Affiliate terms

AFFILIATE NETWORK MARKETING TERMS & CONDITIONS APPLICABLE TO AFFILIATES

These Affiliate Network Marketing Terms & Conditions Applicable to Affiliates (hereinafter referred to as the “Terms”) between Desert Media (“Company”) and Affiliate.

PREAMBLE

Under these Terms, Company 

  1. offers Affiliate the opportunity to participate in and become a member of the Company’s group/network of associated affiliates (“Affiliate Network”), and 
  2. enables Affiliate, membership to Affiliate Network, to driver/refer internet traffic or leads to promote and market Advertiser’s (defined below) online store, products and/or services in exchange for agreed consideration; and
  3. provides its members of the Affiliate Network with access to links, offers and marketing campaigns with respect to the advertising and promotion, by Affiliate, of Advertiser’s online store, products and/or services (“Campaign Link(s)”) on Affiliates’ Site (defined below),

(collectively the “Services”).

Whereas, Company acts as a third-party intermediary between (a) publishers/affiliates/individuals/entities on the one hand (“Affiliate”), and (b) advertisers (“Advertiser(s)”), who are third parties to these Terms, on the other hand.

Whereas, Affiliate desires to join and become an official member of Company’s Affiliate Network, and Company is agreeable to providing the Services (as outlined below) to Affiliate conditioned upon the provisions of these Terms.

Now, in light of the aforesaid recitals and the shared commitments and provisions included in these Terms, the Parties hereby concur as follows:

DEFINITIONS

“Advertiser’s Campaign Link” means the link that is provided by Company to Affiliate which incorporates Company’s Platform and directs potential customers to Advertiser’s online store.

“Advertiser’s Marketing Content and Campaign Information” means all text, images, logos, videos, trademarks, service marks, button icons, audio files, digital downloads, data compilations, and software, and the compilation of all the foregoing that is provided by Advertiser to Company.

“Affiliate’s Site” means the website(s) and/or Internet-based marketing channels through which Affiliate promotes and markets the (Advertisers) Campaign Links.

“Commission” means the fee that is earned by Affiliate, as specified in the Insertion Order.

“Company’s Platform” means the technology platform that is used by Company to provide the Services.

“Insertion Order” means the written agreement between Company and Affiliate which incorporates these Terms and sets forth the specific terms and conditions of the Parties’ relationship, including without limitation, the Commission, the term of the agreement, and any other material terms and conditions.

“Intellectual Property Rights” means the COMPANY’S TRADEMARK(S), and any other exclusive rights to patents, inventions, utility models, copyrights, domain names, trade dress, goodwill, unfair competition, designs, computer software, databases, topographies, moral rights, Confidential Information (including knowledge and trade secrets), and any other intellectual property rights, registered or unregistered, including all applications for, renewals, and extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.

“Parasiteware and Parasitic Marketing” An application that is either deliberately or unintentionally causing the overwriting of Affiliate’s commission tracking cookies, or any other means of redirecting traffic other than a customer-initiated click on a qualifying Campaign Link on Affiliate’s Site, the installation of pop-ups or commission tracking cookies, or the utilization of hidden links and automatic pop-ups for contextual marketing purposes, as well as the replacement or blocking of Affiliate’s banners with any other banners, apart from those found on Affiliate’s Sites, shall not be allowed.

“Party” or “Parties” means Company and/or Affiliate, as applicable.

“Services” means the online marketing services provided by Company to Affiliate, as specified in the Insertion Order.

NON-EXCLUSIVE SERVICES

    1. Affiliate accepts and agrees that their involvement/membership in Company’s Affiliate Network and utilization of the Services (as defined beneath) are dependent on their (i) endorsement of and fulfilment of these Terms, and (ii) adherence to the terms and conditions of the appropriate Insertion Order (as defined below).
    2. No Exclusivity. Subject to the provisions and conditions of these Terms, Company agrees to provide Affiliate with the Services (as defined herein) on a non-exclusive basis. As a result, Affiliate acknowledges that Company reserves the right to (i) register other affiliates/individuals/entities on the Affiliate Network and (ii) provide other affiliates/individuals/entities with access to and utilization of the Services.

SERVICES

  1. Subject to the terms and conditions of these Terms, Affiliate agrees to use commercially reasonable efforts to provide Advertiser with the services specified under the applicable insertion order form filled out by Advertiser and which is signed by Company, Advertiser and Affiliate (“Insertion Order”), during the Term (defined below).
  2. Subject to Affiliate’s compliance with these Terms, Company hereby grants to Affiliate a non-exclusive, non-transferable, limited, non-assignable, non-sublicenseable, and revocable right to (i) access and participate in Company’s Affiliate Network, and (ii) promote and market Advertiser’s Campaign Link using Advertiser’s marketing content, trademarks, images, trade names, brand features and any trademark, logos, and graphics of the Advertiser  (collectively (“Advertiser’s Marketing Content”) on Affiliate’s website/platform/media (“Affiliate’s Site”)  to prospective customers. 
  3. Affiliate shall only utilize Advertiser’s Marketing Content for the purpose of promoting the Advertiser’s Campaign Link on the Affiliate’s Site (as defined herein) for the duration of these Terms and the applicable Insertion Order. Affiliate acknowledges that Company and Advertiser can object to any usage of Advertiser’s Marketing Content for any cause or without cause.
  4. Affiliate acknowledges, understands, and agrees that Company shall not be liable for any claims by third parties regarding Advertiser’s Marketing Content and Campaign Link. Therefore, the Affiliate agrees to indemnify and defend Company from any claims, damages, losses, liabilities, costs and expenses that may result from Advertiser’s Marketing Content and Campaign Link.
  5. Affiliate acknowledges and agrees that Company may modify the content of a specific Campaign Link at any time, in its sole discretion. Affiliate commits to cooperating with Company in order to use only Campaign Links which have been pre-approved by Company, and to be promptly notified of any such modifications.
  6. Affiliate acknowledges that the Campaign Links they are promoting on their Site can be distributed via various Internet-based marketing channels, including websites, banners, text links, display networks, contextual engines, emails, pop-ups, interstitial ads, and other agreed-upon methods.
  7. Campaign Link Restrictions. In promoting and marketing Advertiser’s Campaign Link on Affiliate’s Site, to potential customers, Affiliate shall not:
    1. spam or use unsolicited commercial emails, text messages and other postings;
    2. hide, cloak or disguise the identity of the Affiliate, the domain name related to the Affiliate’s Site, or the email address of the Affiliate.
    3. It is strictly prohibited to transmit any type of interstitials, Parasiteware, Parasitic Marketing, shopping assistance applications, toolbar Installations and/or add-ons, shopping wallets, or any deceptive pop-ups and/or pop-unders to customers. Such activities can be considered as deceptive and unethical and should be avoided. 
    4. provide incentives (including but not limited to cash, loyalty points or other monetary rewards) to potential customers, with the intention of increasing Affiliate’s Commission (defined below);
    5. use any adware software, browser helper objects or toolbars to promote the Campaign Links provided by Company to Affiliate;
    6. not frame Company’s Platform (defined below) inside another website for any purpose;
    7. use custom creatives (including but not limited to banners, gifs, and flash animations); and
    8. generate subscriptions by automatically subscribing unaware customers, without the customer’s express consent. 
  8. Fraudulent Transactions and Activities. Should Company have any reason to reasonably believe that Affiliate is conducting fraudulent transactions and/or is associated with fraudulent activity, Company may, in its sole and exclusive discretion: 
    1. reject payment of any Commission (defined below) derived from such fraudulent transaction/activity to Affiliate; 
    2. terminate these Terms without liability to Affiliate; 
    3. require Affiliate to return/reimburse any Commission (defined below) paid by Company to Affiliate, which Commission (defined below) is derived from any fraudulent transaction/activity conducted by Affiliate; 
    4. reject, suspend or cancel any traffic/lead which has been generated by promotional methods which in the opinion and/or discretion of Company is deemed to be not suitable and appropriate for any reason; and/or
    5. terminate any Affiliate’s participation in Advertiser’s Campaign Links at any time, in Company’s sole discretion, by providing Affiliate with written notice. Company shall remove Affiliate from the Advertiser’s Campaign Link(s) within twenty-four (24) hours of such written notice.
  9. Affiliate acknowledges and agrees that Company: 
    1. shall not be held liable for any third-party legal action(s), against Affiliate, arising from fraudulent traffic directed, by Affiliate, to Advertiser’s online store.
    2. reserves the right to monitor the Affiliate’s Site to determine, in Company’s sole discretion, whether Affiliate is in compliance with the terms and conditions of these Terms and the applicable Insertion Order.
    3. shall not be responsible for the payment to Affiliate of the Commission (defined below) in the event Affiliate (a) amends/modifies the details/content of any Campaign Link, and (b) does not properly track the traffic generating from a Campaign Link.
  10. Company may cancel the Services, should Company determine that Affiliate’s Site is unsuitable or inappropriate, including but not limited to, if Affiliate and/or Affiliate’s Site:
    1. Disseminates explicit materials, data, and content of a sexual nature.
    2. Promoting violence and discrimination on the basis of race, gender, faith, nationality, disability, sexual orientation, or age is strictly prohibited.
    3. Distributing, displaying, or linking to any material that is unlawful, encourages illegal activities, or supports fraudulent transactions is strictly prohibited.
    4. Incorporating any material or content that violates any third-party copyright, trademark or other intellectual property rights, or contravenes any law, regulation, or rule, is not allowed.
    5. Posting content on Company’s platform that is illegal, damaging, menacing, slanderous, offensive, vexing, or which is racially, ethnically or otherwise disagreeable as judged by Company in its exclusive discretion.
    6. Containing software downloads that potentially enable diversions of commission from other affiliates on the Affiliate Network.
    7. engaging in, any spam, deceptive, illegal or falsified tactics whatsoever in the promotion, publishing or advertising of any Campaign Link.

REGISTRATION ON AFFILIATE NETWORK

  1. To be able to use the Services, and become of Company’s Affiliate Network, Affiliate must register on the Company’s platform located at [.   ] (“Platform”) by providing all required information which shall include but not be limited to the Affiliate’s email, full name of the Affiliate’s manager, company name, and Skype ID.
  2. An account shall thereafter be opened by Company, in its sole discretion, for Affiliate on the Platform (“Affiliate’s Account”) and a unique ID assigned to Affiliate by Company. Affiliate’s Account may only be registered and used by one (1) single entity or individual. Affiliate may not access any third party’s account or authorize any third party to access Affiliate’s Account on Affiliate’s behalf. Affiliate acknowledges and agrees that Company may in its sole discretion (i) reject the registration of Affiliate’s Account for any or no reason, and (ii) deny Affiliate with access to the Services, Platform and Affiliate Network for any or no reason without any obligation for Company to disclose or explain the reason to Affiliate.
  3. Affiliate agrees to:
    1. provide true, accurate, current and complete information about Affiliate as prompted by Company’s registration process on the Platform; and
    2. maintain and promptly update the information provided during registration to keep it true, accurate, current, and complete at all times.
  4. If Affiliate provides any information to Company that is untrue, inaccurate, outdated, or incomplete, or if Company has reasonable grounds to suspect that such information is untrue, inaccurate, outdated, or incomplete, Company may close Affiliate’s Account on the Platform, and/or (ii) deny Affiliate the ability to access and use the Services.
  5. Affiliate may indicate, during the registration process, to Company Affiliate’s choice of Affiliate Account username and password to be used as login credentials to access Affiliate’s Account (“Login Credentials”). Affiliate shall be solely responsible for (i) maintaining the confidentiality of Affiliate’s Login Credentials; and (ii) any and all activities which occur under Affiliate’s Account. Affiliate agrees to notify Company immediately of any unauthorized use of Affiliate’s Account or any other breach of security. Company shall not be liable for any loss that Affiliate may incur as a result of any third-party using Affiliate’s Login Credentials and/or accessing/using Affiliate’s Account either with or without Affiliate’s knowledge. However, Affiliate may be held liable for losses incurred by Company due to any third-party using Affiliate’s Login Credentials and/or Affiliate’s Account. Affiliate acknowledges and agrees that Affiliate may not (a) use Affiliate’s Account of another affiliate registered on the Platform without the express permission of such affiliate account holder, and further acknowledges that Affiliate’s Account is for use by one user only, and (ii) impersonate any individual or entity, or falsely state or otherwise misrepresent any affiliation with an individual or entity when accessing the Platform and when using the Services.

RESPONSIBILITIES OF THE PARTIES

  1. Affiliate’s Responsibilities.  Subject to the terms and conditions of these Terms and any applicable Insertion Order, Affiliate agrees that:
    1. Affiliate must showcase the Campaign Link on the Advertiser’s Site in a way that does not present an unfavorable view of the Advertiser, Company, or mislead customers.
    2. The Affiliate must attract and refer fresh, valid customers (e.g. customers who have not had prior dealings with the Advertiser) to the Advertiser’s website through the Campaign Link displayed on the Affiliate’s website.
    3. Affiliate will direct potential customers to the Advertiser’s online store, in accordance to the predetermined traffic volumes and CAP that were mutually agreed upon by Company, Advertiser, and Affiliate under the applicable Insertion Order.
    4. Advertiser shall use reasonable efforts to ensure that the Campaign Link works on the Affiliate’s Site, and that any potential customer who clicks on such Campaign Link shall be connected to the Advertiser’s online store;
    5. any advertising material(s) used by Affiliate (other than the materials and content provided by Company) shall be at Affiliate’s own cost and expense;
    6. Affiliate shall be solely responsible for maintaining and updating Affiliate’s Site;
    7. Affiliate will be solely responsible for covering any costs or expenses associated with any advertising materials that they choose to use (other than what is provided by the Company). This includes the cost of creating, hosting, modifying and improving the Affiliate’s website, costs for search engine placement and other online marketing, inserting the Advertiser Campaign Link into the Affiliate’s Site, offline marketing, postage and any other associated costs.
    8. Affiliate shall be solely liable and responsible for Affiliate’s use of the Affiliate Network, Platform and Services;
    9. Affiliate shall provide Company with regular updates on the performance of their activities as detailed in these Terms, including the traffic/leads generated, completed sales, and revenue earned. These reports shall be established and agreed upon by both Parties.
    10. Affiliate shall use and implement reasonable tracking mechanisms in order to permit Company to accurately track converted traffic/leads;
    11. Affiliate shall not engage in any illegal activities, including but not limited to spamming, unsolicited emails, or any other illegal activities;
    12. Affiliate shall not engage in any activities that may be deemed to be misleading, confusing, or deceptive to potential customers;
    13. Affiliate shall not engage in any activities that may be deemed to be in conflict of interest with Advertiser’s business and/or Company’s business;
    14. Affiliate shall comply with all applicable laws and regulations, including consumer protection and unfair trading regulations and shall not engage in any fraudulent activities, including but not limited to cookie stuffing and link interception.
    15. Affiliate shall adhere to the Company’s Code of Conduct for Affiliates and accept that compliance will be monitored on a periodic or continual basis.
  2. Affiliate acknowledges that Company functions as a third-party intermediary and is not involved in any activities, content, transactions, service agreements and related disputes between Affiliate and Advertiser. It is the responsibility of Affiliate to take full responsibility for any action, inaction or business decision made by them when providing services to Advertiser. Company is not liable for any of these decisions, absolving them of any responsibility in the matter.
  3. Restrictions. Affiliate shall not:
    1. represent Affiliate as an agent or representative of Company or Advertiser for any purpose;
    2. create or design Affiliate’s Site or any other website that Affiliate, operates or controls, which resembles Company’s Platform or Advertiser’s website, nor design Affiliate’s Site in a manner which leads prospective or existing customers to believe that Affiliate is the advertiser; 
    3. take any action which might be deemed confusing, misleading or deceptive to potential customers being directed to Advertiser’s online store;
    4. breach any laws, including but not limited to privacy, intellectual property and spam laws;
    5. participate in or give effect to any form of cookie stuffing and domain forwarding (i.e. use a domain and set such domain to automatically forward to Company’s Platform using Affiliate’s link;
    6. engage in any conduct that does not meet Company’s standards of ‘fair play’ at Company’s discretion including but not limited to attempted, apparent or actual fraud, generating non-genuine transactions, creating non-genuine customers, confusing customers, or providing a link on Affiliate’s Site which might mislead potential customers;
    7. license, sublicense, sell, resell, rent, lease, transfer, distribute or otherwise similarly exploit the Services or Company’s Affiliate Network, 
    8. copy, create a derivative work of reverse engineer, reverse assemble, disassemble, or decompile the Services, or any part thereof or otherwise attempt to discover any source code of any software provided by Company to Affiliate, or modify the Services;
    9. interfere with any tracking code used to track actual sales, with the intention of manipulating the Company’s or Advertiser’s tracking system to track more sale transactions than the actual sales; and
    10. create a service offering (a) similar to or based on Company’s Services, and (b) competing with such Services provided by Company to Affiliate hereunder.
  4. Company’s Responsibilities. Subject to the terms and conditions of these Terms, Company agrees to provide Affiliate with access to the Services and participation in the Affiliate Network in accordance with the terms and conditions of these Terms and the applicable Insertion Order. Company reserves the right to deny Affiliate access to the Affiliate Network and Services at any time (a) if Company deems, in its sole discretion, that Affiliate fails to comply with these Terms, any applicable law, or (b) in order to protect Company’s rights, property, and interests.
  5. Each Party undertakes to not (i) take any action that will or is reasonably likely to have a material negative impact on the reputation and/or goodwill of the other Party; and (ii) use the other Party’s proprietary materials in any manner that is disparaging, misleading, obscene or that portrays the Party in a negative light.

COMMISSION, INTERMEDIARY FEE AND TAXES

  1. Commission. In consideration of the Services provided by Company to Affiliate, and in accordance with the terms and conditions of these Terms, Company agrees to pay Affiliate a commission fee (“Commission”) in accordance with a cost per action marketing and pricing basis whereby the Affiliate (via the Company) shall only be entitled to Commission if both (i) a customer/lead is directed by the Affiliate (participating in Company’s Affiliate Network) to Advertiser’s digital products and online store; and (ii) a desired transaction is completed as further described under the applicable Insertion Order (“Cost Per Action”).
  2. Unless otherwise agreed by the Parties in writing, the Commission shall be paid by Company to Affiliate on a monthly basis, via bank transfer and within fifteen (15) calendar days from the date of Affiliate’s invoice or as agreed by the Parties. Affiliates acknowledge that Company shall not make payment of the Commission to Affiliate if the total Commission due to Affiliate is not at least 500$. Amounts below 500$ will accrue to Affiliate’s account and payment will be made by Company to Affiliate for the month when Affiliate’s total Commissions achieves the minimum 500$. Company reserves the right to amend the minimum Commission payment amount at any time, in its sole discretion.
  3. Company will pay Affiliate the Commission only upon collection by Company of the applicable amounts from Advertiser. Affiliate acknowledges and agrees that in the event, Advertiser does not pay Company the applicable fees on time, Company may in its sole discretion, immediately (and temporarily) suspend the provision of the Services without incurring any liability towards Affiliate.
  4. Affiliate acknowledges and agrees that all Cost Per Action conversions, invoiced by Affiliate to Company shall meet the eligibility requirements stated in section 6.7, and shall if accepted by Company, be final. For the avoidance of doubt, any Cost Per Action conversions which are declined/not accepted by Company, in its sole discretion, shall not be included in the calculation of Affiliate’s Commission.
  5. Commissions will only be paid for conversions which are tracked through Company’s online tracking system and indicates Affiliate’s Site as the source. 
  6. Eligibility. To be eligible for a Commission, Affiliate agrees that the following must occur:
    1. the traffic/lead from Affiliate’s Site must be accepted and be valid in accordance with Section h) below;
    2. the desired transaction, as described under the applicable Insertion Order must have occurred;
    3. the customer is a first time user to Advertiser and has not purchased any previous products and/or services from Advertiser; and
    4. all transactions must occur on Advertiser’s online store.
  7. Affiliate is NOT eligible to receive Commission or any other compensation from Company if:
    1. such Compensation is disallowed or limited by local laws or regulations or the laws or regulations of Affiliate’s jurisdiction; or
    2. the Commission payment has been obtained by fraudulent means, misuse of the Campaign Link, in violation of any Affiliate Network policies that Company makes available to Affiliate, and any misuse deemed by Company to be a breach of the terms and conditions of these terms and/or Insertion Order. Company reserves the right to discontinue Commission payments to Affiliate should any of the eligibility criteria set forth in this Section fail to be met by Affiliate at any time during the Term (defined below) of these Terms.
  8. Acceptance and Validity. Affiliate will only be eligible for a Commission payment for any customer transactions that are derived from Affiliate’s Site and generated by the Campaign Link made available to Affiliate and accepted by Company. Company may choose not to accept any traffic/lead from Affiliate’s Site, in Company’s reasonable discretion. Furthermore, any traffic/lead derived from Affiliate’s Site shall not be considered valid if such traffic/lead is after the expiry or termination of these Terms and/or applicable Insertion Order.
  9. Taxes. Except as otherwise provided in these Terms, Affiliate shall hold Company harmless from and against any and all third party (Government) claims to collect any and all taxes (including interest and penalties on any such amounts, but other than Company’s corporate income and similar taxes), payments, or fees required to be paid by Affiliate to any third party (Government) for the purchase of the Services. Affiliate shall be solely responsible to bear, remit, and pay any and all taxes, which shall include but not be limited to sales, use, value-added, consumption, excise, gross receipts or other similar taxes.

ANTI-SPAM POLICY

  1. Company reiterates the prohibition of use of unsolicited commercial email (UCE) or spam campaigns. Company maintains a zero-tolerance policy against spam, be it direct, a third party or any affiliate of Affiliate or similar agent acting on the Affiliate’s behalf. As such, Company reserves the right to terminate Affiliate’s Account, if Company determines that Affiliate has breached Company’s anti-spam policy or any part thereof, without notice, liability or compensation to Affiliate.
  2. Should Affiliate be involved in any unsolicited commercial email (UCE) or spam campaign(s) (including but not limited to flooding newsgroups, distributing messages to customers who do not want such information or any other abuse contravening unsolicited commercial email (UCE) legislation), Company shall close Affiliate’s Account; terminate these Terms; and all pertinent information will be provided to any investigating authorities or anti-Spam organisations. 

REPRESENTATIONS, WARRANTIES & DISCLAIMERS

  1. Mutual Representations. Each Party represents and warrants to the other Party that: (i) such Party is a business duly incorporated, validly existing, and in good standing under the laws of its jurisdiction of incorporation; (ii) such Party has all requisite corporate power, financial capacity, and authority to execute, deliver, and perform its obligations under these Terms; (iii) the execution, delivery, and performance of these Terms constitutes the legal, valid, and binding agreement of such Party; and (v) no consent, approval or withholding of objection is required from any entity, including any governmental authority, with respect to such Party’s entering into these Terms.
  2. Affiliate represents and warrants that:
    1. Affiliate will comply with the terms and conditions of these Terms, all applicable laws and regulations, and any policies related to the provision of the services to Advertiser; 
    2. Affiliate will not make any unauthorized, false, misleading, or illegal statements in connection with these Terms or regarding the Affiliate Network and Services and will not make any representation or warranty that is inconsistent with these Terms;
    3. Affiliate has obtained and will maintain all licenses, permits and approvals and will be responsible for satisfying all formalities as may be required to (a) enter into these Terms, (b) perform Affiliate’s obligations in accordance with these Terms, and (c) comply with applicable laws, rules and regulations; 
    4. the execution and delivery of these Terms, and the performance by Affiliate of Affiliate’s obligations hereunder, will not constitute a breach or default of or otherwise violate any agreement to which Affiliate or any of its affiliates (if applicable) are a party, or violate any rights of any third parties arising from those agreements, including without limitation any rights related to exclusivity; and 
    5. Affiliate and its directors, officers, employees and agents have not, and will not offer, pay, promise or authorize the payment, directly or indirectly through any other person or entity, of any monies or anything of value for the purpose of inducing or rewarding any favorable action or influencing any act or decision in connection with the provision of the services to Advertiser.
  3. Company warrants that Company will perform the Services (i) in a diligent and highly professional manner, and (ii) in accordance with applicable law. Company will obtain all required governmental and third-party licenses, approvals, and permits appropriate for the provision of Services.
  4. Disclaimers. Unless otherwise provided under these Terms, the Services and Affiliate Network shall be provided by Company to Affiliate on an “as is,” and “as available” basis, with all faults, defects, bugs, and errors.
  5. COMPANY HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH REGARD TO AFFILIATE’S ACCESS AND USE OF THE AFFILIATE NETWORK AND SERVICES, INCLUDING ALL WARRANTIES AND CONDITIONS OF MERCHANTABILITY, WHETHER EXPRESS, IMPLIED OR STATUTORY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT OR INTEGRATION.  
  6. COMPANY MAKES NO WARRANTY THAT (I) THE SERVICES WILL MEET AFFILIATE’S REQUIREMENTS OR EXPECTATIONS, (II) AFFILIATE’S ACCESS TO OR USE OF THE AFFILIATE NETWORK AND SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, OR (III) ANY DEFECTS IN THE AFFILIATE NETWORK AND/OR SERVICES WILL BE CORRECTED.
  7. COMPANY DOES NOT WARRANT OR GUARANTEE THAT ANY SUCCESSFUL COMMERCIAL RESULTS OR PROFITS WILL BE OBTAINED BY AFFILIATE AS A RESULT OF ACCESSING/USING THE AFFILIATE NETWORK AND SERVICES. AS SUCH, COMPANY WILL NOT BE LIABLE FOR ANY FAILURE, OR ANY LOSS OR DAMAGES INCURRED/SUSTAINED BY AFFILIATE, AS REGARDS TO AFFILIATE’S USE OR INABILITY TO USE THE AFFILIATE NETWORK AND SERVICES.  

CONFIDENTIALITY AND NON-COMPETE

  1. Confidential Information. Each Party acknowledges and agrees that all business and technical information provided to it by the other Party pursuant to these Terms constitutes confidential and/or proprietary information of the other Party (“Confidential Information”). Confidential Information shall include (a) each disclosing Party’s oral, written or recorded confidential and/or proprietary information about or related to the disclosing Party or its business; (b) the terms and conditions of these Terms (c) any information or materials a Party provides to the other.
  2. Notwithstanding Section 8)8)a), Confidential Information does not include information that (i) is or becomes publicly available without breach of these Terms; (ii) is rightfully received from a third party under no obligation of confidentiality who did not acquire or disclose such information through a wrongful or tortious act; or (iii) can be shown by documentation to have been developed by the receiving Party without reference to any Confidential Information. The burden of proof with respect to establishing that any of the foregoing exceptions applies is on the receiving Party. 
  3. Use of Confidential Information. Each Party represents and warrants to the other Party that it shall not use the other Party’s Confidential Information for any non-expressly authorized purpose, or disclose such Confidential Information to any third party except for attorneys, accountants, auditors, and/or the third party contractors, provided that such third parties have reason to know such Confidential Information and are bound by confidentiality, non-disclosure and non-use obligations (which shall not be waived) at least as protective as the obligations provided under this Section 7). 
  4. Furthermore, Confidential Information shall not be disclosed by each Party, unless such disclosure is:
    1. necessary in order for each Party to perform its obligations or enforce its rights under these Terms or as required by law, 
    2. to the extent a Party obtains prior written approval from the other Party, and/or 
    3. to the extent a Party is legally compelled to disclose such Confidential Information by the valid order of a court of competent jurisdiction. Under such circumstances a Party, shall (a) notify the other Party as promptly as practicable prior to making any disclosure, and (b) endeavour to protect such Confidential Information from unnecessary disclosure.
  5. Each Party shall take all reasonable measures to protect the secrecy of and avoid disclosure of Confidential Information, which measures shall be no less than reasonable care and shall include all of those measures that the receiving Party uses to protect its own Confidential Information. For the avoidance of doubt, each Party shall be responsible to the other Party for the actions or omissions of its employees, attorneys, accountants, auditors and/or third party contractors if such actions or omissions result in a breach of this Section 8).
  6. Upon written request of a Party or upon the termination of these Terms, each Party shall return and/or destroy all the other Party’s Confidential Information, and any copies thereof, in any medium or format which are in such Party’s possession or control.
  7. The provisions of this Section 8 shall continue indefinitely, notwithstanding the termination of these Terms for any reason.
  8. Non-Compete. During the term of these Terms and for a period of twelve (12) months following the termination or expiration of these Terms, Affiliate agrees not to directly or indirectly engage in or solicit any business activity that is competitive with the Services or the Company’s Affiliate Network.

COMPANY’S INTELLECTUAL PROPERTY

  1. Except as allowed herein, affiliate shall not have permission to (a) use company’s trademark, name, or any of company’s other intellectual property, including without limitation, the advertiser’s marketing content and campaign data (collectively, “company’s trademark(s)”) (or any variants or misspellings thereof or other phrases similar to any of the above) without company’s express prior written consent; (b) use company’s trademarks in a domain or website name, in any bids for keywords, in any search engine advertising (paid or otherwise), in any metatags, google adwords (or similar programs at other search engines), advertisements, search terms, code, or in any other manner; (c) act in any way that causes or creates or could cause or create any confusion with regards to the use of company’s trademarks on the internet or in any search engine advertising. Affiliate’s use of company’s trademarks in any way other than as expressly permitted in these terms  shall be considered illegal infringement of company’s intellectual property rights (defined below), and may subject affiliate to claims for damages (including potential treble damages for knowing or intentional infringement), and the obligation to pay company’s legal fees and costs in connection with any action or proceeding in which company seeks to enforce company’s rights under these terms  or with respect to any of company’s intellectual property rights (defined below).
  2. Company is and shall remain the sole and exclusive owner of all Intellectual Property Rights in/to the Services. Other than those purposes expressly stated/authorized under these Terms, Affiliate acknowledges and agrees to not use Company’s Affiliate Network and Services for any non-expressly authorized/stated purposes. Nothing in these Terms shall be construed as granting to Affiliate any right, entitlement, licence, patent, copyright, design licence or any other Intellectual Property Rights which may now or hereafter exist. Furthermore, Affiliate acknowledges that nothing in these Terms shall be deemed to be a waiver, transfer or entitlement to any such Intellectual Property Rights by Company to Affiliate.
  3. Affiliate shall be the sole and exclusive owner of all Affiliate’s intellectual property rights in Affiliate’s marketing content, and Affiliate’s Site. Company may not use any of Affiliate’s intellectual property rights for any other purpose, other than mentioned under these Terms and not without Affiliate’s prior written consent.

INDEMNIFICATION

  1. Each Party agrees at all times to indemnify, defend, and hold harmless the other Party and its (group) affiliates, and each of their respective shareholders, directors, officers, employees, agents and representatives (“Indemnified Parties”), from and against any and all third party claims, actions, judgments, damages, liabilities, costs, and expenses, including reasonable attorneys’ fees and costs, arising out of, related to or resulting from any breach or alleged breach of these Terms by the indemnifying Party.
  2. Company shall additionally indemnify and hold harmless Affiliate and its Indemnified Parties from and against any third-party claim (i) resulting from the Services and Affiliate Network provided by Company; and/or (ii) arising from the Services violating or infringing upon any applicable law or right of any third party (including any copyright, trademark, or patent right).

SUB-AFFILIATES

  1. Use of Sub-Affiliates. Subject to the terms and conditions of these Terms and the prior written approval of the Company, Affiliate may engage third-party sub-affiliates (“Sub-Affiliates”) to promote and market Advertiser’s Campaign Link using Advertiser’s Marketing Content on their respective websites/platforms/media. Affiliate shall ensure that each Sub-Affiliate agrees to and complies with these Terms and any additional terms and conditions imposed by the Company or Advertiser with respect to Sub-Affiliates.
  2. Affiliate’s Responsibility. Affiliate shall be fully responsible for the acts, omissions, and conduct of its Sub-Affiliates and shall ensure that each Sub-Affiliate complies with all applicable laws, regulations, and these Terms. Any breach of these Terms or applicable laws by a Sub-Affiliate shall be deemed a breach by the Affiliate, and the Company shall have the right to take any action against the Affiliate as a result of such breach, including, without limitation, termination of these Terms.
  3. Reporting and Monitoring. Affiliate shall maintain accurate records and provide reports to the Company, as reasonably requested by the Company, regarding the activities, performance, and compensation of its Sub-Affiliates. Affiliate shall also actively monitor the activities of its Sub-Affiliates to ensure compliance with these Terms and promptly address any non-compliance.
  4. Termination of Sub-Affiliate Relationship. The Company reserves the right, in its sole discretion, to require Affiliate to immediately terminate its relationship with any Sub-Affiliate that the Company deems, in its sole discretion, to be in violation of these Terms, applicable laws, or harmful to the reputation or interests of the Company or Advertiser. Affiliate shall promptly comply with any such request by the Company.
  5. Sub-Affiliate Compensation. Affiliate shall be solely responsible for compensating its Sub-Affiliates and shall indemnify, defend, and hold harmless the Company and Advertiser from and against any claims, liabilities, damages, or expenses arising out of or related to the compensation or conduct of the Sub-Affiliates.

LIMITATION OF LIABILITY

  1. EITHER PARTY SHALL IN NO EVENT BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL LOSS OR DAMAGE OR FOR ANY LOST PROFITS, LOST SAVINGS OR LOSS OF REVENUES SUFFERED BY THE OTHER PARTY ARISING FROM OR IN ANY WAY CONNECTED WITH (I) THESE TERMS; (II) THE PERFORMANCE BY COMPANY OF THE SERVICES; AND/OR (III) THE AFFILIATE NETWORK.
  2. COMPANY’S TOTAL LIABILITY TO AFFILIATE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT OR OTHERWISE, WILL NOT EXCEED 10 000 DOLLARS AND IS IN LIEU OF AND EXCLUDE ALL OTHER CONDITIONS AND WARRANTIES IMPLIED BY STATUTE LAW OR OTHERWISE.

TERM AND TERMINATION

  1. The term of these Terms shall commence on the Effective Date and shall continue unless terminated by either Party in accordance with this Section (the “Term”).
  2. Termination for Convenience. These Terms may be terminated by either Party by providing thirty (30) calendar days written notice to the other Party.
  3. Termination for Cause. Either Party may terminate these Terms in the event of a material breach by the other Party if the breaching Party has not cured/remedied such breach within thirty (30) calendar days of receiving a written notice from the other Party describing such material breach. If the breach occurred on the side of Affiliate and consists of severe violation of the Terms of this agreement, Company holds the right to terminate the agreement with a 48-hour written notice. 
  4. Except as expressly provided herein, upon the termination of these Terms: (a) all Company’s payment obligations shall cease other than those incurred prior to such termination; (b) all rights and licenses granted hereunder shall terminate immediately; (c) each Party shall return to the other Party any property belonging to and/or received from the other Party and/or destroy the other Party’s Confidential Information; (d) any applicable Insertion Order shall terminate unless agreed otherwise by the Parties; and (e) Company shall immediately cease the provision of the Services.

NOTICE

  1. Any notice, consent or other communication required or permitted under these Terms shall be written in English and shall be deemed given when (a) delivered personally; (b) sent by confirmed facsimile transmission; or (c) sent by commercial courier with written verification of receipt returned to the sender. Notice, consent or other communications (but not service of process) may also be given by e-mail. Rejection or other refusals to accept or the inability to deliver because of changed address or facsimile number of which no notice was given shall be deemed to constitute receipt of the notice, consent or communication sent. Names, addresses and facsimile numbers for notices (unless and until written notice of other names, addresses and facsimile numbers are provided by either or both parties) are provided below.

FORCE MAJEURE

  1. Neither Party shall be liable in the event that a Party’s performance of these Terms is prevented, or rendered so difficult or expensive as to be commercially impracticable, by reason of an Act of God, epidemic, pandemic, labor dispute, unavailability of transportation, governmental restrictions or actions, war (declared or undeclared) or other hostilities, or by any other event, condition or cause which is not foreseeable on the Effective Date and is beyond the reasonable control of the Party. In the event of non-performance or delay in performance attributable to any such causes, the period allowed for performance of the applicable obligation under these Terms will be extended for a period equal to the period of the delay. However, the Party so delayed shall use its best efforts, without obligation to expend substantial amounts not otherwise required under these Terms, to remove or overcome the cause of delay. In the event that the performance of a Party is delayed for more than six (6) months, the other Party shall have the right, which shall be exercisable for so long as the cause of such delay shall continue to exist, to terminate these Terms without liability for such termination.

NO AGENCY, PARTNERSHIP, OR EMPLOYMENT RELATIONSHIPS

  1. Affiliate acknowledges that Company is merely a service provider. Accordingly, there is no employment, agency, joint venture, or partnership relationship between Advertiser and Company. The Parties are independent contractors.

SEVERABILITY

  1. In the event that any provision of these Terms shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this remaining provisions of the Terms unenforceable or invalid, and, in such event, such remaining provisions shall be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decision.

ASSIGNMENT

  1. These Terms shall not be assigned by either Party without the prior written permission of the other; provided, however, either Party may assign its rights and obligations hereunder without the prior written permission of the other Party to any entity acquiring all, or substantially all, of the assets or shares of that Party. Notwithstanding the above, these Terms shall be binding upon any permitted successors and assigns of either Party.

ENTIRE AGREEMENT

  1. These Terms and the applicable Insertion Order(s) contains the full and entire agreement between the Parties with respect to the subject matter hereof. It supersedes all prior negotiations, representations and proposals, written or otherwise, relating to its subject matter.

GOVERNING LAW & JURISDICTION

  1. In the event of any disagreement between the Parties with respect to any aspect of these Terms, the Parties agree to discuss in good faith to reach an amicable resolution prior to starting any litigation/legal proceedings against each other.
  2. These Terms shall be construed and enforced in accordance with the applicable laws of United Arab Emirates.
  3. The Court of First Instance in Dubai shall have exclusive jurisdiction to settle any disputes which may arise out of or in connection with these Terms. Both Parties hereby submit to the jurisdiction of said Courts for purposes of any such suit or proceeding and waive any claim that any such forum is an inconvenient forum.

WHEREOF by signing up, Affiliate agrees to Company’s Terms & Conditions.

SUMMARY TL:TR

Services

Online marketing services provided by Company to Affiliate.

Non-Exclusivity

Company reserves the right to register other affiliates/individuals/entities on the Affiliate Network.

Commissions

Fee earned by Affiliate as specified in the Insertion Order.

Marketing Content

Only utilize Advertiser’s Marketing Content for the purpose of promoting the Advertiser’s Campaign Link.

Indemnification

Agrees to indemnify and defend Company from any claims, damages, losses, liabilities, costs and expenses that may result from Advertiser’s Marketing Content and Campaign Link.

Campaign Link Restrictions

Strictly prohibits the transmission of interstitials, Parasiteware, Parasitic Marketing, shopping assistance applications, toolbar Installations and/or add-ons, shopping wallets, or any deceptive pop-ups and/or pop-unders to customers.

Fraudulent Transactions

Company may reject payment of Commission, terminate these Terms, and/or require Affiliate to return/reimburse any Commission derived from fraudulenttransaction/activity.

Platform Unsuitability

Company may cancel the Services should it determine Affiliate’s Site is unsuitable or inappropriate.

Registration

Company may, in its sole discretion, reject the registration of Affiliate’s Account for any or no reason.

Registration Information

Affiliate must maintain and promptly update the registration information.

Login Credentials

Affiliate must keep login credentials confidential and notify Company of any unauthorized use.

Responsibilities

Affiliate must showcase the Campaign Link properly and attract fresh, valid customers.

Fair Play

Affiliate must adhere to Company’s standards of ‘fair play’ and avoid any fraudulent activities.

Mutual Representations

Each Party represents and warrants that it has all requisite corporate power, financial capacity, and authority to execute, deliver, and perform its obligations under these Terms.

Affiliate Representations

Affiliate will comply with the terms and conditions of these Terms, all applicable laws and regulations, and any policies related to the provision of the services to Advertiser.

Disclaimers

The Services and Affiliate Network are provided on an ‘as is’ and “as available” basis, with all faults, defects, bugs, and errors.

Confidentiality

Each Party shall not use the other Party’s Confidential Information for any non-expressly authorized purpose, or disclose such Confidential Information to any third party.

Non-Compete

Affiliate agrees not to engage in competitive business activity for 12 months post-termination.

Limitation of Liability

Neither Party shall be liable for any indirect, special, exemplary, incidental or consequential loss.

Non-Exclusive Appointment

Affiliate’s participation in Company’s Affiliate Network and use of the Services is subject to Affiliate’s agreement to and execution of these Terms.

Total Liability

Company’s total liability to Affiliate is limited to $10,000.

Term and Termination

These Terms may be terminated by either Party by providing thirty (30) calendar days written notice to the other Party.

Entire Agreement

These Terms and the applicable Insertion Order(s) contains the full and entire agreement between the Parties with respect to the subject matter hereof.

Governing Law & Jurisdiction

These Terms shall be construed and enforced in accordance with the laws of UAE, and the Court of First Instance in UAE shall have exclusive jurisdiction to settle any disputes which may arise out of or in connection with these Terms.