Macbell
Affiliate Program Terms and Conditions
Macbell Corportion, India, provides you access to our
Macbell Affiliate Program subject to your compliance with
the terms and conditions below (“Agreement”).
Please read this Agreement carefully. By enrolling or participating
as an Macbell Affiliate (“Affiliate”) with Macbell
whereby you receive compensation from a Merchant based on
tracked actions for products or services, by placing Merchant
Links on your website, you, the Affiliate, agree to be bound
by these terms and conditions.
1. DEFINITIONS
The following terms shall have the meanings set forth
below
“Affiliate” means a person or company that
agrees to promote a Merchant's products or website on the
Merchant's Terms in exchange for payment.
“Affiliate Program” means a pay-for-performance
program where an Affiliate receives a commission for sending
a visitor to a Merchant Site or generating a Lead or Sale.
“Affiliate Site” means the Internet World Wide
Web presence operated by or for Affiliate, (as modified
to comply with the provisions of this Agreement, and future
versions, upgrades, successors and replacements thereof).
“Campaign” means a logical grouping of Events
through which Merchants manage their program. For example,
a campaign might be called ‘Book Sales’ and
include Events which record only sales for books.
“End User” means a user who clicks to the Merchant
Site from the Merchant Links.
“End User Data” means all information and data
of an End User, including, but not limited to, all tax return
data, name, address, telephone number and e-mail address.
“Event” means individual actions such as clicks
(the clicking of a link by an internet user) or sales within
each Campaign that are tracked and recorded in an Macbell
Transaction Table.
“Intellectual Property” means all industrial
and intellectual property rights existing from time to time
including any patents, design rights, registered designs,
trademarks, service marks, copyrights, moral rights, trade
secrets, know-how, and all applications and registrations
therefore, and all goodwill associated therewith.
“Lead” means when a user performs a specified
action such as filling out a form, registering, or downloading
from a Merchant's Site.
“Macbell Codes” are the HTML (HyperText Markup
Language, the authoring language used to create documents
on the World Wide Web) code and tags provided to the Affiliate
via the Macbell Affiliate Manager. These codes are intended
to be placed as provided into the HTML of approved Affiliate
websites.
“Macbell Transaction Table” means a table in
Macbell’s online database that contains information
about visitor actions related to Merchant Links and Affiliates.
“Macbell Transaction” means any Event caused
by the action of an End User which is recorded by Macbell
and written to the Macbell Transaction Table.
“Macbell Services” means the various related
content, links, products and services provided by Macbell
on or through the Macbell Site.
“Macbell Site” means the Internet World Wide
Web presence operated by or forMacbell, located on the Internet
through the http://www.macbell.in URL (as modified to comply
with the provisions of this Agreement, and future versions,
upgrades, successors and replacements thereof).
“Marks” means logos, trademarks, trade names,
service marks or other identifying emblems, words or designs
of Macbell or Merchant , as the case may be, to designate
and identify itself or the particular products or services
its offers.
“Merchant” means a person or company that places
links into the Macbell Site and agrees to pay Affiliates
for promoting their products or website via these links.
“Merchant Link(s)” means an advertisement in
the form of a banner, text link, or storefront displayed
on an Affiliate Site or in an email or newsletter. When
clicked, the link directs the user to a Merchant Site.
“Merchant Service(s)” means the product(s)
or service(s) offered by the Merchant through the Merchant
Site.
“Merchant Site” means the Internet World Wide
Web presence operated by or for Merchant, (as modified to
comply with the provisions of this Agreement, and future
versions, upgrades, successors and replacements thereof).
“Sale” means when an End User purchases a Merchant
Service.
“Service Level Minimums” means industry standard
service levels for like services, including, without limitation,
standards for supporting online transactions, providing
accurate and secure transmission of personal, credit card
and other information.
All other initially capitalized terms shall have the meanings
assigned to them in this Agreement.
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2. LICENSES/OWNERSHIP OF Macbell SITE
2.1 Rights Granted by Affiliate
(a) License; License Restrictions. Affiliate grants to
Macbell a nonexclusive, nontransferable, royalty-free (without
right to sublicense) license to use and display, during
the term of this Agreement, the Affiliate Marks, solely
for the purpose of linking to the Affiliate Site. Macbell
agrees that the Affiliate Marks are and will remain the
sole property of Affiliate and agrees not to contest the
ownership of such Affiliate Marks, nor misappropriate the
Affiliate Marks for Macbell’s own use. Affiliate reserves
all rights to control the use of the Affiliate Marks, and
Macbell shall not change or modify the Affiliate Marks in
any manner without prior written authorization from Affiliate.
(b) Reservation of Rights. Except as expressly granted
in this Agreement, Macbell shall have no other rights of
any kind in the Affiliate Marks or the Affiliate Site. Under
no circumstances will anything in this Agreement be construed
as granting, by implication, estoppel or otherwise, a license
to any of Affiliate’s Intellectual Property or proprietary
technology other than the use of the Affiliate Marks in
accordance with the terms of this Agreement. Macbell acknowledges
that the Affiliate Services are the sole property of Affiliate,
and this Agreement only grants a limited right to link to
the Affiliate Site under the terms and conditions of this
Agreement. The Affiliate Marks may not be used as a feature
or design element of any other logo unless agreed upon by
Affiliate.
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3. RIGHTS AND OBLIGATIONS OF THE PARTIES
3.1 Macbell’s Rights and Obligations
(a) Macbell shall meet the Service Level Guarantee.
(b) Macbell shall be solely and exclusively responsible
for all operation, hosting, and
maintenance on the Macbell Site.
(c) Macbell shall provide automated real-time tracking,
reporting and analysis of Events on
every Macbell Transaction recorded for the Affiliate.
(d) Macbell shall provide monthly commission processing
and payment for all qualified/active
Affiliates.
3.2 Affiliate’s Rights and Obligations
(a) Affiliate shall be solely and exclusively responsible
for all operation, hosting, and
maintenance on Affiliate Site(s).
(b) Affiliate may not modify Macbell Codes without prior
written consent from Macbell or the affected Merchant. Affiliate
agrees to use the Macbell Codes as provided. Affiliate may
not sell, reuse, or divulge any Macbell Code, except as
is necessary to partake in the Macbell Affiliate Program.
Requests for changes to Macbell Code(s) should be sent to
in accordance with section 12.7, or directly to the Merchant
through other means including electronic mail.
(c) Affiliate agrees and represents that all information
provided for the purpose of enrolling as an Affiliate will
be accurate, complete and current. Affiliate is responsible
for keeping contact information up to date, including but
not limited to financial information and contact emails.
(d) Affiliate represents and warrants that Affiliate Site
and content, (i) does not violate any law or regulation;
(ii) does not infringe in any manner any copyright, patent,
trademark, trade secret or other Intellectual Property right
of any third party; (iii) does not breach any duty toward
or rights of any person or entity including, without imitation,
rights of publicity or privacy, or has not otherwise resulted
in any consumer fraud, product liability, tort, breach of
contract, injury, damage or harm of any kind to any person
or entity; (iv) is not false or misleading; (v) does not
produce, provide or are in any manner related to pornographic
products or services (which Macbell shall have complete
discretion to define), or their subsidiaries or foundations
funded by such companies whose function is to improve acceptance
of such products by the public; and/or (vi) is neither defamatory,
libelous, militant, hateful, slanderous or threatening.
Macbell will be responsible for determining, in its sole
and absolute discretion, what acts and omissions violate
this policy, and which acts include activity that is deceptive
or fraudulent in nature.
(e) Affiliate may access Merchant material for each Event
through the account management section Macbell reserves
the right, in its sole discretion and without liability,
to reject, omit or exclude any Affiliate or website for
any reason at any time, with or without notice to the Affiliate
and regardless of whether such Affiliate Site was previously
accepted.
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4. EXCLUSIVITY
The Affiliate is not barred by this agreement from participating
in any other Affiliate Program offered by an Macbell competitor.
In addition, with Macbell, an Affiliate can join any Merchant
Affiliate Program subject to the approval of that Merchant
and any additional terms and conditions they may specify.
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5. PAYMENTS
5.1 Commission Fees
Affiliate will receive commission for Events based on the
reports from the commission structure offered by Merchant
(as such are offered from time to time) for all approved
Merchant Campaigns.
5.2 Payment Terms
(a) All payments are based on Macbell Transactions as defined,
accounted, and audited by Macbell.
(b) All accounts will be settled in Indian Rupees. No checks
will be issued for any amounts less than Rs.1000 (other
country USD 100). The minimum payment for Money Bookers
is also Rs.1000 (other country USD 100) if you opt for Money
Bookers. Any amounts less than Rs.1000 (other country USD
100) will carry over to the month. Every Affiliate account
(where applicable) must have a unique PAN Number.
(c) Affiliate’s right to access Affiliate account
with Macbell is subject to any limits established by Macbell,
or its contractors.
(d) Affiliate is responsible for maintaining the correct
contact and payment information associated with Affiliate
account. This must be done online using the Macbell Affiliate
Manager. Returned or cancelled payment bank/service fees
due to any error in Affiliate contact or payment information
are Affiliate’s responsibility, and will be deducted
from Affiliate account balance.
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6. REPRESENTATIONS, WARRANTIES AND COVENANTS
6.1 By Macbell
Macbell represents, warrants and covenants that: (i) it
has sufficient rights to grant Affiliate the rights and
licenses set forth herein; (ii) to the best of its knowledge,
the Macbell Services and the Macbell Site do not and will
not violate any applicable law or regulation; (iii) the
execution, delivery and performance of this Agreement by
it does not conflict with any agreement to which it is a
party or by which it may be bound; (iv) it has full legal
authority to enter into this Agreement and to carry out
the provisions hereof.
6.2 By Affiliate
Affiliate represents, warrants and covenants that: (i)
it has sufficient rights to grant Macbell the rights and
licenses set forth herein; (ii) to the best of its knowledge,
the Affiliate Services and the Affiliate Site does not and
will not violate any applicable law or regulation; (iii)
the execution, delivery and performance of this Agreement
by it does not conflict with any agreement to which it is
a party or by which it may be bound; and (iv) it has full
legal authority to enter into this Agreement and to carry
out the provisions hereof.
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7. DISCLAIMERS; LIMITATION OF LIABILITY
7.1 Disclaimer of Warranties
Except As Set Forth In Sections 3 and 6, Affiliate’s
Obligation To Meet Service Level Minimums, And Macbell’s
Obligation To Meet A Service Level Guarantee, Neither Party
Makes Any Warranties Of Any Kind, Either Express Or Implied,
As To The Affiliate Service Or The Macbell Service Including,
But Not Limited To, A Warranty Of Fitness For A Particular
Purpose Or Warranty Of Merchantability.
7.2 Limitation of Liability
Except As Provided In Sections 8 And 9, In No Event Shall
Either Party, Or Its Respective Affiliates, Subsidiaries,
Parent Companies Or Their Respective Officers, Directors,
Agents Or Employees, Be Liable To The Other Party For Any
Indirect, Incidental, Special, Exemplary, Potential Or Consequential
Damages (Including, Without Limitation, Loss Of Opportunity,
Loss Of Goodwill, Lost Profits Or Lost Revenues) Even If
A Party Has Been Previously Advised Of The Possibility Of
Such Damages.
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8. FORCE MAJEURE
A party shall not be considered to be in default in the
performance of any obligations under this Agreement when
a failure of performance shall be due to an uncontrollable
force. The term “uncontrollable force,” as used
in this Agreement, shall mean an unanticipated event which
is not reasonably within the control of the affected party
and which by exercise of reasonable due diligence, such
affected party could not reasonably have been expected to
avoid, overcome or obtain or cause to be obtained a commercially
reasonable substitute there for. Such causes may include,
without limitation, the following: flood, earthquake, tornado,
storm, fire, terrorist attack, explosion, public emergency,
civil disobedience, labor dispute, labor or material shortage,
sabotage, restraint by court order or public authority (whether
valid or invalid), and action or non-action by or inability
to obtain or keep the necessary authorizations or approvals
from any governmental agency or authority; however, no party
shall be relieved of its obligations hereunder, if its failure
of performance is due to removable or remediable causes
which such party fails to remove or remedy using commercially
reasonable efforts within a reasonable time period. Either
party rendered unable to fulfill any of its obligations
under this Agreement by reason of an uncontrollable force
shall give prompt notice of such fact to the other, followed
by written confirmation of that notice, and shall exercise
due diligence to remove such inability with all reasonable
dispatch.
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9. INDEMNIFICATION
9.1 By Affiliate
Affiliate agrees to indemnify, defend and hold harmless
Macbell and its officers, directors, employees, agents,
successors and assigns from and against any and all losses,
liabilities, damages, penalties and claims and all related
costs and expenses (including reasonable attorneys’
fees) related to claims made by third parties against Macbell:
(i) alleging that Affiliate’s Marks or other Intellectual
Property infringe the patents, copyrights, trademarks or
service marks or other Intellectual Property rights of such
third parties; (ii) arising out of or relating to the Affiliate
Service or the Affiliate Marks; or (iii) due to a breach
by Affiliate of its warranties, representations, obligations
or covenants or otherwise breaches this Agreement.
9.2 Procedures
The Indemnified Party shall (i) promptly notify the Indemnifying
Party in writing of such suit, claim, or proceeding; (ii)
give the Indemnifying Party reasonable information, assistance
and cooperation required to defend such suit, claim, or
proceeding; and (iii) allow the Indemnifying Party to control
the defense of any such action and all negotiations for
its settlement or compromise. The Indemnified Party may
be represented in the defense of any such claim, at the
Indemnified Party's expense, by counsel of the Indemnified
Party's selection. The Indemnifying Party shall have no
liability for settlements or costs incurred without its
consent. The Indemnifying Party shall not enter into any
settlement that imposes liability or restrictions on the
Indemnified Party without the Indemnified Party's prior
written consent, such consent not to be unreasonably withheld
or delayed.
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10. OWNERSHIP OF USER DATA; CONFIDENTIALITY
10.1 Confidentiality
Macbell and Affiliate agree that any and all information
identified by the other as “Confidential” and/or
“Proprietary”, or which, under all of the circumstances,
ought reasonably to be treated as Confidential and/or Proprietary,
will not be directly or indirectly disclosed to any third
person without the express consent of the other party for
a period of three (3) years following termination of this
Agreement and that neither party will make use of Confidential
Information except under the terms of this Agreement. These
confidentiality obligations shall not apply to any information
which: (i) is or subsequently becomes available to the general
public other than through a breach by the receiving party;
(ii) is already known to the receiving party before disclosure
by the disclosing party; (iii) is developed through the
independent efforts of the receiving party; (iv) the receiving
party rightfully receives from a third party without restriction
as to confidentiality or use; or (v) is requested pursuant
to a subpoena; provided, that the party responding to such
subpoena gives the other party reasonable notice and opportunity
to intervene to quash such subpoena.
10.2 Privacy of Consumer Financial Information
Notwithstanding anything in this Agreement to the contrary,
if it is necessary for Affiliate to disclose any End User
Data to Macbell for any reason, Macbell agrees that at no
time shall Macbell use or disclose any such End User Data
that Macbell may obtain in connection with this Agreement,
except as required by law; provided that nothing herein
shall require Affiliate to disclose End User Data to Macbell.
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11. TERM OF AGREEMENT AND TERMINATION
If Affiliate is dissatisfied with Affiliate account in
the Macbell Affiliate Program or with any of the terms and
conditions contained herein, Affiliate’s sole and
exclusive remedy is to terminate Affiliate account. Affiliate
may cancel participation in the Macbell Affiliate Program
at any time by sending notice in accordance with section
12.7.
11.1 Term
The term of this Agreement shall begin on the date the
Affiliate applies for an account and shall continue until
terminated by any of the actions enumerated in section 11.2.
11.2 Termination
This Agreement will terminate in the event of any of the
following:
(a) On the tenth (10th) day after a material breach, provided
one party gives the other written notice of a material breach
by the other of this Agreement and a request for a cure,
unless the breach is cured before that day;
(b) Immediately once notice of termination by either party
is received by the other party in accordance with section
12.7.
11.3 Effect of Termination
Upon termination of this Agreement, all licenses granted
by Affiliate hereunder shall automatically terminate.
11.4 Survival
Sections 5 (to the extent the payment obligations accrue
prior to termination), 7, 9, 10, 11.3 and 12 shall survive
any expiration or termination of this Agreement.
11.5 Suspension
Macbell reserves the right, at its sole discretion to suspend
the Affiliate if it suspects a material breach of section
3.2. If Macbell takes action to suspend, Macbell may do
so immediately, but Macbell is not relieved of its obligation
to notify the Affiliate per section 11.2(a).
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12. General
12.1 Choice of Law
The Parties agree that this Agreement shall be governed
by Indian Law.
12.2 Assignment
Affiliate may not assign all or any portion of this Agreement
without the prior written consent of Macbell, which consent
may be withheld at Macbell’s sole discretion.
12.3 Relationship of the Parties
No partnership, joint venture, employment, agency, franchise,
or other form of agreement or relationship is intended by
this Agreement. The parties shall be independent contractors
for all purposes in connection with this Agreement.
12.4 Entire Agreement
The parties agree that this Agreement constitutes the entire
agreement between the parties as of the date hereof with
respect to the subject matter hereof and supersedes all
prior and contemporaneous communications, whether oral or
written. The parties agree that this Agreement may be modified
or amended from time to time hereafter by Macbell as it
deems necessary and Affiliate agrees (in consideration for
Macbell agreeing to continue doing business with Affiliate)
to be bound by such amendments, however, no such modification
or amendment shall act to increase any financial obligation
which Affiliate may otherwise have to Macbell pursuant to
this Agreement.
12.5 Press Releases
Neither party shall issue any press release or announcement
relating to the relationship contemplated by this Agreement
without the prior written consent of the other party.
12.6 Counterparts
This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which
taken together shall constitute one and the same instrument.
12.7 Notices
All notices, requests, consents, and other communications
under this Agreement from Affiliate shall be in writing
and shall be deemed delivered (i) two business days after
being sent by registered or certified mail, return receipt
requested, postage prepaid or (ii) one business day after
being sent via a reputable nationwide overnight courier
service guaranteeing next business day delivery. If from
Macbell to Affiliate, immediately upon electronic mail to
the primary contact email address is deemed an acceptable
means of notification. In each case to the intended recipient
as set forth below:
If to Affiliate by electronic mail to the primary contact
e-mail address,
If to Northgate Technologies Ltd., JR Towers, 2nd Floor,
Banjara Hills, Hyderabad - 34, India, Attention: Via electronic
mail using the form available at http://www.macbell.in/contactus.php
or at such other address or addresses as may have been furnished
in writing by Macbell to the other Party in the manner set
forth in this section as deemed appropriate.
12.8 Section Headings
Section headings are for descriptive purposes only and
shall not be used to interpret the meaning of this Agreement.
12.9 Attorneys’ Fees
If either party fails to pay any amounts due under this
Agreement or otherwise breaches this Agreement and the non-breaching
party retains an attorney to collect such amounts or remedy
such breach, then the breaching party shall be obligated
to pay any amounts due herein including said non-breaching
reasonable attorneys’ fees incurred in collecting
such amounts and court costs.
12.10 Non-Waiver
No delay or omission of either party in exercising any
right accruing upon any default of the other party shall
impair any such right or be construed to be a waiver thereof,
and every such right may be exercised at any time during
the continuance of such default. A waiver by either of the
parties of a breach or a default under any of the terms
and conditions of this Agreement by the other party shall
not be construed to be a waiver thereof. A waiver by either
of the parties of a breach or a default under any of the
terms and conditions of this Agreement by the other party
shall not be construed to be a waiver of any subsequent
breach or default of any other term or condition of this
Agreement. No remedy provided in this Agreement.
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13 CPM Offers
CPM offers (banners, Text, skyscrapers and leaderboards)
must be placed above the fold of your site's Web pages.
You may not run the ad code at the bottom of the pages.
We treat as one impression per page even though you place
more than one.
All CPM statistics shown are subject to auditing.
CPM payments are made on a Monthly basis and the Total
Impressions will be set to zero after payment.
Impressions may trail up to 24 hours.
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14 CPC Offers
CPC offers (banners, Text) must be placed above the fold
of your site's Web pages. You may not run the ad code at
the bottom of the pages. We treat as one impression per
page even though you place more than one.
All CPC statistics shown are subject to auditing.
CPC payments are made on a Monthly basis and the Total
Click will be set to zero after payment.
Click may trail up to 24 hours.
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