Mixpartners Webmaster Affiliate Agreement
This Mixpartners Webmaster Affiliate Agreement (this “Agreement”) constitutes a binding agreement that governs your participation in the Webmaster Affiliate Program for the website Mixpartners and the services related thereto (the “Website”) Mixpartners (“us” or “we”). As used in this document “you” or “your” refers to you, any entity you represent, your or its representatives, successors, assigns and affiliates, and any of your or their devices. By agreeing to this Agreement you represent and warrant that you have authority to agree to this Agreement on behalf of yourself or the entity you represent. By agreeing to this Agreement, you also agree to the Terms and Use of Mixpartners, the terms and conditions of which are incorporated herein by this reference.1. Definitions
Capitalized terms used and not otherwise defined in this Agreement shall have the meaning assigned to it: - “Agreement” means this Affiliate Agreement and incorporated Program Rules, as amended from time to time. - “Affiliate Program” means the program which allows you to upload files on the Website and refer traffic and individuals to those files for which you may be paid a Commission pursuant to this Agreement. - “Commission” means an amount of money earned pursuant to this Agreement through downloads of files you upload to the Website, which may be paid out to you pursuant to this Agreement. - “Our Marks” means the logos, trade names, trademarks, service marks, trade dresses, domain names and other identifying material, which identify us and the Website. - “Promotional Materials” means the supporting and advertising material for the Website, including feeds, dumps, banners, maps, emulated chat windows, tool bars, thumbnails, embeddable video players and other materials available from time to time through the Program Portal at our discretion. - “Program Portal” means the webmaster control panel website at Mixpartners through which various tools, reports and Promotional Materials for the Affiliate Program can be accessed.2. Eligibility
By accepting these terms and conditions you represent and warrant that you are at least eighteen (18) years of age, unless the age of majority in your jurisdiction is greater than eighteen (18) years of age, in which case you must be at least the age of majority in your jurisdiction. Participation in the Affiliate Program is not permitted to those under such age. Participation in the Affiliate Program is not permitted where prohibited by law.3. Participation
We grant you the right to participate in the Affiliate Program consistent with the terms and conditions of this Agreement. Your participation in the Affiliate Program may be terminated in accordance with Section 12 herein.4. Accounts
You must create an account with us (an “Account”) to participate in the Affiliate Program. If you create an Account on behalf of a company or other entity, the terms “you” or “your” includes both you as an individual as well as such company or other entity. You represent and warrant that all information that you provide to us in creating your Account is complete and accurate. You shall update such information when it changes or when otherwise required or requested. You shall not to use another person or entity’s account without authorization. You shall be solely responsible for maintaining the confidentiality of and restricted access to your Account. You shall be solely responsibility for all activities that occur under your Account. You shall notify us immediately of any breach of security or unauthorized use of your Account. We shall not be liable for any losses, damages, liabilities or expenses caused by any unauthorized use of your Account. You hereby indemnify us and hold us harmless for any such unauthorized use. By creating an account you represent and warrant that (a) you have the authority and capacity to enter into this Agreement, (b) you are a business and not a consumer, and (c) if you are entering into this Agreement on behalf of a company or other entity (i) you have the authority to bind such company or other entity and (ii) such company or entity has authorized you to enter into this Agreement on its behalf.5. License to Use Promotional Materials
We grant you non-exclusive, non-transferable, revocable, and limited license to reproduce, display, perform, distribute, adapt, modify, publish, translate and create derivative works of (collectively, “use”) the Promotional Materials on the Internet to promote the Website, subject to the terms and conditions of this Agreement. You may not use the Promotional Materials in any way that (a) is contrary to this Agreement; (b) is unlawful or in contravention of any applicable domestic, foreign or international laws and regulations; or (c) will expose us to liability of any kind. We may monitor your use of the Promotional Materials to determine if you are using them in compliance with this Agreement, though we undertake no obligation to do so.6. License to Use Our Marks
We grant you a non-exclusive, transferable, revocable and limited license to use Our Marks solely for the purpose of promoting the Website, subject to the terms and conditions of this Agreement. Without limiting the foregoing sentence, you shall: a) not purchase, bid on or otherwise obtain or use search engine keywords which incorporate Our Marks or are based upon Our Marks; b) not use Our Marks on or in connection with any item or service which is injurious to any individuals or their property, including items or services that could give rise to a claim for breach of warranty (express or implied), product liability, libel, slander, obscenity, invasion of privacy, or any other tort or unlawful action; c) use Our Marks exactly in the form provided and in conformance with any use policies, guidelines or quality standards that we may provide; d) not alter, modify or change Our Marks; e) provide to us, upon our request and at no charge to us, a representative sample of your use of Our Marks; f) not take any actions which may be considered inconsistent with our ownership of Our Marks, including the commencement of a lawsuit; g) not use Our Marks in any way that disparages or tarnishes us or Our Marks or otherwise portrays us in a negative or misleading light; h) not use our marks in such a way that is likely to confuse others as to who the manufacturer or provider is of the item or service being offered, including creating a web page that may confuse users into believing that the web page is owned or operated by us; i) promptly notify us if you become aware of any improper use of Our Marks; and j) reasonably cooperate with us in the protection of our rights in Our Marks. We may revoke the license granted to you pursuant to this section at any time for any reason. Furthermore, the license granted to you pursuant to this section will terminate upon expiration or termination of this Agreement or your participation in the Affiliate Program. We reserve all our rights in Our Marks, including our intellectual property and proprietary rights. All goodwill generated by your use of Our Marks will inure solely to the benefit of us. You acknowledge that Our Marks have great value and goodwill. You acknowledge and agree that Our Marks, all rights therein, and all goodwill pertaining thereto are valid and belong exclusively to us and that we have the exclusive right to use and authorize others to use Our Marks. You shall not use, register or file an application to use Our Marks as a trademark, service mark, trade name, trade dress, domain name, user name, account name or other proprietary designation that incorporates Our Marks or any variations thereof (collectively, “Prohibited Marks”), including in combination with other words or any misspellings. If you have used, registered or filed an application to use any Prohibited Marks, upon our request or upon termination or expiration of this agreement, you shall transfer all your rights and associated goodwill in the Prohibited Marks to us within 10 days thereafter. You hereby grant us an irrevocable power of attorney to take all steps necessary to effectuate the transfer of the Prohibited Marks to us in the event that you fail to comply with the foregoing. Without limiting the foregoing, you agree not to use the Prohibited Marks to promote the goods or services of you or any third party.7. License to Use Your Marks
You hereby grant us a world-wide, non-exclusive, royalty-free, transferable and sub-licenseable license to use your names, titles, logos and trademarks (collectively, “Your Marks”) to advertise, market, promote and publicize in any manner the Website. However, we shall have no obligation to so. You represent and warrant that you own or have the necessary licenses, permissions, rights or consents to use and authorize us to use Your Marks in the manner contemplated herein and that granting us such a license does not (a) breach, conflict with, or constitute a default under any agreement or other instrument applicable to you or binding upon you, or (b) infringe upon any intellectual property right or other proprietary right of any other person or entity.8. Unique links; Referrals; Reporting
In accordance with this Agreement, you can earn Commissions when other users of the Website download files that you upload to the Website with your Affiliate Program Account. Upon joining the Affiliate Program your Account will be designated as an Affiliate Program Account and you must use this Account to upload files for us to be able to credit a download and any Commissions to your Account. We are under no obligation to credit you for downloads that occur for files not uploaded to your Account. The Website will use commercially accepted methods and practices to track downloads of the files you upload with your Account. These methods will be designed to determine whether a download in a Commission occurs. In order for a download to be credited to you, a user must actually download a file that you uploaded with your Account. In addition to other restrictions indicated on the Program Portal, each download must be unique - i.e., we will not credit you for multiple downloads by the same user. We will also not credit you for any download if we are unable to determine that a user actually downloaded your file. This includes situations such as when a user obfuscates their information by IP spoofing or using a proxy, or when a user's browser setting prohibits our tracking. You will also not be credit Commissions for files which are in violation of this Agreement or our general Terms of Use. We will take commercially reasonable steps to provide you with online access to reports that track and review referrals credited to your Account. Such reports will be available on the Program Portal. Such reports will be updated on a regular basis but updates will not be “real-time” and are subject to final recalculations, which may take into account non-completed transactions, adjustments for fraud and other potential changes. The form, content and frequency of updates of such reports are subject to change at our discretion. Your Commissions will be calculated in accordance with the rules listed through the Program Portal, including any “Rates” and “FAQ” sections made available on the Website from time to time (the “Program Rules”), the terms of which are incorporated herein by this reference, and which may be amended in our sole discretion, and your Account. If the Program Rules conflict with this Agreement, the terms of this Agreement shall be binding. The amount of your Commission pursuant to the Program Rules will be determined by the number of “pay per downloads” associated with your Account through your use of your Unique Links, and other relevant factors. We reserve the right to amend the Program Rules at any time by posting such amendments. No other notification will be made to you about any amendments. You acknowledge that your continued participation in the Affiliate Program following such amendments will constitute your acceptance of such amendments, regardless of whether you have actually read them.9. Payment of Commissions
Commissions for credits earned and owing to your Account will be calculated and totaled on a monthly basis. Commissions for each month will be paid out within approximately 14 days following the ending of that period, except as otherwise limited by this Agreement. All Commissions are paid in U.S. Dollars. If the total Commission from all your referrals in a payment period is less than the minimum amount established by us, or selected by you should we in our discretion allow you to select (the “Payment Floor”), we may hold such total Commission until the payment period after the total amount accrued is at least equal to the Payment Floor. The Payment Floor is subject to change at any time and from time to time in our sole discretion. If you have not earned or accrued referral fees in at least the amount of the Payment Floor in six (6) months prior to any given payment period, or if your Account is suspended or terminated, we may, in our sole discretion, without any notice to you and without waiver by us, charge you a maintenance fee in an amount up to the Payment Floor per six (6) month period. This maintenance fee may be deducted and offset against any unpaid Commissions. We may charge service fees on certain payment methods, including wire payments. We may put a payment hold on any part or all of your Commission for any reason, including if we have a reasonable suspicion or belief that referrals credited to your account are fraudulent. We may also deduct from your Account Commissions earned through fraudulent means. You may dispute a payment hold or deduction by notifying us, though we hold the ultimate discretion on determining the fraudulent nature of any Commissions. If a Commission is paid or owed and a subsequent deduction occurs, we may set-off the amount of the deduction and any related fees from any subsequent payments owing to you. If there is no subsequent payment owed, we will send you an invoice for the set-off amount, and you shall pay such invoice no later than thirty (30) days following receipt.10. Taxes
Upon enrollment and completion of your Account, you may be required to complete certain tax documents. We may withhold all Commissions owing to you until such time as you submit these documents. Between the time you create your Account and the time you submit the documents, you may still be provided with a Unique Link and may begin accruing Commissions. However, if you fail to return the documents within sixty (60) days of enrollment in the Affiliate Program, we may suspend your Account until such time as you submit the documents; alternatively, we may terminate your participation in the Affiliate Program and any Commissions you have accrued will be forfeited. We may choose to deduct taxes, including social security, unemployment, and workers’ compensation insurance premiums, from you in accordance with applicable law. In any case, you are ultimately solely responsible for all taxes on Commissions and other amounts paid to you by us.11. Conditions to Participation
As a condition to participation in the Affiliate Program, you shall not use any illegal, fraudulent or deceptive means of any sort to try to earn Commissions. Additionally, as a condition to participation in the Affiliate Program, you agree to all of the following in connection with the Affiliate Program and/or us: a) You shall not incur, undertake or make any representation, warranty, covenant or agreement on behalf of us. b) You shall not make available any material that infringes or violates the copyright or other intellectual property rights of any person, including us. c) You shall not make available any sexual or erotic material that depicts persons under the age of eighteen or in a manner that suggests that they are under the age of eighteen. d) You shall inspected and maintain written documentation in accordance with 18 U.S.C. § 2257 (whether you are subject to United States law or not) and other applicable laws to confirm that all individuals in materials you make available containing sexually explicit content are over the age of eighteen (18) years. e) You shall not make available material that is copyrighted, protected by trade secret or trademark laws, or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from the rightful owner to do so. f) You shall not make available material that is obscene, vulgar, illegal, unlawful, defamatory, fraudulent, libelous, harmful, harassing, abusive, threatening, invasive of privacy or publicity rights, hateful, racially or ethnically offensive, inflammatory, or otherwise inappropriate as decided by us in our sole discretion. g) You shall not make available material that depicts illegal activities, promotes or depicts physical harm or injury against any group or individual, or promotes or depicts any act of cruelty to animals. h) You shall not make available material that impersonates any person or entity or otherwise misrepresents you in any way, including creating a false identity. i) You shall not make available material that would constitute, encourage or provide instructions for a criminal offense, a violation of the rights of any party, or that would otherwise create liability or violate any domestic, foreign or international law. j) You shall abide by all applicable domestic, foreign and international laws and regulations. k) You shall not participate in the Affiliate Program in any way that exposes us to liability of any kind. l) You shall not take any action that imposes, or may impose, in our sole discretion, an unreasonable or disproportionately large load on our technology infrastructure or otherwise make excessive demands on it. m) You shall be solely responsible for all acts and omissions that occur as a result of your participation in the Affiliate Program. n) You shall not post, link to, or otherwise make available any material that contains software viruses or any computer code, file or program designed to interrupt, destroy, limit or monitor the functionality of any computer software or hardware or any telecommunications equipment. o) You shall not send, transfer or otherwise initiate e-mails or other communications in violation of the Can-Spam Act of 2003, as amended, whether or not you are subject to that law. p) You shall not send any e-mails to advertise on behalf of us. q) You shall only use Our Marks and Promotional Materials subject to the terms and conditions of this Agreement. r) Except for Promotional Materials, you shall not display, or by any other method, use any photo, video or other information pertaining to any members of or any other persons who use the Website or who are depicted on the Website. We reserve the right to take appropriate action against you for any unauthorized use of or participation in the Affiliate Program, including civil, criminal and injunctive redress and the termination of your participation in the Affiliate Program. Any use of our computer systems not authorized by this Agreement is a violation of this Agreement and certain domestic, foreign and international laws. We reserve the right at any time to refuse to accept traffic from you or divert any traffic you send to us to any other website, for any reason or no reason. In such a case your only remedies would be to stop attempting to send us traffic or to terminate your participation in the Affiliate Program without any compensation owing to you.12. Termination
Either party may terminate your participation in the Affiliate Program at any time by providing notice to the other party. If you terminate for any reason, or if we terminate for cause, including for breach of any condition in Section 11, then we shall not pay you any Commissions owing or accrued to you. Upon termination, the grant of your right to participate in the Affiliate Program will terminate, but all other portions of these Terms will survive. However, upon termination, any and all licenses provided to you under this Agreement shall immediate cease and you shall immediately stop using anything made available through the Affiliate Program, including Our Marks and Promotional Materials. Furthermore, you shall immediately remove all Unique Links and other content referencing us or the Website from anywhere you may have used them or made them available.13. Modification
This Agreement, as amended from time to time, constitutes the entire agreement between you and us and supersedes all prior agreements between you and us and may not be modified without our written consent. We reserve the right to amend this Agreement at any time by posting such amendments to the Program Portal. No other notification may be made to you about any amendments. YOU ACKNOWLEDGE THAT YOUR CONTINUED PARTICIPATION IN THE AFFILIATE PROGRAM FOLLOWING SUCH AMENDMENTS WILL CONSTITUTE YOUR ACCEPTANCE OF SUCH AMENDMENTS, REGARDLESS OF WHETHER YOU HAVE ACTUALLY READ THEM.14. Indemnification and Release
You hereby agree to indemnify us and hold us harmless from any and all third-party claims and expenses, including attorney’s fees, arising from your participation in the Affiliate Program or from your breach of this Agreement. In the event that you have a dispute with any third parties, you hereby release us, our officers, employees, agents and successors-in-right from claims, demands and damages (actual and consequential) of every kind or nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to such disputes and/or the Affiliate Program or this Agreement.15. Disclaimer of Warranties and Limitation of Liability
READ THIS SECTION CAREFULLY AS IT LIMITS OUR LIABILITY TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW. The Affiliate Program is provided “AS-IS” and without any warranty or condition, express, implied or statutory. We specifically disclaim to the fullest extent any implied warranties of merchantability, fitness for a particular purpose, non-infringement, information accuracy, integration, interoperability or quiet enjoyment. We disclaim any warranties for viruses or other harmful components in connection with the Affiliate Program. Some jurisdictions do not allow the disclaimer of implied warranties; in such jurisdictions, some of the foregoing disclaimers may not apply to you insofar as they relate to implied warranties. UNDER NO CIRCUMSTANCES SHALL WE BE LIABLE FOR DIRECT, INDIRECT INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) RESULTING FROM ANY ASPECT OF YOUR USE OF THE AFFILIATE PROGRAM, WHETHER SUCH DAMAGES ARISE FROM (i) YOUR USE, MISUSE OR INABILITY TO USE THE AFFILIATE PROGRAM, (ii) YOUR RELIANCE ON ANY CONTENT ON THE AFFILIATE PROGRAM, (iii) THE INTERRUPTION, SUSPENSION, MODIFICATION, ALTERATION OR COMPLETE DISCONTINUANCE OF THE AFFILIATE PROGRAM OR (iv) THE TERMINATION OF SERVICE BY US. THESE LIMITATIONS ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF OTHER SERVICES OR PRODUCTS RECEIVED OR ADVERTISED IN CONNECTION WITH THE AFFILIATE PROGRAM. SOME JURISDICTIONS DO NOT ALLOW SOME LIMITATIONS OF LIABILITY. IN SUCH JURISDICTIONS, SOME OF THE FOREGOING LIMITATIONS MAY NOT APPLY TO YOU. WE DO NOT WARRANT THAT (i) THE AFFILIATE PROGRAM WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (ii) THE AFFILIATE PROGRAM WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM YOUR USE OF THE AFFILIATE PROGRAM WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, CONTENT OR OTHER MATERIAL OBTAINED THROUGH THE AFFILIATE PROGRAM WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, OR (v) ANY ERRORS IN CONTENT WILL BE CORRECTED. ANY CONTENT OBTAINED THROUGH THE USE OF THE AFFILIATE PROGRAM IS OBTAINED AT YOUR OWN DISCRETION AND RISK. YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH CONTENT. YOUR SOLE AND EXCLUSIVE RIGHT AND REMEDY IN CASE OF DISSATISFACTION WITH THE AFFILIATE PROGRAM OR ANY OTHER GRIEVANCE SHALL BE THE TERMINATION OF YOUR PARTICIPATION IN THE AFFILIATE PROGRAM. IN NO CASE SHALL THE MAXIMUM LIABILITY OF US ARISING FROM OR RELATING TO YOUR PARTICIPATION IN THE AFFILIATE PROGRAM EXCEED ANY AMOUNT CURRENTLY ACCRUED TO YOUR ACCOUNT. All of the above disclaimers of warranties and limitations of liabilities shall be deemed to apply to our parent companies, subsidiaries, directors, officers, employees, agents, designees, contractors, affiliates, subsidiaries, successors and assigns as well.16. Choice of Law and Venue
To the maximum extent permitted by law, this Agreement as well as any claim, cause of action, or dispute that may arise between you and us, are governed by the laws of RUSSIAN FEDERATION, without regard to conflict of law provisions. For any claim brought by either party, you agree to submit and consent to the personal and exclusive jurisdiction in, and the exclusive venue of, the courts located within RUSSIAN FEDERATION.17. Miscellaneous Provisions
a) Relationship of Customers; Customer Information. You acknowledge that visitors and members of the Website are our customers for all purposes and that the Website’s terms, policies, rules and procedures will govern their relationship between them and us. We shall own all information pertaining to any person who accesses the Website. b) Relationship of Parties. Nothing in this Agreement is deemed to create any partnership, joint venture, agency, franchise, sales representative or employment relationship between the parties. You have no authority to make or accept any offers or representations on our behalf. You shall not hold yourself out as our agent. You shall not take any action or make any statement that contradicts anything in this sub-section. You acknowledge and agree that you are an independent contractor to us in all manners and respects. You are not entitled to any benefits. c) Third Party Rights. Nothing in this Agreement is intended, nor will be deemed to confer rights or remedies upon any third party. d) Severability. If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law, then the invalid and unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the agreement shall continue in effect. e) Waiver. Our failure to enforce any provision of these Terms will not be construed as a waiver of any provision or right. f) Confidentiality. Your Commissions and any software, technology, programming, APIs, specifications, materials, guidelines and documentation or any other information we designate as “confidential” shall be kept confidential by you and shall not be disclosed to any other individual or entity except as may be required by a court of competent jurisdiction, governmental agency, law, regulation or rule. In such event, and if permitted, you shall give us reasonable advance notice to the disclosure and redact or seek an appropriate protective order to the extent possible before disclosing the confidential information. g) Independent Investigation. You acknowledge that you have read this Agreement and any additional relevant documentation, and agree to its terms and conditions. You acknowledge that you have independently evaluated the desirability of entering into this Agreement and are not relying on any representation, guarantee, or statement other than as set forth in this Agreement. You acknowledge that you have the right to review this Agreement with your attorney before you enter into it and that nothing herein and no statement by us or any person associated with us has in any way prevented or inhibited you in any way from seeking such advice before entering into this Agreement. h) Assignment. You may not resell, assign or transfer any of your rights or obligations under this Agreement without our prior written consent. We may resell, assign or transfer our rights and obligations under this Agreement at any time without restriction and without notice to or consent of you. i) Force Majeure. Neither party shall be held responsible for delay or failure in performance of any obligation pursuant to this Agreement caused by acts of God (or natural disasters), terrorism, strikes, embargoes, fires, war or other causes beyond the affected party’s reasonable control. j) Counterparts. This Agreement may be executed in counterparts, via any means (except verbal), all of which shall be effective, but when taken together shall comprise one agreement. k) Merger. This Agreement represents the entire understanding between the parties with respect to the subject matter hereof and supersedes all previous understandings, written, oral or implied. l) Notice. You agree that we may provide you with notices by e-mail, regular mail, postings to the Website, or postings to the Affiliate Program’s website. Notice is deemed to be received by you when it is sent by us. Except as explicitly stated otherwise, notices to us must be delivered by e-mail to [email protected] and will be deemed to be given when received by us. m) Headings. The section titles and headings in this Agreement are for convenience only and have no legal or contractual effect. n) Construction of “Including.” As used in this Agreement, the term “including” is illustrative and not limitative.