Publisher Affiliation Agreement (“Agreement”) Release: August 3, 2011
The parties to this agreement hereinafter are Media Shakers Corp in connection with its CPA network Division Mobiklix (“Media Shakers”), and You the Media Partner/Publisher/Affiliate (“Publisher,” as defined hereinafter). Media Shakers facilitates a Performance Marketing Service (as defined hereinafter) by providing marketing services via the Internet to Advertisers. In general, Media Shakers operates and manages an advertising network and agency on the Internet allowing providers to advertise their goods and services, by several means (“Media Shakers Agency”), inclusive of what relates particularly for the purpose of this Agreement with You, which is an affiliate marketing network ("Affiliate Network" or “Affiliate Program”). To qualify as a member of Media Shakers' Performance Marketing Service (“Service” or "Marketing Service"), in particular, and Media Shakers’ Agency in general , Publisher must read and agree to the terms of this Agreement, and Publisher must meet and/or comply with all of the requirements described herein. Publisher's agreement to the terms of this Agreement is signified by checking the box at the end of this Agreement entitled "I have read and agreed to the terms of this Agreement." Publisher may not use the Marketing Services or be a participant within the Affiliate Network, unless it agrees to the terms of this Agreement. This Agreement reflects the entire understandings and undertakings between Publisher and Media Shakers, for the purpose of the Affiliate Network. The participants in Media Shakers Agency are Advertisers, Publishers and Media Shakers itself. The Advertisers market and advertise their goods and services using advertising media such as banners, product data, text-links, e-mails and videos (“Ad Media”). The Publishers incorporate or embed the Ad Media into their homepage, website or e-mail ("Advertising Space"). For any advertising leading to a successful transaction, Media Shakers shall pay to the Publisher remuneration in an amount specified and determined in advance (“Commissions”).
1.2 To participate at Media Shakers Agency, Publishers must register at Media Shakers’ website (www.mediashakers.com.). After the Publisher’s registration is approved by Media Shakers, the Publisher may apply for the Advertisers' partner programs admission within the Affiliate Network, so to display Ad Media on the Publisher’s Advertising Space.
1.3 Legal and in-good standing entities or private individuals over 18 years of age may register as Publishers. Additionally, each Publisher must have a bank account operated under its name. Media Shakers reserves the right to verify the Publishers’ personal identification and general data. Registration with the Media Shakers Agency is nor transferable neither assignable.
1.4 By completing the registration form and accepting the Terms and Conditions in this Agreement,
the Publisher is actually submitting its offer (“Offer”) to participate at Media Shakers Agency by accepting this Agreement and the Terms and Condition according to it.
1.5 If Media Shakers accepts the Offer, it will confirm this by e-mail. Media Shakers reserves the right to refuse an Offer without citing any reasons for its refusal; in such case, the data transmitted with the registration form will be deleted without delay.
1.6 Access to the Media Shakers Agency will be allowed by clicking the activation link in the confirmation email and entering the access data. The interface for registered members ("Media Shakers Interface") will provide the Publishers with an overview of the Advertisers' partner Ad Media and proposals that are available and open at that time for Publisher’s participation. Using the Media Shakers Interface, Publishers can review and alter their personal data and information and cancel their participation as a whole in the Media Shakers Agency.
2. Subject of the Agreement
2.1 Media Shakers operates and manages the Media Shakers Agency. Participants in the Media Shakers Agency are Publishers, Advertisers and Media Shakers itself. Publishers are individuals over 18 years of age or legal entities providing Ad space on their homepages or websites or promoting Ad space in their e-mail, etc. to Advertisers for the purpose of marketing the goods and services offered by the Advertisers ("Advertising Space"); Publishers can also be operators of Media Shakers Agency through their own Publishers ("Sub-Publishers"). Advertisers are individuals over 18 years of age or legal entities who market or advertise their goods and services via Media Shakers Agency by means of partner programs / Marketing Service plan etc., using Ad Media such as banners, product data, text-links, e-mails, videos, or through search engine marketing.
2.2 Publishers participate in the Marketing Service and incorporate the Advertisers' Ad Media into their
Advertising Space. Whenever third parties, such as end consumers, click on the Ad Media and this subsequently results in a business transaction between the end consumer and the Advertiser (“Business Transaction(s)” or “Conversions”), the Publisher shall receive remuneration for providing the Advertising Space which has successfully connected the end consumers to the Advertiser (“Commission”). In this context, Business Transactions establish the entitlement to receive a Commission. A business transaction is e.g. the purchase of goods or a request for services from the Advertiser ("Sale"), but it may also be defined as clicking on or viewing Ad Media, or registering on a website, subscribing to a newsletter ("Lead"), sending an e-mail or such like. Business transactions that are subject to remuneration are defined in greater detail under Advertiser’s Offer specification. It is also possible to remunerate combinations of Clicks, Views, Leads and/or Sales.
2.3 Media Shakers monitors and records the business transactions concluded ("Tracking"); it provides the Publishers with tracking data and credits the Commissions to the Publisher Accounts. Only the Tracking by
Media Shakers is final and decisive for the identification of successful business transactions and for the calculation of the resulting remuneration / commission.
2.4 The registration with and the participation in the Media Shakers Agency is free of any charge.
2.5 Using the Media Shakers Interface, Publishers can control their advertising activities, in particular, they are able to select Ad Media and embed / incorporate it into their Advertising Space. Media Shakers Interface system shows available applications in this respect.
2.6 Media Shakers puts efforts to ensure that the available applications are up-to-date, complete and correct, although Media Shakers is not obliged to review the Ad Media provided by the Advertisers. Due to Media Shakers Interface system maintenance procedures or other improvements of certain functions may cause temporarily unavailable access to data. In case that any interruption or failure has a greater than a minor impact, Media Shakers shall remedy them without delay to the extent this is in fact feasible and can reasonably be expected of it, in particular from an economic and legal perspective.
2.7 Media Shakers endeavors to continuously develop and improve Media Shakers Agency and its systems. In the course of such development, Media Shakers may enhance, expand or slightly modify individual applications. This includes discontinuing functionalities or other features of the services, as far as the changes are of minor importance and do not result in a significant change of Media Shakers’ contractual duties as set forth in this agreement. Media Shakers may alter services, in particular if such alteration is customary in the industry or if changes are legally demanded.
3. Participation in Affiliate Programs
3.1 Publishers shall apply for the available Affiliate Program using the Media Shakers Interface, providing the details of their Advertising Space. In the application process, the properties of their Advertising Space will be reviewed in view of prerequisites by Advertiser, the Marketing Service, and Media Shakers Agency policies. Should the Advertising Space listed in the registration process or in the application does not correspond to any of the above, Media Shakers is entitled to block the Publisher’s account without delay. The subsequent procedure has been set out in Clause 5.2 hereof.
3.2 In submitting their application for the Affiliate Program, Publishers accept any additional conditions for participation which are displayed in the context of each program or Offer under the Affiliate Program. These additional conditions will become an integral part of this contract.
3.3 The Advertisers may accept or reject the Publishers’ applications at their own discretion. Publishersare not entitled to being admitted as participants; nor can they derive any claims from non-admission.
3.4 During the term of this contract, the Publisher must not circumvent Media Shakers by concluding contracts or entering contractual negotiations with the Advertisers of Media Shakers Agency that cover the subject matter of this contract or services alike.
4. Duties of the Publisher
4.1 By registering with Media Shakers:
4.1.1 The Publisher warrants, that the data provided at registration is correct and complete. Should the
data provided at registration change at any time after registration, the Publisher must change his profile
as stored at the Media Shakers Interface.
4.1.2 Parties subject to turnover tax are under the obligation to submit to Media Shakers, as part of the contact details, their tax payer identification number issued by their local tax authority or the Value Added Tax identification number.
4.1.3 The Publisher undertakes to keep the access data selected at registration (e-mail address and
password) confidential, not to communicate such data to third parties and to keep such data away from third parties. No third party must be enabled to use Publisher’s login details in order to access data. Publishers who have reason to assume that third parties have become aware of their access data must inform Media Shakers without delay in writing or by email sent to Affiliates@MediaShakers.com.
4.2 Displaying Advertisements on Advertising Spaces
4.2.1 Publishers must hold the required rights of the Advertising Space.
4.2.2 By applying to the Affiliate Program, and incorporating the advertisement into their Advertising Space, Publishers warrant that their Advertising Space and the advertising activities as a whole: (a) Do not infringe any rights of third-parties (in particular, without limitation, copyrights, trademark rights, personal rights or similar rights). (b) Do not violate any other provisions of any law (in particular competition law), do not incite and glorify violence and hate, are not racist, pornographic or liable to corrupt youth, or unfit to be made generally accessible to public.
4.2.3 The Publisher must respect the prohibition of unsolicited advertisement (“Spam”) when sending emails containing Ad Media. Therefore, the consent of each and every recipient is to be obtained prior to sending e-mails; should Media Shakers so request, Publishers must provide written evidence of such consent has been granted.
4.3 Advertising Activities in General
The Publisher must not use keywords containing legally protected terms such as, in particular, trademarks of the Advertiser or of the Advertiser's competitors ("brand bidding"), unless the respective Advertiser has expressed his permission in advance.
4.4 Technical Intrusion into the Media Shakers Agency
The Publisher hereby undertakes to refrain from attacks of any kind on the Media Shakers Agency. Attacks are, without limitation, defined in particular as attempts made to overcome or circumvent the security
mechanisms of the Media Shakers Agency or to otherwise incapacitate them, using computer programs enabling automatic data readouts, as well as using and/or circulating viruses, worms, Trojans, brute force attacks, spam or using other links, programs or procedures that are suited to damage the Media Shakers Agency or any or all participants at Media Shakers Agency.
Publishers who are operating an Agency with Sub-Publishers themselves hereby guarantee to communicate these Terms and Conditions for Publishers to their Sub-Publishers and to monitor and enforce their compliance. Publishers will be held liable for the conduct and practices of their Sub-Publishers.
Any form of misuse, i.e. procuring business transactions by unfair methods or inadmissible means that violate applicable law, this Agreement and its Terms and Conditions for Publishers or the principle of
Media Shakers Agency, is prohibited.
5.1 In particular, Publishers are prohibited from attempting to obtain Commissions by procuring business
transactions themselves or through a third party using the Ad Media, tracking links and/or other technical aids provided to them in the context of the Media Shakers Agency using one or several of the following methods:
5.1.1 Fraudulently pretending or faking Transactions and/or Conversions, for example by entering third party data without authorization, or by providing false or non-existing data when ordering goods or registering online; and/or
5.1.2 Using Ad Media that enables Tracking although it its not displayed at all, not visibly or not in the manner and/or size stipulated by the Advertiser; and/or
5.2 Any form of misuse will lead to the blocking of the Publishers’ accounts immediately. In this case
Publishers may raise an objection (e.g. via letter, fax, e-mail) within a month in order to provide a statement and evidence that the chosen form of advertising has been in accordance with this Agreement and its Terms and Conditions .If the Publisher cannot confute the breach of this Agreement, Media Shakers will issue a notice of termination. In the event of termination, the agreement will be wound up and liquidated pursuant to the stipulations of Section 7 in this Agreement. For each case of intentional or negligent violation of any of this Agreement provisions, the Publisher hereby undertakes to pay Media Shakers liquidated damages in each case in an amount to be determined at Media Shakers' equitably exercised discretion and, in the event of dispute, in an amount to be reviewed by court. Each instance of violation shall be subject to liquidated damages in the maximum amount of the current balance of the Publisher Account.
Publishers will receive performance-related remuneration (“Commissions”):
6.1 The amount of the Commissions in each individual case, and the type of business transactions entitling to the payment of Commissions, shall depend on the respective Advertiser's Offer. The Advertiser may modify the conditions of its Offers or terminate its entire Offer program with effect for the future. Publishers shall not demand in connection with an Offer. The conditions of any Offer can be viewed in the Media Shakers Interface. Publishers have no claim to any further compensation of expenses or costs etc.
6.2 The entitlement to payment of the Commissions is constituted by the following premises:
6.2.1 A business transaction between an end customer and an Advertiser has been effected via the Advertising Space; and
6.2.2 The business transaction has been tracked by Media Shakers; and
6.2.3 The transaction has been approved by the Advertiser and has been confirmed by Media Shakers and;
6.2.4 There has been no misuse within the meaning of Section 5 of this Agreement and its Terms and Conditions.
6.3 Media Shakers will set up dedicated Publisher Accounts for the payments of the Commissions. The Publisher Accounts will be settled by crediting, in other words, Media Shakers will credit the respective Commissions to the Publisher Accounts. Media Shakers reserves the right to require from Publisher an invoice, receipt of which may enable the execution of payments to Publisher. No interest will be paid on the credit balance in the Publisher Account. Publisher shall be able to view its account credit statement, which shall be updated at least once a month, so to reflect Transactions and/or Conversions approved. At its sole discretion, Media Shakers may require from Publisher to confirm payout, receipt of which will allow payment to the Publisher and/or to confirm the generating by Media Shakers’ system of a Credit Note or Credit Invoice in connection with such Payout, confirmation of which will allow payment to Publisher. Without any exception, Incurred payment wire / transfer fees will be deducted from payments to Publishers. Payments to Publisher for U$S 1 or more will be provided through PayPal. Payments to Publisher for more than U$S 1,000 can be provided by either PayPal or by wire. Publishers interested in getting paid through Media Shakers’ MasterCard® Debit Card (available for average monthly Payouts of minimum U$50) shall contact their account manager at Media Shakers.
6.4 Media Shakers will only pay out credits that have been confirmed by the Publisher in due time. If, the minimum disbursement amount has not been attained or if the credit statement is not released at the end of the month will remain in the Publisher's account and carried forward to the next month.
7. Term of Agreement and Termination
7.1 This Agreement and Your participation at Media Shakers Agency shall remain in effect for an indefinite term, unless terminated at any time in text form (letter, fax, e-mail); additionally, the Publisher may terminate this agreement by notifying its account manager with Media Shakers by email
7.2 Any business transaction that was procured via the Advertising Space at the time of termination will be processed pursuant to Section 6 following the receipt of the termination notice. Upon the expiring of this Agreement, any credit balance remaining will be paid to the Publisher in accordance to Section 6.3
7.3 Once the participation at Media Shakers Agency has been terminated, the data record stored at registration will be deleted completely upon expiry of the statutory obligation to keep records in safe custody.
7.4 If the contract has been terminated by Media Shakers for misuse pursuant to Section 5, the liquidated damages pursuant to Section 5.2 will be deducted from the Publisher Account.
8. Termination of Participation by Media Shakers on Grounds of Inactivity / Statute of Limitations
8.1 The registration of Publishers with Media Shakers who fail to activate the registration via the activation link will be automatically canceled after sixty (60) days. It is possible to re-register.
8.2 If no commissions have been credited to the Publisher Account for a period of two years after registration, Media Shakers reserves the right to close the account and to cancel the registration. It is possible to re- register.
8.3 Commissions are time-barred after three (3) years from the end of the respective year in which each Commission was credited to the account.
9 Data Protection
9.1 Protecting personal data is very important to Media Shakers – nevertheless, collecting, processing and using such data is indispensable for operating Media Shakers Agency. Media Shakers will collect, process and use personal data exclusively in compliance with the applicable statutory provisions governing the protection of data.
9.2 Media Shakers is entitled to collect and use personal data as is necessary in order to enable participation in the Media Shakers Agency.
9.2.1 Media Shakers will particularly collect, process and use data requested at registration as well as data accruing in the course of participation in the Agency.
9.2.2 Media Shakers will use the contact data also to contact Publishers by e-mail in connection with their participation in the Media Shakers Agency. Receipt of so-called provider news – e-mails from Media Shaker – can be deactivated in the Media Shakers Interface, or alternative, by emailing the Publishers’ account manager. However, Media Shakers recommends that the receipt function should be activated since such provider news may contain important information, e.g. changes in remuneration.
9.3 The personal data will be used and processed for purposes other than those referred to under Section 9.2 only if the Publishers have expressly agreed to this being done, or if a statutory provision allows Media Shakers such use.
9.5 Publishers can obtain information about their data via the usual contact channels or by sending an email to privacy@MediaShakers.com
10. Rights of Use
10.1 The information and the data obtained in the course of participation at Media Shakers Agency may only be used in connection with Media Shakers Agency. Forwarding such information or data to third parties and using them for any other purposes is prohibited.
10.2 Publishers must not modify the Ad Media and their source codes, neither visually nor technically nor with regard to their content, nor they are allowed to process the Ad Media and their source codes in any other way, unless the respective Advertiser has previously granted his written consent.
10.3 Media Shakers Agency and its applications are protected under copyright law and other statutory provisions.
10.4 Media Shakers hereby grants to the Publishers the revocable, non-exclusive, non-transferable right to use the Media Shakers Agency applications as well as the data contained therein, provided that this use complies with the stipulations of the law and takes place exclusively within the context of participating in Media Shakers Agency. In case of a termination of this Agreement – regardless the reason - the right of use set forth above will be revoked.
10.5 Publishers will not be granted any further rights of use. In particular, Publishers are not entitled to transmit the applications or the data contained therein to third parties, nor are they entitled to allow third parties to access such applications or data, nor may they modify or otherwise process such applications or data, incorporate them into another work, or use them in order to create data bases and/or information services of their own.
11. Indemnification in the Event of Breach of Agreement
Compliance with the provisions of this Agreement is essential for the operation of Media Shakers Agency. In the event of a serious breach of Agreement, Media Shakers reserves the right to take further legal steps in addition to terminating the Agreement. If Publishers or their Sub-Publishers violate these provisions and if third parties hold Media Shakers liable for such violation, Media Shakers is entitled to demand that such Publishers indemnify it against all costs and expenses it may incur as a result of the breach.
Such costs include, in particular, the compensation of damages of third parties and reimbursement of further expenses.
12. Liability and Limitation of Liability7
12.1 Media Shakers shall not be held liable for the content of websites of third-parties, nor shall it be liable for any damages or other failures resulting from any defects of the participants' software or hardware or their incompatibility with the Media Shakers system; Media Shakers shall also not be liable for damages resulting from the fact that the Internet was not available or malfunctioning.
12.2 Apart from that, Media Shakers shall be held liable only under the following circumstances, regardless of the legal grounds:
12.3 If one of its legal representatives or executives or other vicarious agents has acted intentionally or grossly negligently;
12.3.1 In the event of any culpable breach of an essential contractual duty of delayed performance or the impossibility of performance, in each case based on the respective merits. The expression "essential
contractual duty" describes a duty in the abstract, the fulfillment of which is an essential pre-requisite for the due implementation of the agreement, and that is a duty on whose fulfillment the respective other party can rely as a general rule.
12.3.2 In the event of liability pursuant to Section 12.2.2, this shall be limited, for financial losses and damages to property, to the amount of the typically foreseeable loss.
12.4 The above limitations of liability do not apply to cases of mandatory statutory liability, in particular liability under product liability law, liability for a guarantee that has been assumed, and liability for intentional or negligent injury to life, limb or health.
13. Modification of the Terms and Conditions in this Agreement
13.1 Media Shakers reserves the right to amend the provisions and term and conditions of this Agreement with Publishers that are minor in scope or nature, and to do so without citing any reasons, provided that such modifications do not lead to the agreement as a whole being restructured. Media Shakers will communicate, by e-mail, the modified conditions at least two weeks prior to the effective date. Publishers who do not object in text form (letter, e-mail, fax) to the modification within four (4) weeks after the receipt of the e-mail will be deemed to have accepted the respective modification. Media Shakers will specifically indicate the possibility of objecting to the modification and the consequences of the four-week deadline.
13.2 If the Publisher objects to the new (modified) Terms and Conditions for Publishers, Media Shakers' request to so modify them will be deemed to have been rejected. The agreement will then be continued without the proposed modification. The right of the parties to terminate their participation in the Media Shakers Agency remains unaffected hereby. The possibility of terminating the agreement will also be indicated specifically.
14. Final Provisions
14.1 The utilization of the Media Shakers Agency and its applications requires the use of special technical systems such as end user devices, software programs, transmission, telecommunications and other services provided by third parties, all of which may entail further costs. Media Shakers does not provide such end user devices, software programs, communication channels, telecommunications services or other services and therefore will not assume any liability for such services provided by third parties.
14.2 The rights and duties under the present agreement may only be transferred with the prior written consent of Media Shakers.
14.3 The present Agreement does not establish a partnership or company, it does not authorize either of the parties to make any legally binding declarations on behalf of both parties together, or on behalf of the respective other party, nor does it authorize them to place the respective other party under any obligation or to represent it in any other way.
14.4 This Agreement will be governed by and construed in accordance with the laws of the Republic of Cyprus when the venue for any dispute will be any the one determined by Media Shakers at its own exclusive and sole discretion.
14.5 Should any individual provision of this Agreement be of no effect, as a whole or in part, this shall not affect the validity of the remaining provisions. The invalid provision will be deemed replaced by that provision that is legally effective and comes closest, in the usual understanding, to the economic intent and purpose of the invalid provision. The same applies to any unintentional omission Notices - Except as provided elsewhere herein, both parties must send all notices relating to this Agreement in writing via overnight mail or facsimile: (a) to Media Shakers at email@example.com , and/or to Media Shakers US rep office with fax: +1 646.786.4341 and, (b) to Publisher, at the address or facsimile number listed on the Publisher Account. Notices shall be effective upon a facsimile confirmation, the notified party's actual receipt (or refusal to accept to receipt, if applicable), or five (5) days after the date of mailing.