This Marketing Agreement contains the complete terms and conditions that apply to an individual's or entity's participation in the Network Media Services Affiliates Program. As used in this Agreement, "we" means NMS Affiliates and its operators and "you" means the individual or entity which applied as the "beneficiary" for payment purposes on our online signup form or in our records as provided by you.
1.1 By linking to or through www.nmsaffiliates.com, you agree to be bound by all the terms and conditions set out in this agreement. Network Media Services and its operators will automatically become counter-party to this Agreement.
1.2 If you do not wish to accept all the terms and conditions of this agreement, then you must not link through to www.nmsaffiliates.com.
2.1 "Sites" means the Network Media Services (http://www.nmsaffiliates.com) website(s) and its related pages.
2.2 "Customer(s)" means a person that enters the sites via your campaign(s).
2.3 "Campaign(s)" means the unique tracking URLs that we provide exclusively to you, during the term of this agreement, through which we track your efforts and calculate your marketing fees.
2.4 "Banners and text links" means the graphical artwork or text that will be directed to the affiliate sites through your campaign, to permit a customer or sub-affiliate to hyperlink from your website.
2.5 "Purchase(s)" means funds transferred by customers to their site account.
2.6 "Redeem(s)" means any and all funds withdrawn or cashed-out by customers from their site account plus any purchases reversed (or credits given) by us, at our sole discretion, to negate fraud, error, customer non satisfaction or through charge backs.
2.7 "Net Revenue" will mean the sum of purchases less redeems generated on your campaign(s) based solely on our log files. Net Revenue shall include all license fees only excluding any hosting costs.
2.8 "Marketing Fees" is the percentage of Net Revenue due and payable to you, at the end of each calendar month, based solely on our system's data.
2.9 "Spam" means emails and messages that are sent by you, directly or indirectly, which: 1), contain false or misleading statements; 2), do not truthfully identify the source or the originating IP Address; or 3), do not contain an online and real time remove option.
2.10 "Fraud Traffic" means purchases or traffic generated at the site through illegal means or in bad faith to defraud the system, regardless of whether or not it actually causes us harm. Fraud traffic includes but is not limited to Spam, false advertising and unauthorized use of any third party copyrights or trademarks.
3.1 Identity and Disclosure. You must provide true and complete information to us at all times; including but not limited to, your identity, contact information, payment instructions, nationality, residency, location of Banners and Text Links and any other information that we may request from time to time.
3.2 Marketing Activities. You will, at your own cost and expense, establish Banners and Text Links to our software and/or affiliate sites. We will provide you the guidelines, graphical artwork and permitted text to use in linking to us. To permit accurate tracking, reporting and Marketing Fee accrual, we will provide you with unlimited unique campaigns for your use only. It is your responsibility to test that you have linked up correctly as we are not liable for your failure to link up properly.
3.3 Commercial Use Only. This Marketing opportunity is for commercial use only, and you may not make purchases, directly or indirectly, through your campaign for your own personal use or to fraudulently increase the Marketing Fees payables to you. Transactions made in violation of this provision will be deemed fraud traffic and we will deduct such purchases or traffic from your Marketing Fees.
3.4 Responsible Marketing. You will be solely responsible for your own websites and for the material appearing on them. You represent and warrant that you will not place Banners or Text Links to us on any website that contains any material which is libellous, unlawful or otherwise unsuitable. Unsuitable sites include but are not limited to websites which target persons under 18 years of age, display child pornography or other illegal acts, promote violence, promote discrimination based on race, sex, religion, nationality, disability, sexual orientation or age, promote any illegal activities and/or violate the intellectual property rights of others.
3.5 Good Faith Marketing. You will not knowingly or unknowingly benefit from known or suspected Fraud Traffic. Even if you did not knowingly generate the Fraud Traffic, we reserve the right to withhold the amount generated by the Fraud Traffic from your Marketing Fees.
3.6 Approved Banners and Text Links. We will make available to you graphic images and text for purposes of linking customers from your website to our home page through your campaign. These pre approved Banners and Text Links are available on our banner pages. You may NOT modify these graphic images or text, or any other of our images, in any way. You may not issue any press release with respect to this Agreement or your participation in this marketing program without our prior written consent.
3.7 Intellectual Property Rights and License. During the term of this Agreement only, we grant you a terminable, non-exclusive, non-transferable right to use the Banners and Text Links described in Section 3.6 above solely for connecting customers and/or sub-affiliates to us through your campaign. You may not take any action that may alter our rights in our marks, render the same generic or otherwise weaken the validity and good will of our marks.
3.8 Indemnification. You will defend, indemnify and hold us and our officers, directors, employees and representative harmless from and against any and all liabilities, losses, damages and costs, resulting from or arising from, your breach of this Agreement.
3.9 Customer Information. Upon signing an agreement, a lead customers will become our customer, and accordingly, all of our rules, policies and operating procedures will apply to them. We may at our sole discretion refuse to serve (or to close the account(s) of) any customer(s). Further, all data relating to the customers will remain our sole and exclusive property and you acquire no right to such information.
3.10 Publicity, Email and Spam Policies. You shall not create, publish, distribute or permit any written material that makes reference to us, without first submitting such material to us and receiving our written consent.Be careful about your advertising methods using email. NMS Affiliates will not tolerate any forms of spam. We will hear both sides of a spam complaint but we will remove one affiliate before we risk all affiliates losing email privileges. In the event an affiliate is charged with spamming practices, Network Media Services shall not be held liable for any legal action taken again said affiliate nor be financially responsible for fines owed by said affiliate.
4.1 Reports. We will track and report customer and sub-affiliate activities as necessary to summarize customer activity for purposes of calculating your Marketing Fees. The form, content and frequency of the reports may vary from time to time at our sole discretion. Generally, you will be provided with remote, unique password protected, online access to the total number and amount of all Purchases and Redeems, per each of your campaign(s) on a daily basis.
4.2 Tracking. When a new customer comes to the software site through your campaign, our system records the customer as yours based on a tracking system to ensure as close to 100% tracking as possible. In pursuit of state of the art systems, we may at any time change how the tracking is done as we in our sole discretion decide from time to time. Once an account is actually opened, then the account is permanently tagged with your campaign so that all subsequent activity relating to that account will be credited to you via our database until the account is closed or this agreement is terminated, whichever occurs first.
4.3 Marketing Fees. You will be paid for your marketing efforts based upon the agreed percentage of Net Revenue generated on your campaign(s).
4.4 Time for Payment for NMS Affiliates. We pay all Marketing Fees within fifteen (15) days of the close of each calendar month using your chosen payment method. You will be required to submit a payment request from the system unless you have configure automatic payment requests.
4.5 Payment Minimums. You will only be sent the money if the amount due is more than £100.00. However, if the Marketing Fees payable to you are less than £100.00 in any calendar month, then we may hold those fees until the total amount due is more than £100.00 (or if earlier) until this Agreement is terminated.
4.6 Monthly Statement. A monthly statement of how your Marketing Fees were calculated can be created and viewed in your affiliate account. You will have thirty (30) days from receipt of each statement to dispute that statement, which must be submitted to firstname.lastname@example.org in writing with details as to the reason for dispute. Deposit of the amount tendered will be deemed full and final acceptance thereof.
5.1 Term and Termination. This Agreement will take effect when you activate a link to our site and will be continuous unless and until either party notifies the other party, in writing, that it wishes to terminate the agreement, in which case, the agreement will terminate immediately. TERMINATION IS AT WILL BY EITHER PARTY.
5.2 Effect of Termination. The following will apply upon the effective date of termination:
-(a) You will remove all banners and text links to our site and/or we may disable any or all of your campaigns;
-(b) All rights and licenses given to you under this agreement will terminate immediately;
-(c) You will return all confidential information and cease use of any of our trade names, trademarks, service marks, logos, banners and other designations of nmsaffiliates.com;
-(d) We may withhold Marketing Fees for up to one hundred and eighty (180) days to ensure that the correct amount is paid and that any fraud has been reversed;
-(e) If the link remains open or if customers obtained through the campaigns are still allowed to play and repurchase at our site this will not constitute a continuation or renewal of this agreement;
-(f) You will be entitled only to those unpaid Marketing Fees, if any, earned by you on or prior to the date of termination. You will not be entitled to Marketing Fees with respect to customers activities made after the termination date.
5.3 Suspension of Campaigns. In the event you breach any provision of this Agreement and/or we receive a complaint against a particular campaign, we may in our sole discretion, disable that particular campaign, with or without notice, temporarily or permanently. In such cases, it is our sole option to suspend or disable your links on a campaign by campaign basis rather than completely terminating this agreement. The fact that we chose to leave some campaigns open does not entitle you to have all campaign(s) operational or reactivated, nor does it entitle you to compensation for the disabled campaigns.
6.1 No Warranties. WE DO NOT WARRANT THAT OUR SYSTEM, NETWORK, SOFTWARE OR HARDWARE (OR THAT PROVIDED TO US BY THIRD PARTIES) WILL BE ERROR-FREE OR UNINTERRUPTED. WE MAKE NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE QUALITY, MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE OR SUITABILITY OF OUR SYSTEM, NETWORK, SOFTWARE OR HARDWARE (OR THAT PROVIDED TO US BY THIRD PARTIES). WE (OR OUR PROVIDERS OR UNDERLYING VENDORS) ARE NOT REQUIRED TO MAINTAIN REDUNDANT SYSTEM(S), NETWORK, AND SOFTWARE OR HARDWARE.
6.2 Billing and Collection Limitations. We may in our sole discretion, with or without notice, use any available means to block or restrict certain customers or purchases so as to reduce the number of fraudulent, unprofitable purchases or for any reason whatsoever, including but not limited to daily or monthly purchase limits, address verification or negative and positive credit card databases. We do not guarantee or warrant the success of such fraud prevention efforts.
6.3 Liability Limitations. Our obligations under this agreement do not constitute personal obligations of the directors, officers, employees or shareholders of NMS Affiliates. Any liability arising under this agreement will be satisfied solely from the revenues generated hereunder. Our liability is limited to direct damages, and in no event will we be liable for any indirect, special, incidental, consequential or punitive loss, injury or damage of any kind (regardless of whether we have been advised of the possibility of such loss).
7.1 Independent Investigation. YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF MARKETING OUR SITES AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.
7.3 Non Exclusive. YOU UNDERSTAND THAT WE MAY AT ANY TIME (DIRECTLY OR INDIRECTLY), ENTER INTO MARKETING TERMS WITH OTHER WEBSITES OR MARKETERS ON THE SAME OR DIFFERENT TERMS AS THOSE PROVIDED TO YOU HEREIN AND THAT SUCH OTHER WEBSITES OR MARKETERS MAY BE SIMILAR AND EVEN COMPETE WITH YOU. YOU UNDERSTAND THAT WE MAY RE DIRECT TRAFFIC AND USERS FROM OUR SITE TO ANY OTHER WEBSITE THAT WE DEEM APPROPRIATE IN OUR SOLE DISCRETION, WITHOUT ANY ADDITIONAL COMPENSATION TO YOU.
8.1 Notices. All notices pertaining to this Agreement will be given by email as follows: to us at email@example.com; and, to you at address provided on our online signup form (or as subsequently updated by you to us in the event of change).
8.2 Relationship of Parties. There is no relationship of exclusivity, partnership, joint venture, employment or franchise between you or us under this agreement. Neither party has the authority to bind the other or to incur any obligation on the other's behalf, except as expressly provided herein. Nothing in this Agreement will be construed to provide any rights, remedies or benefits to any person or entity not a party to this agreement.
8.3 Assignment. This Agreement and the rights and obligations hereunder may not be assigned by you without our express written consent.
8.4 Entire Agreement. This Agreement embodies the complete agreement and understanding of the parties hereto with respect to the subject matter hereof and supersedes and pre-empts any prior understandings or agreements between the parties, written or oral, which may be related to the subject matter hereof. The headings in this agreement are for convenience only and will have no effect on the construction of this agreement.
8.5 Modification. We may modify any of the terms of this Agreement at any time, in our sole discretion, by emailing you a change notice or by posting the new agreement on our site. Modifications may include, for example, changes in the scope of available Marketing Fees, Marketing Fee percentages, time for payment and marketing rules. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING POSTING OR NOTICE OF CHANGE WILL BE DEEMED BINDING ACCEPTANCE OF THE MODIFICATION.
8.6 Sever ability/waiver. Whenever possible, each provision of this agreement will be interpreted in such a manner as to be effective and valid under applicable law but, if any provision of this agreement is held to be invalid, illegal or unenforceable in any respect, such provision will be ineffective only to the extent of such invalidity, or unenforceability, without invalidating the remainder of this agreement or any provision hereof. No waiver will be implied from conduct or failure to enforce any rights and must be in writing to be effective.
8.7 Governing Law. The validity of this Agreement, its construction, interpretation, and enforcement, and the rights of the parties hereto will be determined under, governed by, and construed in accordance with the laws of United Kingdom.
8.8 Arbitration. Any controversy or claim arising out of or relating to this agreement, or breach of this agreement, will be settled by binding arbitration, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction. There will be one arbitrator, mutually agreeable to the parties, or if the parties cannot agree on an arbitrator, then a court of competent jurisdiction will appoint one. The losing party will pay all the expenses of the arbitration, including legal fees.
8.9 Force Majeure. The parties' obligations under this agreement are subject to and neither party will be liable for, failure to perform, damage, or malfunction of any equipment, or any consequences thereof occasioned by or due to fire, flood, water, the elements, labour disputes, power failures, explosions, governmental actions, unavailability of transportation, acts or omission of third-parties, or any other causes beyond the party's reasonable control.
IN WITNESS WHEREOF, you expressly agree to the terms and conditions of this agreement by activating your Campaign(s) to our Site(s).