This Moresby Media Affiliate Agreement (the "Agreement") is between Moresby Media Inc. and you ("You" or "Your"). By using the Moresby Media services You agree to the following terms and conditions:
1.1 If You promote products offered by Moresby Media, You:
1.1.1 Agree to only promote the products in English and other languages as offered and supported by Moresby Media or as otherwise approved in writing by Moresby Media. All content must be written in English language or the applicable languages that are offered and supported by Moresby Media;
1.1.2 Agree to include information on how an end-user can access information regarding Your Privacy Policy in English language or other languages as offered and supported by Moresby Media;
1.1.3 Agree that You will not promote, suggest, or imply any warranty or other policy that may conflict with Moresby Media’s sales and or return policy;
1.1.4 Agree that Your promotions of the product(s) will not involve unlicensed or unauthorized use of materials that may infringe on any copyright, trademark, or any other intellectual property rights of a third-party;
1.1.5 Agree that You will not engage in any activities that may interfere with Moresby Media’s tracking of commissions or the tracking of commissions payable to any third-party affiliates such as altering, modifying, eliminating, concealing or otherwise render inoperable or ineffective any site tags, source codes, links, pixels, modules or other data provided by or obtained from Moresby Media, or otherwise impact the natural flow of traffic to the product(s) offered by Moresby Media or any applicable third-party affiliates;
1.1.6 Agree that Your promotions of the product(s) will not be false or misleading in any way and shall be in compliance with applicable laws and regulations;
1.1.7 Agree that no promotional messages will be displayed in any third-party newsgroups, message boards, blogs, chatrooms or guestbooks, or any community-based website, or personal entry page that prohibits the promotion of third-party products or services through affiliate links;
1.1.8 Agree that Your promotions of the product(s) shall not include any terms and conditions that may conflict with Moresby Media’s terms and conditions which shall include without limitation, promising customer rebates, discount coupons, tickets, or vouchers in connection with their purchase of the product(s) through Moresby Media unless otherwise authorized and approved by Moresby Media in writing. You acknowledge and agree that Moresby Media is not obligated nor financially responsible for any customer rebates, discounts, coupons, tickets, or vouchers offered by You or any third-party affiliate in connection with any end user incentives to purchase the product(s) available through Moresby Media;
1.1.9 Agree that Your promotions of the products(s) will not include any material that contains viruses, spyware, adware, or any other computer code, files, or programs designed to interrupt, destroy or limit the functionality of any computer software, hardware, or telecommunications equipment;
1.1.10 Agree that Your promotions of the product(s) will not include any programs designed to send unsolicited advertisements, or any programs designed to harvest or collect the personal information of Internet users without the express consent of such users;
1.1.11 Understand that You and Your promotions of the product(s) are subject to review at any time and agree that Moresby Media may demand changes to Your product promotions, delivery pages, customer support information, or other related items if Moresby Media deems in its sole discretion that such changes are required in order for You to comply with the terms and conditions of this Agreement;
1.1.12 Understand that You and Your promotion of the product(s) are subject to review at any time, and failure to comply with any of these terms and conditions will constitute termination of Your rights to promote the products under this Agreement; and,
1.1.13 Agree to provide Moresby Media with current, active and working email addresses, your full name (forename and surname), physical street address, and telephone number(s) related to Your account to promote the product(s) and agree to respond to any communications sent from Moresby Media to You within twenty-four (24) hours. You agree that Moresby Media and its Advertisers may send communications to you, from time to time, at the email or physical address as they consider reasonably necessary.
1.1.14 Agree that Your website is not associated with or contain any illegal activity including without limitation deceptive or misleading advertising or piracy;
1.1.15 Agree that Your website does not contain any mechanisms that could be downloaded on to an end users computer without their knowledge or prior consent;
1.1.16 Affiliate may not use automatic redirection to SafeCart or any automatic method for saving and/or use of any cookies and/or tracking which has not been generated in the Moresby Media Affiliate Center or otherwise provided by Moresby Media.
1.1.17 Affiliate may not advertise advertiser products employing cookie stuffing techniques, including pop-ups, frames, images, JavaScript and/or stylesheets, and/or any type of software download and/or technology which attempts to intercept traffic or commissions to or from any other website.
1.1.18 Affiliate may not place Links in any manner which may (intentionally or unintentionally) mislead any Client.
2.1 In Your efforts in promoting the product(s) offered by Moresby Media, if You send or cause to be sent any messages to be delivered by electronic means (including without limitation electronic mail or other electronic communication methods) whether directly or indirectly, You agree to the following:
2.1.1 No promotional messages will be sent to any individual who has not explicitly requested or agreed to receive any communications specifically from You or Your company;
2.1.2 No promotional messages will be sent to any individual who has explicitly requested to not receive any further communications from You or Your company;
2.1.3 Any and all promotional communications shall be in full compliance with applicable local laws and regulations governing the promotion and advertising or products via commercial electronic mail or other similar means of electronic messaging (ex: CAN-SPAM Act 2003);
2.1.4 No electronic promotional messages will include any fraudulent, deceptive, false or misleading information regarding Your identity, Moresby Media, the promotion, the intent of the communication, subject matter, message headers, or the origin of the message;
2.1.5 Any and all promotional messages must include complete, valid, and accurate message headers indicating the origin of the promotional message;
2.1.6 No promotional messages will be delivered in conjunction with the use of any techniques designed to resist being closed by the end users, such as windows that reappear or generate new windows to appear;
2.1.7 No promotional messages will be delivered via means that exploit documented or undocumented security vulnerabilities on any client or server machine;
2.1.8 Any and all promotional messages delivered via electronic email will include clear, valid, and conspicuously displayed "From", "Subject", "Removal" or "Opt-Out" information and a current, valid return email address that enables the recipient of the promotional message to submit a request to no longer receive any further promotional messages from You or Your company. You agree that the return email address will be functional and continue to receive any requests from recipients to no longer receive any further promotional messages from You or Your company for a period no less than thirty (30) days from the date that the promotional message was delivered;
2.1.9 No promotional messages will be sent where the original manufacturer’s name or Moresby Media’s name appear in the "From" or "Subject" line of any email promotional transmission, unless otherwise authorized by the manufacturer or Moresby Media;
2.1.10 No promotional messages will be sent to any email addresses that were obtained through the following means; a) automated means from an Internet web site or proprietary online service operated by another third-party; b) generation of possible email addresses by combining names, letters, or numbers into numerous permutations; or c) email addresses obtained by spyware, viruses, or other means of bypassing system security or invading consumer privacy;
2.1.11 No promotional messages will be sent from, or made to appear to be sent from, any address that was obtained via the use of scripts or other automated means to register for multiple electronic mail accounts or online user accounts used to transmit unsolicited or misleading email messages;
2.1.12 No promotional messages will be sent, relayed, or transmitted by a protected computer or network that was accessed without proper authorization;
2.1.13 Any and all promotional messages delivered via electronic mail must include Your physical address, which cannot be a Post Office Box address;
2.1.14 You must indicate whether You use any incentive traffic and only offer incentives to end users to respond to any applicable ads that have otherwise been prior approved by or with the permission of Moresby Media and/or the applicable third-party advertiser.
2.1.15 You agree to comply with all promotional terms and conditions as provided by Moresby Media and as amended from time to time; and
2.1.16 You agree that Your promotional messages will not infringe on any copyright, trademark, or any other third-party intellectual property rights.
3.1 If You are promoting a product offered by Moresby Media, Moresby Media agrees to pay any applicable commissions and fees to You subject to Moresby Media’s payment terms and conditions for each promotional offer as further defined in the Moresby Media control panel or interface. Commissions will only be earned on completed actions, and only after Moresby Media has received payment for the action. "Action" as defined herein means an end-user’s completion of an action such as a click, click-through, sale, registration, impression, or lead as further defined by Moresby Media.
3.2 Moresby Media is under no obligation to pay You any commissions or fees if Moresby Media has not received payment for the applicable actions. In the event of non-payment to Moresby Media, and Moresby Media decides in its sole discretion to not pay any earned commissions or fees to You, Your recourse for any earned commissions or fees not paid is to contact and make a claim against the applicable third parties or originating product/service advertiser that is responsible for payment of the actions t Moresby Media.
3.3 Moresby Media may reverse any action generated by You if Moresby Media determines in good faith that the following circumstances have occurred which shall include without limitation duplicate actions, fraudulently generated actions, non-payment, Your failure to comply with the terms and conditions of this Agreement, or any product returns, refunds or credit card chargebacks. Action reversals may be applied at any time and at the sole discretion of Moresby Media, including actions during a period where payment has already been made to You.
3.4 You will be responsible for paying and remitting any income taxes or any other applicable taxes on Your commissions paid by Moresby Media.
3.5 You understand and agree that Moresby Media may temporarily or permanently seize all funds in Your Moresby Media account if we determine in good faith that Your account is associated with:
3.5.1 Any illegal activities;
3.5.2 False and/or misleading representations, or other violations of applicable local laws and regulations;
3.5.3 Disregard for, or breach of Moresby Media’s rules or policies;
3.5.4 Claims or suits against Moresby Media or its employees; or
3.5.5 Threats, abusive language, harassment, or other defamatory or slanderous behavior against Moresby Media or its employees.
3.6 You understand and agree that Moresby Media may temporarily hold a portion of the funds in Your Moresby Media account if we determine in good faith that such action is required to secure the payment and performance of all liabilities, obligations, and indebtedness that You may incur with Moresby Media including without limitation reasonable legal fees and costs.
3.7 You understand and agree that Moresby Media will not make any wire payments to a banking institution that is situated in a country not included in our list of approved countries, nor will Moresby Media send cheques to addresses that are not situated in this list of approved countries. This list can be found on our Affiliate Sign-Up webpage, under ‘Country’ in the ‘Payment Information’ section or is available from Moresby Media upon written request.
4.1 You may terminate this Agreement at any time by providing written notice to Moresby Media.
4.2 Moresby Media may terminate this Agreement immediately if You breach any term or condition of this Agreement and fail to cure that breach within two (2) business days after receiving written notice of the breach.
4.3 Moresby Media may terminate this Agreement without cause by giving You no less than thirty (30) days prior written notice.
4.4 Moresby Media may, at our sole discretion, immediately and indefinitely disable your account at any time if we have reason to believe that your actions as an affiliate may cause financial loss or may incur legal liability for you, any associated entities such as customers and advertisers, or Moresby Media.
4.5 Upon the termination of this Agreement, You agree to immediately cease using any Moresby Media materials and offering any promotional messages.
4.6 While the Affiliate remains an affiliate of Moresby Media in accordance with the terms and conditions of this Agreement and for the one year period following the date upon which he, she or it ceases for any reason to be an affiliate of Moresby Media, the Affiliate will not undermine the goodwill of Moresby Media or otherwise, directly or indirectly, solicit, entice or attempt to solicit or entice any other Moresby Media advertiser, client, affiliate or employee into entering into a contractual or other relationship with the Affiliate; any company, partnership, business or venture in which the Affiliate is directly or indirectly involved or through which the Affiliate may conduct business; or any Moresby Media competitor, in connection with any business or service which competes with any business in which Moresby Media is engaged or with any service which Moresby Media may provide, from time to time.
5.1 If You are promoting products offered by Moresby Media, You agree to indemnify and hold harmless Moresby Media from and against any damages and costs suffered by Moresby Media in connection with any claims, actions, proceedings, or demands brought by parties arising out of or relating to Your actions under this Agreement including without limitation, the promotion, marketing and advertising, and sales of the product(s).
6.1 You agree to assume full responsibility for using the Moresby Media services. The Moresby Media services are provided "AS IS" with no warranty except as otherwise stated in writing by Moresby Media. Moresby Media makes no warranty, express or implied, written or oral, including the implied warranties of advertiser ability or fitness for a particular purpose, or that the Moresby Media services will provide a desired outcome.
6.2 You are not authorized to make any warranty or representation on behalf of Moresby Media for any purpose.
6.3 You do not have the power or authority to obligate or attempt to obligate Moresby Media in any manner whatsoever.
6.4 You shall not represent to any person that You are the agent of Moresby Media, and immediately correct any misunderstanding as to Your status.
7.1 In no event shall Moresby Media, to the maximum extent permitted by law, be liable to You (in contract, tort (including negligence) or otherwise) for any indirect, special or consequential loss or damage, interruption of business (including without limitation system outages, server downtime, and affiliate/advertiser link errors), or for any loss of profit, goodwill, business reputation or loss of opportunity arising out of or in relation to this Agreement or the performance or non-performance of it even if the possibility of such loss had been brought to Your attention. The maximum extent of either party’s liability to the other, whether in contract, tort (including negligence) or howsoever arising under or in relation to this Agreement or the performance or non-performance of a party’s obligation under this Agreement shall be limited to $US 500.00. No action, suit, or proceeding shall be brought against either party more than one (1) year following the date of service.
8.1 This Agreement shall be governed exclusively by the laws by the Province of British Columbia and the laws of Canada applicable therein, excluding its conflict of law rules and the United Nations Convention on Contracts for the International Sale of Goods. You agree that any claim or suit against Moresby Media arising out of or related to this Agreement must be brought non-exclusively in the Courts of the Victoria, British Columbia, and any competent Courts of Appeal therefrom.
9.1 No provision of this Agreement shall be deemed waived, amended or modified by You, unless such waiver, amendment or modification is in writing and signed by Moresby Media. The failure of a Moresby Media to enforce at any time any of the provisions of this Agreement, or the failure to require at any time performance by You of any of the provisions of this Agreement, shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the ability of Moresby Media to enforce each and every such provision thereafter.
9.2 Moresby Media reserves the right to modify the terms and conditions of this Agreement at any time without notice to You. Moresby Media will promptly post any changes to these terms and conditions on its web site and it is Your responsibility to periodically review this Agreement for any changes to ensure that You understand and are in full compliance of these terms and conditions.
10.1 The relationship between the Moresby Media and You hereunder is that of independent contractors and nothing herein will be deemed to create a joint venture, partnership or agency relationship between the parties for any purpose.
11.1 Moresby Media is entitled to assign this Agreement without Your consent or notice to You, provided that the party to whom this Agreement is assigned agrees to acknowledge Your rights under this Agreement.
12.1 You agree to keep confidential and refrain from disclosing information that Moresby Media in its sole discretion deems to be of confidential nature including without limitation commission rates, email addresses, and service fees. Your obligation to protect any confidential information does not apply to any information which You can establish to have been publicly known through no action on Your part, is disclosed upon prior written authorization of Moresby Media, or is required to be disclosed by law, or to a competent court, government or regulatory body having the right to same, provided that the Moresby Media is notified immediately of such required disclosure and given the opportunity to seek a protective order.
13.1 No default, delay or failure to perform on the part of either party shall be considered a breach of this Agreement if such default, delay, or failure to perform is shown to be due entirely to causes beyond reasonable control of the party charged with a default, including, but not limited to, causes such as strikes, lockouts or other labor disputes, riots, civil disturbances, actions or inaction’s of governmental authorities or suppliers, epidemics, war, embargoes, severe weather, fire, earthquakes, acts of God or the public enemy, or any other cause beyond the reasonable control of such party; provided that the party whose performance is affected by such event gives the other party written notice within (5) business days of such event or occurrence.
14.1 If any provision of this Agreement is unenforceable or invalid for any reason whatever, such unenforceability or invalidity shall not affect the enforceability or validity of the remaining provisions of this Agreement and such provision shall be severable from the remainder of this Agreement.