Publisher Program Operating Agreement
This Publisher Program Operating Agreement (the "Agreement") is made and entered into by and between Advertiser ("us" or "we"), and Publisher ("you"), the party signing an application to become the Advertiser's Publisher. The terms and conditions contained in this Agreement apply to your participation with the Advertiser ("Publisher Program"). Each Publisher Program offer (an "Offer") may be for any offering by Advertiser or a third party (each such third party a "Client") and may link to a specific website for that particular Offer ("Program Website"). Furthermore, each Offer may have additional terms and conditions on pages within the Publisher Program and are incorporated as part of this Agreement. By signing the application or participating in the Offer, you expressly consent to all the terms and conditions of this Agreement.
1. Obligations of the Parties
Subject to our acceptance of you as a publisher and your continued compliance with the terms and conditions of this Agreement, Advertiser agrees as follows:
1. We will make available to you via the Publisher Program graphic and textual links to the Program Website and/or other creative materials (collectively, the "Links") which you may display on websites owned or controlled by you, in emails sent by you and clearly identified as coming from you and in online advertisements (collectively, "Media"). The Links will serve to identify you as a member of our Publisher Program and will establish a link from your Media to the Program Website.
2. We will pay Publisher for each Qualified Action (the "Commission"). A "Qualified Action" means an individual person who (i) accesses the Program Website via the Link, where the Link is the last link to the Program Website, (ii) is not a computer-generated user, such as a robot, spider, computer script or other automated, artificial or fraudulent method to appear like an individual, real live person, (iii) is not using pre-populated fields (iv) completes all of the information required for such action within the time period allowed by Advertiser and (v) is not later determined by Advertiser to be fraudulent, incomplete, unqualified or a duplicate.
3. We will pay you any Commissions earned monthly, provided that your account is currently greater than $100 (for Payoneer) and/or $500 (for Wise transfers). Accounts with a balance of less than $100 (for Payoneer) and/or $500 (for Wise transfers) will roll over to the next month and will continue to roll over monthly until $100 (for Payoneer) and/or $500 (for Wise transfers) is reached.
4. Publisher shall provide Advertiser with all the necessary information regarding Publisher's bank details in order for Advertiser to pay the Commissions.
5. Publisher shall send an invoice to Advertiser for all Commissions payable under this Agreement. Advertiser shall remit payment to Publisher based upon that invoice. All tracking of Links and determinations of Qualified Actions and Commissions shall be made by Advertiser at its sole discretion. In the event that the Publisher disputes in good faith any portion of an invoice, the Publisher must submit that dispute to Advertiser in writing and in sufficient detail within thirty (30) days of the reception date of the invoice. If Publisher does not dispute the invoice as set forth herein, then Publisher agrees that it irrevocably waives any claims based upon that invoice. In the event that the Publisher is also tracking Qualified Actions and the Publisher claims a discrepancy, the Publisher must provide Advertiser with Publisher's reports within three (3) days after the 30th day of the calendar month, and if Advertiser's and Publisher's reported statistics vary by more than 10% and Advertiser reasonably determines that Publisher has used generally accepted industry methods to track Qualified Actions, then Advertiser and Publisher agree to make a good faith effort to arrive at a reconciliation. If the parties are unable to arrive at a reconciliation, then Advertiser’s numbers shall govern.
The Publisher also agrees to:
i. Have sole responsibility for the development, operation, and maintenance of, and all content on or linked to, your Media.
ii. Ensure that all materials posted on your Media or otherwise used in connection with the Publisher Program (i) are not illegal, (ii) do not infringe upon the intellectual property or personal rights of any third party and (iii) do not contain or link to any material which is harmful, threatening, defamatory, obscene, sexually explicit, harassing, promotes violence, promotes discrimination (whether based on sex, religion, race, ethnicity, nationality, disability or age), contains profanity or otherwise contains materials that Advertiser informs you that it considers objectionable (collectively, "Objectionable Content").
iii. Not make any representations, warranties or other statements concerning Advertiser or Client or any of their respective products or services, except as expressly authorized herein.
iv. Make sure that your Media does not copy or resemble the look and feel of the Program Website or create the impression that your Media is endorsed by the Advertiser or Client or a part of the Program Website, without prior written permission from us.
v. Comply with all (i) obligations, requirements, and restrictions under this Agreement and (ii) laws, rules, and regulations as they relate to your business, your Media, or your use of the Links.
vi. Comply with the terms, conditions, guidelines, and policies of any third-party services used by Publisher in connection with the Publisher Program, including but not limited to, email providers, social networking services and ad networks.
vii. Always prominently post and make available to end-users, including prior to the collection of any personally identifiable information, a privacy policy in compliance with all applicable laws that clearly and thoroughly discloses all information collection, use and sharing practices, including providing for the collection of such personally identifiable information in connection with the Publisher Program and the provision of such personally identifiable information to Advertiser and Clients for use as intended by Advertiser and Clients.
viii. Always prominently post and make available to end-users any terms and conditions in connection with the Offer set forth by Advertiser or Client, or as required by applicable laws regarding such Offers.
ix. Make sure not to place Advertiser ads on any online auction platform (i.e., eBay, Amazon, etc).
2. Confidentiality
Except as otherwise provided in this Agreement or with the consent of the Advertiser, you agree that all information, including, without limitation, the terms of this Agreement, business and financial information, customer and vendor lists, and pricing and sales information, concerning us or any of our publishers provided by or on behalf of any of them shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by you for any purpose other than your participation in the Publisher Program, except and solely to the extent that any such information is generally known or available to the public through a source other than you. Publisher shall not use any information obtained from the Publisher Program to develop, enhance, or operate a service that competes with the Publisher Program, or assist another party to do the same.
3. Limited License & Intellectual Property
We grant you a nonexclusive, non-transferable, revocable right to use the Links and to access our website through the Links solely in accordance with the terms of this Agreement, for the sole purpose of identifying your Media as a participant in the Publisher Program and assisting in increasing sales through the Program Website.
You may not alter, modify, manipulate, or create derivative works of the Links or any Advertiser graphics, creative, copy or other materials owned by, or licensed to, Advertiser in any way. You are only entitled to use the Links to the extent that you are a member in good standing of the Publisher Program. We may revoke your license anytime by giving you written notice. Except as expressly stated herein, nothing in this Agreement is intended to grant you any rights to any of Advertiser's trademarks, service marks, copyrights, patents, or trade secrets. You agree that Advertiser may use any suggestion, comment, or recommendation you choose to provide to Advertiser without compensation. All rights not expressly granted in this Agreement are reserved by Advertiser.
4. Termination
This Agreement shall commence on the date of our approval of your Publisher Program application and shall continue thereafter until terminated as provided herein. You may terminate your participation in the Publisher Program at any time by removing all Links from your Media, deleting all copies of the Links. We may terminate your participation in one or more Offers or this Agreement at any time and for any reason which we deem appropriate with or without prior notice to you by disabling the Links or providing you with a written notice. Upon termination of your participation in one or more Offers or this Agreement for any reason, you will immediately cease all use of and delete all Links, plus all Advertiser or Client intellectual property, and will cease representing yourself as an Advertiser's or Client’s publisher for such one or more Offers. All rights to validly accrued payments, causes of action and any provisions, which by their terms are intended to survive termination, shall survive any termination.
5. Remedies
In addition to any other rights and remedies available to us under this Agreement Advertiser reserves the right to delete any actions submitted through your Links and withhold and freeze any unpaid Commissions or chargeback paid Commissions to your account if (i) Advertiser determines that you have violated this Agreement, (ii) Advertiser receives any complaints about your participation in the Publisher Program which Advertiser reasonably believes to violate this Agreement or (iii) any Qualified Action is later determined to have not met the requirements set forth in this Agreement or on the Advertiser Program. Such withholding or freezing of Commissions, or chargebacks for paid Commissions, shall be without regard as to whether or not such Commissions were earned as a result of such breach. In the event of a material breach of this Agreement, Advertiser reserves the right to disclose your identity and contact information to appropriate law enforcement or regulatory authorities or any third party that has been directly damaged by your actions.
6. Anti-Spam Policy
In addition to any other rights and remedies available to us under this Agreement, Advertiser reserves the right to delete any actions submitted through your if (i) Advertiser determines that you have violated this Agreement, (ii) Advertiser receives any complaints about your participation in the Publisher Program which Advertiser reasonably believes to violate this Agreement or (iii) any Qualified Action is later determined to have not met the requirements set forth in this Agreement or on the Publisher Program. In the event of a material breach of this Agreement, Advertiser reserves the right to disclose your identity and contact information to appropriate law enforcement or regulatory authorities or any third party that has been directly damaged by your actions.
7. Fraud
You are expressly prohibited from using any persons, means, devices or arrangements to commit fraud, violate any applicable law, interfere with other publishers, falsify information in connection with referrals through the Links or the generation of Commissions or exceed your permitted access to the Publisher Program. Such acts include, but are in no way limited to, using automated means to increase the number of clicks through the Links or completion of any required information, using spyware, using stealware, cookie-stuffing and other deceptive acts or click-fraud. The Advertiser shall make all determinations about fraudulent activity at its sole discretion.
8. Representations and Warranties
You hereby represent and warrant that this Agreement constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms and that you have the authority to enter into this Agreement. Subject to the other terms and conditions of this Agreement, Advertiser represents and warrants that it shall not knowingly violate any law, rule or regulation which is applicable to Advertiser's own business operations or Advertiser's proprietary products or services.
9. Modifications
In addition to any notice permitted to be given under this Agreement, we may modify any of the terms and conditions of this Agreement at any time by providing you with a notification by email. The changes will become effective ten (10) business days after such notice. If the modifications are unacceptable to you, you may terminate this Agreement without penalty solely on the account of such termination within such ten (10) business day period. Your continued participation in this Publisher Program ten (10) business days after a change notice has been posted will constitute your acceptance of such change. In addition, the Advertiser may change, suspend, or discontinue any aspect of an Offer or Link or remove, alter, or modify any tags, text, graphic or banner ad in connection with a Link. Publisher agrees to promptly implement any request from Advertiser to remove, alter or modify any Link, graphic or banner ad that is being used by Publisher as part of the Publisher Program.
10. Independent Investigation
You acknowledge that you have read this Agreement and agree to all its terms and conditions. You have independently evaluated the desirability of participating in the Publisher Program and each Offer and are not relying on any representation, guarantee or statement other than as set forth in this Agreement or on the Publisher Program.
11. Mutual Indemnification
Publisher hereby agrees to indemnify, defend and hold harmless Advertiser and Clients and their respective subsidiaries, publishers, partners and licensors, directors, officers, employees, owners and agents against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' fees and costs) based on (i) any failure or breach of this Agreement, including any representation, warranty, covenant, restriction or obligation made by Publisher herein, (ii) any misuse by Publisher, or by a party under the reasonable control of Publisher or obtaining access through Publisher, of the Links, Offers or Advertiser or Client intellectual property, or (iii) any claim related to your Media, including but not limited to, the content contained on such Media (except for the Links).
Advertiser hereby agrees to indemnify, defend, and hold harmless Publisher and its subsidiaries, publishers, partners, and their respective directors, officers, employees, owners, and agents against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' fees and costs) based on a claim that Advertiser is not authorized to provide you with the Links.
12. Disclaimers
THE PUBLISHER PROGRAM AND LINKS, AND THE PRODUCTS AND SERVICES PROVIDED IN CONNECTION THEREWITH, ARE PROVIDED TO THE PUBLISHER "AS IS". EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE ADVERTISER EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF THE COURSE OF DEALING, USAGE, OR TRADE. THE ADVERTISER DOES NOT WARRANT THAT THE PUBLISHER PROGRAM OR LINKS WILL MEET THE PUBLISHER'S SPECIFIC REQUIREMENTS OR THAT THE OPERATION OF THE PUBLISHER PROGRAM OR LINKS WILL BE COMPLETELY ERROR-FREE OR UNINTERRUPTED. ADVERTISER EXPRESSLY DISCLAIMS ANY LIABILITY FOR ANY ACT OR OMISSION OF A CLIENT OR THEIR PRODUCTS OR SERVICES. THE ADVERTISER DOES NOT GUARANTEE THAT THE PUBLISHER WILL EARN ANY SPECIFIC AMOUNT OF COMMISSIONS.
13. Governing Law & Miscellaneous
This Agreement contains the entire agreement between Advertiser and Publisher with respect to the subject matter hereof and supersedes all prior and/or contemporaneous agreements or understandings, written or oral. Publisher agrees that Advertiser shall not be subject to or bound by any Publisher insertion order or online terms and conditions that amend, conflict with, or supplement this Agreement, regardless of whether Advertiser "clicks through" or otherwise indicates its acceptance thereof. The Publisher may not assign all or any part of this Agreement without Advertiser's prior written consent. Advertiser may assign this Agreement at any time with notice to the Publisher. This Agreement will be binding on and will inure to the benefit of the legal representatives, successors, and valid assigns of the parties hereto. If any provision of this Agreement is held to be void, invalid or inoperative, the remaining provisions of this Agreement shall continue in effect and the invalid portion of any provision shall be deemed modified to the least degree necessary to remedy such invalidity while retaining the original intent of the parties. Each party to this Agreement is an independent contractor in relation to the other party with respect to all matters arising under this Agreement. Nothing herein shall be deemed to establish a partnership, joint venture, association, or employment relationship between the parties. No course of dealing nor any delay in exercising any rights hereunder shall operate as a waiver of any such rights. No waiver of any default or breach shall be deemed a continuing waiver or a waiver of any other breach or default.
The Terms of Use are governed by and construed in accordance with, the law of Ukraine. The Parties irrevocably agree with the exclusive jurisdiction of the Courts of Kyiv-City to settle any dispute or claim that arises out of or in connection with the validity, interpretation and enforcement of the Terms of Use or the access and/or use of the Website.
By signing this application to Publisher Program, you affirm and acknowledge that you have read this Agreement in its entirety and agree to be bound by all of its terms and conditions. If you do not wish to be bound by this Agreement, you should not sign the application to Publisher Program. If an individual is accessing this Agreement on behalf of a business entity, by doing so, such individual represents that they have the legal capacity and authority to bind such business entity to this Agreement.