ADVERTISER TERMS AND CONDITIONS
These Advertiser terms and conditions (“Terms”) and any signed Insertion Order (“IO”) shall govern the relationship between you (“you” or “Advertiser”) and us, Affilimedia Global Ltd., a company incorporated in Belize, with company number 165227, whose registered address is at Suite 102, Ground Floor, Black Building, Corner Eyre & Hutson Streets, Belize City (“Company”, “We”, “Our” or “Us”).
The definitions below shall have the following meanings in the IO and these Terms:
“Active Customer” means any Customer that has entered into a transaction with the Advertiser through the Website as a result of a Campaign;
“Advertiser Fee” means the payments that Company is entitled to from the Advertiser for each Campaign set out in the IO;
“Affiliate” means Company’s third party online publishers who refer potential Customers to the Website via the Link, or through other approved mediums, in accordance with the Campaign details set out in any IO;
“Applicable Regulations” means any rules of a relevant regulatory authority or investment exchange, and any other applicable laws, rules and regulations as in force from time to time and to which the IO, these Terms and /or the Campaign are subject;
“Campaign” means the type of potential Customer lead generation set out in the IO, including the start and end date for each campaign, the Advertiser Fee structure (i.e. CPA or CPL), and the Territory (as applicable);
“CPA” means Cost per Acquisition, the number of Active Customers referred by the Company, through its Affiliates, to the Website during the Term of any IO through one of the Affiliate’s landing pages using the Link or through other mediums that are approved by the Advertiser in writing, such as applications, advertisements, trade shows, conferences, direct mailings and call lists;
“CPL” means Cost Per Lead, the number of Customers referred by the Company, through its Affiliates, to the Website during the Term through one of the Affiliate’s landing pages using the Link or through other mediums that are approved by the Advertiser in writing, such as applications, advertisements and direct mailings;
“Customer” means an entity or individual that: (i) has been directed to the Website and/or Funnel by the Company or through its Affiliates, via the Link and identified by the Tracker ID; and (ii) is registered on the Website and/or Funnel and was not previously registered on the Website and/or Funnel;
“Funnel” means a standalone, Customer oriented registration landing page whose sole function is to register Leads for the Website;
“Harmful Content” means content which is unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically or otherwise objectionable including, without limitation, content that: (i) is aimed at minors; (ii) displays sexual, pornographic or obscene acts; (iii) contains graphic violence; (iv) contains discriminatory content (whether based on race, sex, religion, nationality, ethnicity, sexual preference, physical disability, gender or otherwise); and (v) violates the Intellectual Property Rights of any third party (including any material copied from third parties without their permission);
“Intellectual Property Rights” means pending or granted patents, trademarks, service marks, trade names, registered and unregistered designs, trade or business names, copyright (including, but not limited to, rights in software), and any applications for any of the aforesaid, and further includes trade secrets, databases, know-how, rights in confidential information and any other intellectual property rights whatsoever irrespective of whether such intellectual property rights have been registered or not, which may subsist in any part of the world;
“Link” means a dedicated hyperlink to the Website or Funnel that will be provided by the Advertiser to the Company to use for the Campaign during the Term of any IO;
“Report” shall mean reports prepared by the Company listing the Advertiser’s activity and the commission generated by the IO, in the form, content, and frequency of which may, at the Company’s sole discretion, vary from time to time;
“Tracker(s) ID” shall mean a tracking tool that submits tracking records to assist the Company, to track the activity of the Affiliate(s) in order to identify the traffic Advertiser and record its activities through the Link;
“Website” shall mean any other website or application operated by the Advertiser or any of its related entities and notified to the Company in writing during the Term of any IO; and
“Territory” means any location in which the Advertiser instructs the Company and the Affiliates to market and promote Advertiser’s services to potential Customers, as set out in the Campaign details of the IO.
2. Online Publishing Services
During the Term of any IO, the Company, through its Affiliates or by itself will provide online marketing and advertising promotions to refer potential Customers to the Website via the Link, as set out in the Campaign details of the IO.
Advertiser Obligations, Representations and Warranties
The Advertiser will be solely responsible for the content of the Website, including ensuring that the marketing materials for any Campaign: (i) are not libelous, obscene, sexually explicit, violent or otherwise illegal; (ii) do not provide unauthorized access to the Intellectual Property Rights of third parties; (iii) do not otherwise actually or potentially infringe any rights of the Company, its Affiliates or any other third party; or (iv) do not contain any Harmful Content.
The Advertiser will be solely responsible for ensuring that all the content on the Website, and the marketing materials for any Campaign is/are either owned, or licensed by the Advertiser during the Term of any IO.
The Advertiser agrees to ensure that any marketing and promotional materials provided for any Campaign, and the operation of the Website will comply with all Applicable Regulations, and codes of practice in the jurisdiction that it is operating from, and any other jurisdiction that a Customer operates within, including blocking Customers from outside the Territory (if applicable) from entering the Website through the Link, or receiving any services whatsoever.
In the event the Advertiser provides its content or advertises any Campaign to a potential Customer outside the Territory specified in any IO, or without an applicable license to offer such advertising content through a Campaign outside of such Territory, the Advertiser shall bear full responsibility under any Applicable Regulations, and the Company and its Affiliates shall not be responsible towards the potential Customer in any way, and shall have the right to terminate such IO and these Terms effective immediately.
The Advertiser represents and warrants to the Company and its Affiliates that it holds all regulatory licenses and approvals required for the provision and offering of its services and/or products to Customers, and that any such offering or provision shall be made in compliance with all Applicable Regulations. Advertiser further represents and warrants that it had taken all necessary steps to ascertain the legality and compliance of its offering and provision of its products and/or services in each and every jurisdiction within the Territory. Advertiser acknowledges that it shall bear full responsibility for any breach of Applicable Regulations deemed by any competent authority and undertakes to indemnify the Company and/or the Affiliates for any legal claim or action brought against them in connection with the Campaign.
You accept sole responsibility for determining whether the Campaign activity under any IO or these Terms is legal under any Applicable Regulations that you are subject to during the Term of any IO.
You represent and warrant that (i) all information supplied by you or anyone acting on your behalf to the Company and its Affiliates (including, without limitation, information relating to any Customer) is true, complete and accurate in all material respects and that you will advise us promptly of any material change to information previously provided by you; and (ii) you will act in accordance with the obligations, representations and warranties of any IO and these Terms, and will not violate or infringe the rights of any third parties, including Intellectual Property Rights and data protection rights, as applicable.
The Advertiser shall pay the Advertiser Fee set out in the Insertion Order in regards to each Campaign agreed between the Advertiser and the Company.
The Company shall track the activity of the Customers through the Tracker ID for the purpose of calculating the Advertiser Fee and this information will be provided to you by the Company. The Advertiser Fee shall be paid on a monthly basis pursuant to the information set forth in the Report, unless otherwise agreed in the IO. The Report and all its underlying figures, number amounts and statistics forming the basis of the Report will be the exclusive and conclusive reference point for calculating the Advertiser Fee, and you agree to be bound by such information as provided by the Company.
The Advertiser Fee will be payable in accordance with the IO upon the issuance of an invoice by the Company to you
Any Report and invoice issued by the Company shall be viewed as agreed to and accepted by you unless disputed within seven (7) days. Any dispute or request for clarification sought by you should be communicated to the Company in writing.
Unless otherwise explicitly stated in any IO, the Advertiser Fee shall be exclusive of any value added tax (VAT), or any simIntellectual Property Rights; Data Protection
The Advertiser is the sole and exclusive owner of all Intellectual Property Rights, including, without limitation, copyrights, in any marketing methods, Campaigns, slogans, techniques, data, trade names, trademarks, brand names, domain names, websites, graphics and designs used by the Advertiser in connection with the Link and Website (“Advertiser IP”). For the removal of any doubt, any copyrights, in any marketing methods, Campaigns, slogans, techniques, data, trade names, trademarks, brand names, domain names, websites, graphics and designs which was created by the Company for the purpose of running the Campaign shall be in the sole and exclusive ownership of the Company (“Company IP”).
All usage of the Advertiser IP or Company IP shall be in accordance with the IO and these Terms.
During the Term of any IO, the Advertiser grants the Company and its Affiliates a non-exclusive license to display the Links and use the Advertiser IP solely for the purpose of marketing and promoting the Website through the Campaign, and referring potential Customers to the Website through the Link, or through other approved mediums.
The Company is expressly allowed to sublicense the license granted under these Terms to its Affiliates, without prior notice to Advertiser, provided that any such Affiliate shall be bound by a written agreement with the Company to confidentiality and non-use limitations similar, but no less stringent than to those that apply to the Company hereunder.
The license granted under these Terms to use the Advertiser IP shall terminate upon termination of all IOs signed between the Advertiser and the Company.
To the extent any data protection obligations apply to the Advertiser or the Company, each party will be individually responsible to comply with its respective data protection obligations that apply to such party under any applicable data protection and privacy legislation.
Term and Termination; Effect of Termination
These Terms come into effect on the Start Date of any IO and shall continue until the End Date of any IO, unless terminated in accordance with the provision below.
The Company may terminate any IO within forty-eight (48) hours upon written notice to the Advertiser.
Upon termination of any IO or these Terms, all rights granted under such IO or these Terms will immediately cease, and the Affiliate will remove all Links from its sites and third party online publishers.
Disclaimer; Limitation of Liability
THE COMPANY AND ITS AFFILIATES EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OF ANY OF THE COMPANY OR ITS AFFILIATES’ CAMPAIGN SERVICES PROVIDED IN ANY INSERTION ORDER OR UNDER THESE TERMS. THE ADVERTISER UNDERSTANDS AND AGREES THAT THE COMPANY OR ITS AFFILIATES’ CAMPAIGN SERVICES PROVIDED IN ANY INSERTION ORDER ARE BASED ON INTERNET AND COMMUNICATION NETWORKS AND RELY PARTLY ON THIRD PARTY SERVICES WHICH ARE NOT UNDER THE CONTROL OF THE COMPANY OR ITS AFFILIATES. THE COMPANY OR ITS AFFILIATES’ CAMPAIGN SERVICES MAY NOT BE FREE OF MALFUNCTIONS AND THE COMPANY SHALL NOT BE LIABLE IN ANY WAY WHATSOEVER FOR ANY SUCH EVENTS.
YOU ACKNOWLEDGE AND AGREE THAT TO THE EXTENT PERMITTED BY ANY APPLICABLE LAW, IN NO EVENT WILL THE COMPANY, ITS AFFILIATES, LICENSORS AND SERVICE PROVIDERS, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, JOINT VENTURERS, EMPLOYEES OR REPRESENTATIVES (COLLECTIVELY, “COMPANY REPRESENTATIVES”), BE LIABLE FOR ANY DAMAGES OR INJURY WHATSOEVER CAUSED BY OR RELATED TO THE USE OF THE CAMPAIGN SERVICES PROVIDED IN ANY INSERTION ORDER UNDER ANY CAUSE OF ACTION WHATSOEVER IN ANY JURISDICTION, INCLUDING, WITHOUT LIMITATION, ACTIONS FOR BREACH OF WARRANTY, BREACH OF CONTRACT OR TORT (INCLUDING NEGLIGENCE); AND THAT COMPANY OR COMPANY REPRESENTATIVES, SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING FOR LOSS OF PROFITS, GOODWILL OR DATA, IN ANY WAY WHATSOEVER ARISING OUT OF THE USE OF THE CAMPAIGN SERVICES PROVIDED IN ANY INSERTION ORDER. NOTWITHSTANDING ANYTHING SET OUT HEREIN, THE COMPANY’S TOTAL AGGREGATE LIABILITY SHALL NOT EXCEED THE ADVERTISER FEE PAID IN THE THREE (3) MONTHS PRECEDING ANY CLAIM.
The Advertiser agrees to indemnify, defend and hold harmless the Company, and the Company’s Representatives, with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys’ fees, to the extent that such action is based upon or arises out of: (i) Advertiser’s breach of any terms and conditions set out in any IO or in these Terms; (ii) Advertiser’s negligence or willful misconduct; (iii) any Advertiser obligation, representation or warranty set out in any IO or these Terms; (iv) any violation of real estate or securities regulations, directives, and laws in any jurisdiction; and (v) the Website.
The Company shall notify the Advertiser of any such claim and shall reasonably cooperate and assist the Advertiser in defending the claim. Notwithstanding, the Company reserves the right, at its own expense, to assume exclusive defense and control of any matter otherwise subject to indemnification by you and, in such case, you agree to cooperate with the Company in the defense of such matter
Entire Agreement. The IO and these Terms comprise the entire understanding and agreement between you and the Company as to the subject matter hereof, and supersede all prior discussions, agreements and understandings of any kind whatsoever between you and the Company.
Status of Parties. You and the Company are independent contractors, and any IO or these Terms do not create any partnership, trust arrangement, agency, joint enterprise, or fiduciary relationship between you and the Company, or any other form of relationship.
Undertakings. You are not authorized to undertake any obligations on behalf of the Company.
Assignment. You may not assign any IO or any rights granted under these Terms. The Company reserves the right to assign its rights without restriction, including without limitation to any Company affiliate or subsidiary, or to any successor in interest of any business associated with the Company.
Severability. If any provision of these Terms shall be declared by any court of competent jurisdiction to be illegal, void or unenforceable, all other provisions of these Terms shall not be affected and shall remain in full force and effect.
Survival. All provisions of these Terms that by their nature extend beyond the expiration or termination of these Terms, including without limitation sections pertaining to suspension or termination of these Terms, disputes with the Company, its Affiliates or the Customers, and the general provisions shall survive any expiration or termination of these Terms.
Force Majeure. The Company and its Affiliates shall not be liable for delays, failure in performance or interruption of service which results directly or indirectly from any cause or condition beyond its reasonable control, including, but not limited to, any delay or failure due to any act of God, act of civil or military authorities, act of terrorists, civil disturbance, war, strike or other labor dispute, fire, interruption in telecommunications or Internet services or network provider services, failure of equipment and/or software, other catastrophe or any other occurrence which is beyond the Company and its Affiliates’ reasonable control.
Prevailing Language. Any translation of any IO or these Terms is provided for your convenience only and in the event of a discrepancy between the translated version and the English version, the English version of any IO and these Terms shall prevail.
Governing Law; Jurisdiction. Any IO and these Terms shall be governed by, and interpreted in accordance with the laws of Cyprus and you irrevocably submit, for the benefit of the Company, to the exclusive jurisdiction of the courts of Cyprus to settle any disputes which may arise in connection with the creation, validity, effect, interpretation or performance of, or the legal relationships established by, any IO and these Terms, or otherwise arising in connection with any IO or these Terms.