Macbellads Corportion, India, provides you access
to our Macbellads Affiliate Program subject to your
compliance with the terms and conditions below
(“Agreement”). Please read this Agreement carefully.
By enrolling or participating as an Macbellads Affiliate
(“Affiliate”) with Macbellads 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 Macbellads 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.
“Macbellads 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 Macbellads Affiliate Manager.
These codes are intended to be placed as provided
into the HTML of approved Affiliate websites.
“Macbellads Transaction Table” means a table in Macbellads’s
online database that contains information about
visitor actions related to Merchant Links and
Affiliates.
“Macbellads Transaction” means any Event caused by
the action of an End User which is recorded by
Macbellads and written to the Macbellads Transaction Table.
“Macbellads Services” means the various related content,
links, products and services provided by Macbellads
on or through the Macbellads Site.
“Macbellads Site” means the Internet World Wide Web
presence operated by or forMacbellads, located on the
Internet through the http://www.macbellads.com 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 Macbellads 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 Macbellads 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.
(a) License; License Restrictions. Affiliate
grants to Macbellads 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. Macbellads 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 Macbellads’s own use. Affiliate
reserves all rights to control the use of the
Affiliate Marks, and Macbellads 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, Macbellads 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. Macbellads 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.
(a) Macbellads shall meet the Service Level Guarantee.
(b) Macbellads shall be solely and exclusively responsible
for all operation, hosting, and
maintenance on the Macbellads Site.
(c) Macbellads shall provide automated real-time tracking,
reporting and analysis of Events on
every Macbellads Transaction recorded for the
Affiliate.
(d) Macbellads 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 Macbellads Codes without
prior written consent from Macbellads or the affected
Merchant. Affiliate agrees to use the Macbellads Codes
as provided. Affiliate may not sell, reuse, or
divulge any Macbellads Code, except as is necessary
to partake in the Macbellads Affiliate Program. Requests
for changes to Macbellads 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 Macbellads
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. Macbellads 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
Macbellads 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.
The Affiliate is not barred by this agreement
from participating in any other Affiliate Program
offered by an Macbellads competitor. In addition, with
Macbellads, an Affiliate can join any Merchant Affiliate
Program subject to the approval of that Merchant
and any additional terms and conditions they may
specify.
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 Macbellads Transactions
as defined, accounted, and audited by Macbellads.
(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 Macbellads is subject to any limits established
by Macbellads, 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 Macbellads 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.
Macbellads 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 Macbellads Services
and the Macbellads 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 Macbellads
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.
Except As Set Forth In Sections 3 and 6, Affiliate’s
Obligation To Meet Service Level Minimums, And
Macbellads’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 Macbellads 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.
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.
Affiliate agrees to indemnify, defend and hold
harmless Macbellads 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 Macbellads:
(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.
Macbellads 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 Macbellads for any
reason, Macbellads agrees that at no time shall Macbellads
use or disclose any such End User Data that Macbellads
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 Macbellads.
If Affiliate is dissatisfied with Affiliate
account in the Macbellads 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 Macbellads 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
Macbellads reserves the right, at its sole discretion
to suspend the Affiliate if it suspects a material
breach of section 3.2. If Macbellads takes action to
suspend, Macbellads may do so immediately, but Macbellads
is not relieved of its obligation to notify the
Affiliate per section 11.2(a).
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 Macbellads, which consent may be withheld at Macbellads’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 Macbellads as it deems
necessary and Affiliate agrees (in consideration
for Macbellads 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 Macbellads 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
Macbellads 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.macbellads.com/work/contactus.php
or at such other address or addresses as may have
been furnished in writing by Macbellads 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.
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.
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.
