email address(es) and basic Publisher Account detail (including but not limited to Your address, phone and fax number, Web site name, the date the website or subscription email first entered into operation, and visitor demographics) to Advertisers. The Company may provide any and all Visitor, Transaction and/or Tracking Code data to the Advertiser to which You referred such Visitor, and to any third party in Company’s sole discretion, including but not limited to all regulatory, legislative and judicial bodies, and pursuant to allegations and claims of proprietary rights infringement.
6. Term, Termination, Deactivation and Notices.
- (a) Term. This Agreement shall commence upon Your indication that You have accepted thisAgreement by providing the required information and ‘clicking through’ the acceptancebutton on the Company’s web site and shall continue until terminated in accordance with the terms of this Agreement. This Agreement may be terminated by either party upon 15 days’ notice. This Agreement may be terminated immediately upon notice for Your breach of this Agreement. Your Account may be deactivated and/or Payouts may be withheld during investigation of breach of this Agreement. If this Agreement is terminated based upon Your breach, You shall not be eligible to enter into a new click-through Service Agreement with the Company, and any attempt to do so shall be null and void.
- (b) Termination by Advertiser. An Advertiser may terminate You, one of Your Web sites, or Your ability to use a promotional method, from the Advertiser’s Program for any or no reason, upon 7 days written notice with effect from the 8th day. Additionally, Advertiser may terminate You from the Advertiser’s Program for breach of a third party’s proprietary rights, and/or diluting, tarnishing or blurring an Advertiser’s trademarks, trade names, and/or service marks, or for Your material breach of the Advertiser’s Program terms or of this Agreement.
- (c) Termination or Deactivation by the Company. The Company may terminate You, one of Your Web sites, or Your use of a promotional method, from an Advertiser’s Program, at any time at its sole discretion. Breach of any section of this Agreement is cause for immediate termination from an Advertiser’s Program and/or termination of this Agreement, and may result in Charge-back of one or more Payouts. The Company may temporarily deactivate or terminate Your Account if:
- (i) You or Your agent are responsible for the improper functioning of Ad Content, or if You otherwise interfere with and/or fail to maintain the Tracking Code;
- (ii) Your Account has not been logged into and/or there have been no Transactions credited to Your Account for any 30 day period; (iii) You maintain a negative balance in Your Account;
- (iv) the Company determines You are diluting, tarnishing or blurring Company’s proprietary rights;
- (v) You begin proceedings to challenge Company’s proprietary rights; or
- (vi) a third party (including Company’s Advertiser) disputes Your right to use any Link, domain name, trademark, service mark, trade dress, or right to offer any service or good offered on Your Web site, or through any of Your promotional means. Upon termination of this Agreement, or in case of deactivation of Your Account, You shall no longer accrue Payouts in Your Account, including but not limited to subsequent sales and/or Leads for click-throughs that occurred prior to termination.
- (d) Termination of Programs and Offers. Programs and Offers may be discontinued at any time.
- (e) Notices. Except as provided elsewhere herein, both parties must send all notices relating to this Agreement to:
- (i) for the Company, via registered mail, and,
- (ii) for You, at the email or physical address listed on Your Account (effective upon sending as long as the Company does not receive an error message regarding delivery of the email) or five (5) days after mailing).
- (f) Post-termination. Upon termination of this Agreement, any outstanding payments shall be paid by the Company to You within 90 days of the termination date, and any outstanding debit balance shall be paid by You to the Company within 30 days of termination of this Agreement. All payments are subject to recovery for Charge-backs. Upon termination of this Agreement, any permission granted under this Agreement will terminate, and You must immediately remove all Links to Advertiser(s). Provisions of this Agreement that by theirnature and context are intended to survive the termination of this Agreement shall survive the termination of this Agreement to the extent that and as long as is necessary to preserve a party’s rights under this Agreement that accrued prior to termination.
7. Representations, Warranties, Disclaimers and Limitations.
- (a) Business Operations. Each party will make reasonable commercial efforts to keep its Web site operational during normal business hours. However, the parties agree that it is normal to have a certain amount of system downtime and agree not to hold each other or Your Advertisers liable for any of the consequences of such interruptions. The Company may modify the Network Service, or discontinue providing the Network Service, or any portion thereof, at any time.
- (b) Authority. Each party represents and warrants to the other party as to itself that the person executing this Agreement is authorized to do so on such party’s behalf. IF YOU ARE AN INDIVIDUAL, YOU REPRESENT AND WARRANT THAT YOU WERE AT LEAST 18 YEARS OF AGE ON THE EFFECTIVE DATE OF THIS AGREEMENT.
- (c) Non-infringement Warranties. You represent and warrant that:
- (i) You have all appropriate authority to operate, and to any and all content on, Your Web
- (ii) You have all appropriate authority in any promotional method you may choose to use;
- (iii) Your Web site(s) and Your promotional methods do not and will not infringe a third party’s,
Company’s Advertiser’s, or Company’s proprietary rights; and
- (iv) You shall remain solely responsible for any and all Web sites owned and/or operated by
You and all of Your promotional methods. The Company may or may not review all content on
Your Web site orused by You in Your promotional methods.
- (i) You have all appropriate authority to operate, and to any and all content on, Your Web
- (d) Compliance with Laws. You are responsible for compliance with the requirements of all relevant legislation (including secondary legislation and the rules of statutorily recognized regulatory authorities) in force or applicable under English Law or in any other applicable territory, and warrant that no promotion method used by You or the content of Your Web site(s) will render the Company liable to any proceedings whatsoever.
- (e) Limitation of Liabilities. ANY OBLIGATION OR LIABILITY OF THE COMPANY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL OF YOUR PAYOUTS PAID TO YOU BY THE COMPANY UNDER THIS AGREEMENT DURING THE YEAR PRECEDING THE CLAIM. NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST THE OTHER PARTY TO THIS AGREEMENT MORE THAN ONE YEAR AFTER THE TERMINATION OF THIS AGREEMENT. YOU AGREE THAT THE COMPANY SHALL NOT BE LIABLE TO YOU, OR ANY THIRD PARTY (INCLUDING BUT NOT LIMITED TO A CLAIM BY ANOTHER PUBLISHER OR AN ADVERTISER OF THE NETWORK SERVICE), FOR ANY CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF GOODWILL, LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR OTHER DATA, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIM.
- (f) Disclaimer of Warranties. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, THE COMPANY DISCLAIMS ALL WARRANTIES IMPLIED, INCLUDING, BUT NOT LIMITED TO, (A) MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENTOF THIRD PARTY RIGHTS, (B) THAT THERE ARE NO VIRUSES OR OTHER HARMFUL COMPONENTS, (C) THAT COMPANY’S SECURITY METHODS WILL BE SUFFICIENT, (D) REGARDING CORRECTNESS, ACCURACY, OR RELIABILITY, OR (D) AGAINST INTERFERENCE WITH ENJOYMENT OF THE PUBLISHER’S INFORMATION OR WEB SITE. ALL ‘INFORMATION’ AND ‘COMPUTER PROGRAMS’ PROVIDED TO YOU IN THE COURSE OF THIS AGREEMENT ARE PROVIDED WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. THE COMPANY IS, UNDER NO CIRCUMSTANCES, RESPONSIBLE FOR THE PRACTICES, ACTS OR OMISSIONS OF ANY ADVERTISER OR PUBLISHER, OR SUCH ADVERTISER OR PUBLISHER’S WEB SITE(S), AND/OR THE CONTENT OF AN ADVERTISER’S WEB SITE OR THAT AN ADVERTISER MAKES AVAILABLE THROUGH THE NETWORK SERVICE.
- (g) Remedies. No remedy or election shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity.
8. Publisher’s Indemnification Obligations
- Publisher shall defend, indemnify and hold the Company and Advertisers harmless against all claims, suits, demands, damages, liabilities, losses, penalties, interest, settlements and judgments, costs and expenses (including attorneys’ fees) incurred, claimed or sustained by third parties, including but not limited to Advertisers, directly or indirectly as a result of
- (a) Publisher’s breach of or non-compliance with this Agreement,
- (b) Publisher’s violation of any law, or an alleged violation of law by the Company, that is a direct or indirect result of Publisher’s use of the Network Service,
- (c) Publisher’s use of the Network Service,
- (d) Publisher’s participation in any Program,
- (e) any content, goods or services offered, sold or otherwise made available by Publisher to any person,
- (f) Publisher’s acts or omissions in using, displaying or distributing any internet links obtained from the Network Service or elsewhere, including but not limited to Publisher’s use of internet links via email distribution,
- (g) any violation or alleged violation by Publisher of any rights of another, including breach of a person’s or entity’s intellectual property rights (each (a)-(g) individually is referred to hereinafter as a “Claim”). Should any Claim give rise to a duty of indemnification under this Section 8, the Company shall promptly notify the Publisher, and the Company shall be entitled, at its own expense, and upon reasonable notice to Publisher, to participate in the defence of such Claim. Participation in the defence shall not waive or reduce any of Publisher’s obligations to indemnify or hold the Company harmless. Publisher shall not settle any Claim without Company’s prior written consent. Publisher also shall indemnify for any reasonable attorneys’ fees or other costs incurred by an indemnified party in investigating or enforcing this Section 8. In the context of this Section 8 only, the term “Company” shall include officers, directors, employees, corporate affiliates subsidiaries, agents, and subcontractors.
- (a) Headings and References. Headings of Sections are for the convenience of reference only. Words indicated in quotes and capitalized signify an abbreviation or defined term for indicated words or terms, including those definitions contained in the opening paragraph.
- (b) Third Party Disputes. In the event of a third party claim against either: (a) Company’s intellectual property; or (b) against Company’s right to offer any service or good on Company’s Web site(s) or if, in Company’s opinion, such a claim is likely, the Company shall have the right, at its sole option and in its sole discretion, to (i) secure the right at Company’s expense to continue using the intellectual property or good or service; or (ii) at Company’s expense replace or modify the same to make it non-infringing or without misappropriation.
- (c) Relationships of Parties/Third Party Rights. The relationships of the parties to this Agreement shall be solely that of independent contractors, and nothing contained in this Agreement shall be construed otherwise. Nothing in this Agreement or in the business or dealings between the parties shall be construed to make them joint venturers or partners with each other. Neither party shall do anything to suggest to third parties that the relationship between the parties is anything other than that of independent contractor. You agree that Your consent is not necessary to modify any Advertiser Service Agreement.
- (d) Validity. If, at any time, any provision of this Agreement is or becomes illegal, invalid, or unenforceable in any respect under any law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions nor the legality, validity or enforceability of such provisions under the law of any other jurisdiction will in any way be affected or impaired.
- (e) Choice of Law. This Agreement is governed by and shall be construed in accordance with the
State of Delaware USA
- (f) Force Majeure. Neither party shall be liable by reason of any failure or delay in the performance of its obligations hereunder for any cause beyond the reasonable control of such party, including but not limited to electrical outages, failure of Internet service providers, default due to Internet disruption (including without limitation denial of service attacks), riots, insurrection, acts of
terrorism, war (or similar), fires, flood, earthquakes, explosions, and other acts of God.
- (g) Assignment and Acknowledgement. Neither party may assign this Agreement without the prior express written permission of the other party. Notwithstanding the foregoing, Your consent shall not be required for assignment or transfer made by the Company due to operation of law, or to a related entity (e.g. parent or subsidiary of parent). Your use of the Network Service is irrefutable acknowledgement by You that You have read, understood and agreed to each and every term and provision of this Agreement. The Company may establish from time to time rules and regulations regarding use of the Network Service as published on the Network Service and incorporated herein.
- (h) Tax Status and Obligations. The Company is not obligated to and shall not provide You with tax and/or legal advice. The Company undertakes no duty to investigate or research Your tax status and/or obligations, and such research and investigation is solely Your responsibility. You are obligated to independently assess and comply with all relevant tax and legal requirements, and Advertiser is responsible for its own sales tax collection and reporting obligations arising from sales made to Visitors. Any information provided to you by the Company shall not be deemed as tax or legal advice, and the Company shall not be responsible for the accuracy of such information.
- (i) Entire Agreement, Assignment and Amendment. This Agreement, including the Introduction, contains the entire understanding and agreement of the parties and there have been no promises, representations, agreements, warranties or undertakings by either of the parties, either oral or written, except as stated in this Agreement. This Agreement may only be altered, amended or modified by an instrument that is assented to by each party to this Agreement by verifiable means, including without limitation by written instrument signed by the parties or through a “click through” acknowledgement of assent. Notwithstanding the foregoing, the Company shall have the right to change, modify or amend this Agreement, in whole or in part, by posting a revised Agreement at least 14 days prior to the effective date of such change. Your continued use of the Network Service after the effective date of such change shall be deemed Your acceptance of the revised Agreement.
IF YOU ARE AN INDIVIDUAL, YOU REPRESENT AND WARRANT THAT YOU WERE AT LEAST 18 YEARS OF AGE ON THE EFFECTIVE DATE OF THIS AGREEMENT