MonetizeMore Affiliate Agreement
This Affiliate Agreement (the "Agreement") is a legal agreement made and entered into by and between eSell Solutions LTD DBA MonetizeMore ("MM", and collectively, the "Parties") and you, relating to affiliate’s ability to receive compensation for revenue generated from referrals in the course of client relationships created MM’s advertising optimization services and technology, and other MM branded products, services, and user documentation (the "Services").
1. Overview
The purpose of this Agreement is to numerate the terms of the relationship between the two Parties that will apply upon the Affiliate joining MonetizeMore's Affiliate Program. The purpose of this Agreement is to allow HTML linking between the Affiliate’s web site and the MonetizeMore web site. Please note that throughout this Agreement, "we," "us," and "our" may refer to MM, and "you," "your," and "yours" may refer to the Affiliate.
2. Affiliate Obligations
2.1. To begin the enrollment process, prospective Affiliates must complete and submit the online application at the Tapfiliate.com server. Although the application is automatically approved, MM reserves the right to evaluate all applications at a later time and may reject any applications at the sole discretion of the Company. MM may cancel any application if it is determined that an applicant’s site is unsuitable for the Program, including if it:
2.1.1. Promotes sexually explicit materials
2.1.2. Promotes violence
2.1.3. Promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age
2.1.4. Promotes illegal activities
2.1.5. Incorporates any materials which infringe or assist others to infringe on any copyright, trademark or other intellectual property rights or to violate the law
2.1.6. Includes "MonetizeMore" or variations or misspellings thereof in its domain name
2.1.7. Is otherwise in any way unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically or otherwise objectionable to us in our sole discretion.
2.1.8. Contains software downloads that potentially enable diversions of commission from other affiliates in our program.
2.1.9. Affiliates may not create or design their website or any other website that they operate, explicitly or implied in a manner which resembles the website of MM nor design their website in a manner which leads customers to believe that the Affiliate is MonetizeMore or any other affiliated business.
2.2. Members of MonetizeMore’s Affiliate Program will have access to the Tapfiliate dashboard. Through this dashboard, Affiliates will be able to review Program details, download HTML codes, gain access to banner creatives, and browse and get tracking codes for coupons and deals. In order for MM to accurately keep track of all guest visits from the Affiliate site to MM’s the Affiliate covenants to use only the HTML code provided by MM for each banner, text link, or other affiliate links.
2.3. The Affiliate covenants to regularly maintain and update the site and consents to MM’s monitoring of said site as necessary to ensure that it is up-to-date and to notify you of any changes that we feel should enhance your performance.
2.4. It is entirely the responsibility of the Affiliate to follow all applicable intellectual property and other laws that pertain to their site. Affiliates must have express permission to use any copyrighted material, whether it be a writing, an image, or any other copyrightable work. Any use of a third party’s copyrighted material or other intellectual property in violation of the law or any third-party rights will be the sole responsibility of the Affiliate and MM will not be responsible for any and all liability born out of such violations .
3. MonetizeMore Rights and Obligations
3.1. MM covenants to provide each Affiliate with information on MonetizeMore’s Affiliate Program as well as the requisite HTML codes.
3.2. MM reserves the right, at any time, to review placement and approve the use of the Affiliates HTML Links and require that you change the placement or use to comply with the guidelines provided to you.
3.3. MM reserves the right to monitor any Affiliate site at any time to ensure adherence to the terms and conditions of the agreement herein. MM may notify the Affiliate of any changes to the site that MM feel should be made, or to make sure that the links to the MM web site are appropriate and to further notify you of any changes that MM feel should be made. Refusals of the Affiliate to make said changes may result in the termination of the Affiliate’s participation in the MonetizeMore Affiliate Program.
3.4. MonetizeMore reserves the right to terminate this Agreement immediately and without notice should the Company determine that the Affiliates are abusing the use of the MonetizeMore Affiliate Program or committing fraud in their use of the program. If such fraud or abuse is detected, MonetizeMore shall not be liable to you for any commissions for such fraudulent sales.
3.5. The enactment of this Agreement will be contingent on MM’s acceptance of the Affiliate’s application and the mutual signing of the Agreement herein.
4. Compensation
4.1. MM shall pay to the Affiliate 15% of revenue generated from the referred publisher (net revenue we make from that publisher) for the first year of their engagement using our platform.
4.2. Revenue generated as a result of the program is defined as revenue generated from new clients/business who are brought to the site directly from the Affiliate’s HTML links provided by MM for the purpose of adhering to the terms of this Agreement.
4.3. The “Affiliate Compensation Period” is defined as the period of twelve (12) months immediately following the commencement of this Agreement herein.
4.4. The Affiliate Compensation Period will begin from the first date of confirmed revenue from a successfully referred client.
4.5. MM agrees to provide payment of all compensation owed to the Affiliate on a net 30 basis.
5. Term and Termination
5.1. MM reserves the right to terminate this Agreement and the Affilitate’s participation in the MM Affiliate Program immediately and without notice to the Affiliate should it be determined that the Affiliate has committed fraud in the use of the MM Affiliate Program or should it be determined that the Affiliate abused Program in any way. If such fraud or abuse is detected, MM shall not be liable to the Affiliate for any commissions for such fraudulent sales.
5.1.1. Subject to the sole discretion of MM, abuse of the Program shall be defined as including but not limited to the breach of any obligations, responsibilities, and restrictions provided in the Affiliate Program Frequently Asked Questions available at: https://www.monetizemore.com/affiliate-partner-program-2/
5.2. This Agreement will commence upon the signing of this Agreement and the completion of the Affiliate application and shall continue indefinitely unless terminated.
5.3. The Affiliate may unilaterally terminate this Agreement, with or without cause, by providing the other party with written notice of no less than two (2) weeks. Written notice can be in the form of mail, email or fax.
5.4. Any material breach of the terms of this Agreement will result in immediate termination without the notice period of two (2) weeks subject to the approval of the offended party.
6. Modification
6.1. MM reserves the right to modify the terms and conditions of this Agreement at any time at the sole discretion of MM. In such an event, the Affiliate will be notified by email. Modifications may include, but are not limited to, changes in the payment procedures and MonetizeMore's Affiliate Program rules.
6.2. The Affiliate reserves the right to object to any modification of this Agreement and to unilaterally terminate the Agreement.
6.3. Continued participation in MonetizeMore's Affiliate Program by the Affiliate following the posting of the change notice or new Agreement will indicate the Affiliate’s consent to all changes to the Agreement.
7. Method of Payment
7.1. All payments to Affiliates will be done so through a mutually agreed upon third-party payment processor. Both Parties agree to adhere to the terms and conditions of the third-party payment processor in order to facilitate the payment of all agreed upon compensation herein.
8. Promotion Restrictions
8.1. Certain forms of advertising are always prohibited by MM. Affiliates are restricted from implying affiliation to or using MM branding or logos in advertising techniques including but not limited to the following:
8.1.1. Spamming as defined by Canada’s Anti-Spam Legislation, the use of unsolicited commercial email (UCE), postings to non-commercial newsgroups and cross-posting to multiple newsgroups at once.
8.2. Additionally, Affiliates may not advertise in any way that effectively conceals or misrepresents the identity of the Affiliate, the Affiliate’s domain name, or the Affiliate’s return email address.
8.3. The Affiliate may use mailings to customers to promote MM so long as the recipient is already a customer or subscriber of the Affiliate’s services or web site, and recipients have the option to remove themselves from future mailings. Also, affiliates may post to newsgroups to promote MM so long as the news group specifically welcomes commercial messages. At all times, affiliates must clearly represent themselves and their web sites as independent from MM.
8.4. Spamming is considered cause for immediate termination of this Agreement and the Affiliate’s participation in the MonetizeMore Affiliate Program. Any pending balances owed to you will not be paid if the Affiliate’s account is terminated due to such unacceptable advertising or solicitation.
8.5. Affiliates are prohibited from promoting or adding additional keywords related to or referencing the products, services and functions of MM through paid advertising channels, this includes but is not limited to Google Adwords, Bing, Facebook, Instagram, YouTube, Quora, Twitter, etc. Affiliates that among other keywords or exclusively bid in their Pay-Per-Click campaigns on keywords such as MonetizeMore, www.MonetizeMore, www.MonetizeMore.com, and/or any misspellings or similar alterations of these – be it separately or in combination with other keywords – and do not direct the traffic from such campaigns to their own website prior to re-directing it to MM, will be considered trademark violators, and will be banned from MonetizeMore’s Affiliate Program. We will do everything possible to contact the affiliate prior to the ban. However, we reserve the right to expel any trademark violator from our affiliate program without prior notice, and on the first occurrence of such PPC bidding behavior.
8.6. The Affiliate shall not transmit any so-called “interstitials,” “Parasiteware™,” “Parasitic Marketing,” “Shopping Assistance Application,” “Toolbar Installations and/or Add-ons,” “Shopping Wallets” or “deceptive pop-ups and/or pop-unders” to consumers from the time the consumer clicks on a qualifying link until such time as the consumer has fully exited MM’s site (i.e., no page from our site or any MM’s content or branding is visible on the end-user’s screen). As used herein a. “Parasiteware™” and “Parasitic Marketing” shall mean an application that
8.6.1. Through accidental or direct intent causes the overwriting of affiliate and non affiliate commission tracking cookies through any other means than a customer initiated click on a qualifying link on a web page or email;
8.6.2. Intercepts searches to redirect traffic through an installed software, thereby causing, pop ups, commission tracking cookies to be put in place or other commission tracking cookies to be overwritten where a user would under normal circumstances have arrived at the same destination through the results given by the search (search engines being, but not limited to, Google, MSN, Yahoo, Overture, AltaVista, Hotbot and similar search or directory engines);
8.6.3. Set commission tracking cookies through loading of MonetizeMore site in IFrames, hidden links and automatic pop ups that open MonetizeMore’s site;
8.6.4. Targets text on web sites, other than those web sites 100% owned by the application owner, for the purpose of contextual marketing;
8.6.5. Removes, replaces or blocks the visibility of Affiliate banners with any other banners, other than those that are on web sites 100% owned by the owner of the application.
9. Grant of Licenses
9.1. MM grants the Affiliate a non-exclusive, non-transferable, revocable right to (i) access the MM site through HTML links solely pursuant to the terms of this Agreement and (ii) solely in connection with such links, to use our logos, trade names, trademarks, and similar identifying material (collectively, the "Licensed Materials") that MM provides to the Affiliate or authorizes for such purpose.
9.2. The contracting Affiliate is only entitled to use the Licensed Materials to the extent that they are a member in good standing of MonetizeMore’s Affiliate Program. The Affiliate agrees that all uses of the Licensed Materials will be on behalf of MM and the good will associated therewith will inure to the sole benefit of MM.
9.3. The Parties agree not to use the other's proprietary materials in any manner that is disparaging, misleading, obscene or that otherwise portrays the party in a negative light. Each party reserves all of its respective rights in the proprietary materials covered by this license. Other than the license granted in this Agreement, each party retains all right, title, and interest to its respective rights and no right, title, or interest is transferred to the other.
10. Disclaimer
MonetizeMore MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES REGARDING MonetizeMore SERVICE AND WEB SITE OR THE PRODUCTS OR SERVICES PROVIDED THEREIN, ANY IMPLIED WARRANTIES OF MonetizeMore ABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT ARE EXPRESSLY DISCLAIMED AND EXCLUDED. IN ADDITION, WE MAKE NO REPRESENTATION THAT THE OPERATION OF OUR SITE WILL BE UNINTERRUPTED OR ERROR FREE, AND WE WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.
11. Representations and Warranties
11.1. The Affiliate affirms that this Agreement has been duly and validly executed and delivered and constitutes your legal, valid, and binding obligation, enforceable against the Affiliate in accordance with its terms;
11.2. The Affiliate has the full right, power, and authority to enter into and be bound by the terms and conditions of this Agreement and to perform their obligations under this Agreement, without the approval or consent of any other party;
11.3. The Affiliate has sufficient right, title, and interest in and to the rights granted to MM in this Agreement.
12. Limitations of Liability
MM WILL NOT BE LIABLE TO THE CONTRACTING AFFILIATE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR GOODWILL OR ANTICIPATED PROFITS OR LOST BUSINESS), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN NO EVENT SHALL MM CUMULATIVE LIABILITY TO THE CONTRACTING AFFILIATE ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL COMMISSION FEES PAID TO YOU UNDER THIS AGREEMENT.
13. Indemnification
The Affiliate hereby agrees to indemnify and hold harmless MM, and its subsidiaries and affiliates, and their directors, officers, employees, agents, shareholders, partners, members, and other owners, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' fees) (any or all of the foregoing hereinafter referred to as "Losses") insofar as such Losses (or actions in respect thereof) arise out of or are based on (i) any claim that our use of the affiliate trademarks infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party, (ii) any misrepresentation of a representation or warranty or breach of a covenant and agreement made by you herein, or (iii) any claim related to your site, including, without limitation, content therein not attributable to us.
14. Confidentiality
All confidential information, including, but not limited to, any business, technical, financial, and customer information, disclosed by one party to the other during negotiation or the effective term of this Agreement which is marked "Confidential," will remain the sole property of the disclosing party, and each party will keep in confidence and not use or disclose such proprietary information of the other party without express written permission of the disclosing party.
15. Miscellaneous
15.1. Affiliates agree that they are independent contractors, and nothing in this Agreement will constitute the creation of any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the Affiliates and MonetizeMore. You will have no authority to make or accept any offers or representations on our behalf. Affiliates will not make any statement, whether on the Affiliate Site or any other of Affiliate Site or otherwise, that reasonably would contradict anything in this Section.
15.2. Neither party may assign its rights or obligations under this Agreement to any party, except to a party who obtains all or substantially all of the business or assets of a third party.
15.3. This Agreement shall be governed by and interpreted in accordance with the laws of the province of British Columbia without regard to the conflicts of laws and principles thereof.
15.4. The Parties may not amend or waive any provision of this Agreement unless in writing and signed by both parties.
15.5. This Agreement represents the entire agreement between the contracting Parties, and shall supersede all prior agreements and communications of the parties, oral or written.
15.6. The headings and titles contained in this Agreement are included for convenience only, and shall not limit or otherwise affect the terms of this Agreement.
15.7. If any provision of this Agreement is held to be invalid or unenforceable, that provision shall be eliminated or limited to the minimum extent necessary such that the intent of the parties is effectuated, and the remainder of this agreement shall have full force and effect.