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TERMS AND CONDITIONS
The following terms and conditions (this "Agreement") is a legal agreement between Adsimilis B.V. ("Adsimilis") and the Publisher (the "Publisher"). Adsimilis and the Publisher may also be individually referred to herein as a "Party" and collectively as "Parties." Adsimilis reserves the right to change these Terms and Conditions at any time.

1. Approval of Publisher

Registration with Adsimilis shall not confer any right/s on the Publisher to market or promote any programs made available by Adsimilis on behalf of its clients (the "Advertisers"). Participation by the Publisher in the Adsimilis affiliate marketing program is subject to review and approval by Adsimilis in writing. All prospective publishers need formal approval in writing from Adsimilis before they can become Publishers. Adsimilis reserves the right to withhold or refuse approval for any reason whatsoever at Adsimilis' sole and absolute discretion. Once the Publisher has been accepted into the program, the Publisher's continued right to participate therein is conditional upon the Publisher's ongoing compliance with all the terms and conditions of this Agreement. Failure by the Publisher to observe the terms and conditions of this Agreement will disqualify the Publisher from participating in the program.  Adsimilis can withdraw approval of a Publisher at any time for any reason whatsoever in its sole and absolute discretion.

2.  Service

The Publisher will display the Advertisement and perform performance marketing services as allowed in the offer description and restrictions. "Advertisement" means the advertisement, including any copy including questions and or text ads, graphics, sound, video, programming code/s and/or other content that comprises the Advertisement, as well as the websites to which an Advertisement is linked if applicable. Adsimilis hereby grants to the Publisher for the duration of this Agreement a non-exclusive, royalty-free, worldwide right and license by all means and in any media, whether now known or hereafter discovered, to use, reproduce, distribute, publicly perform, publicly display and digitally perform such Advertisement and all its constituent parts.

3. Qualified Lead

Qualified Leads are prospects who meet Adsimilis' screening criteria and who provide their complete contact data. The Publisher will be paid on a delivered per lead basis which means when a user agrees through a pre-approved opt in method to be contacted. In the case of any dispute between the Parties as to the number of Qualified Leads, Adsimilis' number of Qualified Leads as determined by Adsimilis will stand and take precedence.

4. Lead Validation Procedure

Adsimilis will verify each Qualified Lead delivered by the Publisher. Upon receipt, all Qualified Leads will be checked for data validity (i.e. containing valid data inputs for the fields specified in the Insertion Order) and uniqueness of data. Adsimilis reserves the right to send an auto-responder to all respondents re-confirming their request for information. Any objections from respondents (about the email, or the offer) will be raised to the Publisher, who will respond to Adsimilis within 5 (five) business days thereafter.

5. Creatives

When agreed in the offer description, the Publisher will prepare creatives and make sure the creatives adhere to the restriction/s. Any use of images that the Publisher does not own the rights to is prohibited. When the Publisher is notified in writing by Adsimilis these must be taken down or removed within 24 (twenty four) hours after such notification and failure by the Publisher to remove or take same down will result in termination of this Agreement. No compensation of leads will be provided to the Publisher.

6. Creative Changes

In the event that Adsimilis delivers creatives then the editing of Adsimilis' creatives is strictly prohibited, without the prior written approval of Adsimilis. Creative includes, but is not limited to, text ads, graphic ads, from and subject line, any copy associated with the campaign including survey questions and answers. Any changes to the creatives, without the prior written approval of Adsimilis will result in the loss of payment of Leads.

7. Compliance

It is the obligation of the Publisher to prove to Adsimilis that they are not committing fraud. Adsimilis will hold the payment to the Publisher in 'Pending Status' until the Publisher has satisfactorily provided evidence that the Publisher is not defrauding the system.

Adsimilis can flags accounts that: Have click-through rates that are much higher than industry averages and where solid justification is not evident; Have only click programs generating clicks with no indication by site traffic that it can sustain the clicks reported; Have shown fraudulent leads as determined by its clients or Use fake redirects, automated software, and/or other fraudulent mechanisms to generate clicks or leads; Have used any incentives to procure clicks, leads or sales;  Have provided leads obtained other than through the intended consumer action.  If the Publisher fraudulently adds leads or clicks or inflates leads or clicks by fraudulent traffic generation (such as pre-population of forms or mechanisms not approved by Adsimilis or use of sites in co-registration campaigns that have not been approved by the Advertiser,) as determined solely by Adsimilis, the Publisher will forfeit its entire commission for all programs and its account will be terminated. If the Publisher is unable to prove to Adsimilis that the Publisher is not committing fraud, the Publisher will forfeit its entire commission for all programs and the Publisher's account will be terminated. Adsimilis reserves sole judgment in determining fraud. If the Publisher is notified that fraudulent or non-compliant activities may be occurring on its media and the Publisher fails to take prompt action to stop the fraudulent activities, then, in addition to any other remedies available to Adsimilis, the Publisher shall be responsible for all costs and legal fees arising from these fraudulent or non-compliant activities, including, without limitation, legal expenses (on an attorney and own client basis) incurred by Adsimilis as a result thereof and all direct and indirect damages that Adsimilis incurs as a result of possible disputes, settlements and/or legal proceedings with Advertisers. In addition, in the event that the Publisher has already received payment for fraudulent activities, Adsimilis reserves the right to seek credit or remedy from future earnings or to demand reimbursement from the Publisher.

8. Term & Target Launch

The Term of this Agreement will be one (1) month from the target launch of the initial campaign as noted in the Agreed Offer. The Agreement may continue thereafter by mutual consent of both Parties in writing but may be terminated by either Party for any reason whatsoever after the one (1) month period as recorded above. All legitimate moneys due to the Publisher will be paid during the next billing cycle, provided that the Publisher meets minimum payment thresholds as defined by Adsimilis and provided the correct banking information has been submitted to Adsimilis. If the Publisher defrauds the system then payment will not be made which will be determined solely by Adsimilis.

9. Payment

Adsimilis pays out on its own numbers as reported and generated in its tracking system used by the Publisher, unless otherwise noted. The Publisher agrees that payment will be owed from the applicable Advertiser, and that corresponding payments shall be made by Adsimilis out of the funds actually collected by Adsimilis from the applicable Advertiser. Adsimilis shall have no payment obligation to the Publisher where the Advertiser has not remitted sufficient payments. Until such time as the Advertiser has made payment in full to Adsimilis, any payment/s to the Publisher will be deemed a pre-payment and can be re-claimed by Adsimilis from the Publisher which funds shall be returned to Adsimilis within 5 (five) business days thereafter.

10. Payment Term

Adsimilis shall make all payments to the Publisher within 30 (thirty) days following the month traffic is realized. All payments made to the Publisher do not include, and the Publisher shall pay, any sales, use, bank fees or similar tax associated with such payment. The Parties shall keep, maintain and preserve, for the term of this Agreement and for one (1) year thereafter, accurate records relating to amounts due hereunder (the "Relevant Records")

11. Audit

Adsimilis has the right at least once per calendar year to audit the Relevant Records and any website traffic of the Publisher for the purpose of verifying fulfillment of a Party's payment obligations pursuant to this Agreement.  The Publisher shall receive at least ten (10) business days prior written notice of each audit to be conducted. Audit costs will be paid by the Publisher. Should Adsimilis determine in the exercise of its reasonable business judgment, that the Publisher has employed any device to artificially inflate actions, this Agreement will be terminated immediately, all unpaid commissions for all offers will be terminated and the Publisher will return any and/or all commission attributable to all offers that had been previously paid within five (5) business days of demand.

12. Adsimilis' Representations and Warranties

The execution, delivery, and performance of this Agreement by Adsimilis has been duly approved by its board of directors or managing partners/members, and no further corporate action is necessary on the part of Adsimilis to consummate the transactions contemplated in terms of this Agreement.

13. Publisher Representations and Warranties

The Publisher represents and warrants that: (1) the recipients of all email addresses used by the Publisher in connection with this Agreement have manifested affirmative consent to receive commercial emails from the Publisher and none of the email addresses were obtained through email harvesting or dictionary attacks; (2) The Publisher will not fraudulently add leads or clicks or inflate leads or clicks by fraudulent traffic generation (as determined solely by Adsimilis, such as pre-population of forms or mechanisms which have not received the prior written approval of Adsimilis); (3) The Publisher will not attempt in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the Site tags, source codes, links, pixels, modules or other data provided by or obtained from Adsimilis that allows Adsimilis to measure ad performance and provide its services and (4) all of the Publisher's efforts and/or obligations associated with this Agreement comply with applicable laws and regulations. The Publisher will not engage in or promote any illegal activities of any kind in association with this Agreement. Failure to comply with such laws and regulations will result in termination of a Publisher's account. Adsimilis shall determine compliance at its sole and absolute discretion.

14. Other Obligations: The Publisher shall:

  1. NOT PROVIDE Incentivized traffic. This includes but is not limited to any spoofing, redirecting or trafficking from adult related websites in an effort to gain traffic or websites that are point, lottery, coupon or rewards based and encourage users to click on Advertisements or use Advertisements to generate revenue for users to win points, get rewards, or other any other incentive.
  2. NOT PROVIDE leads generated from content, email or websites that are not subject matter related to the category of the Advertisement represented. Such websites must be content-based (not a list of links or advertisements), be written in English, receive a minimum of unique page views per month, have a top-level name and must not infringe on any personal, intellectual property or copyrights and or the like. This can be waived only by specifically providing the name of the proposed website to Adsimilis in writing.
  3. Be able to provide the name of the Website where the lead was generated. This information is only delivered to Adsimilis upon request, but must be made available in case there is a dispute or problem with the lead.
  4. NOT PROVIDE inappropriate content, which includes, but is not limited to, content that (i) promotes the use of alcohol, tobacco or illegal substances, nudity, sex, pornography adult-oriented content such as phone sex or escort services, expletives or inappropriate language, (ii) promotes violence or the use of illegal substances or activities such as how to build a bomb, counterfeiting money and software pirating (iii) promotes illegal or unethical activity, racism, hate, "spam", mail fraud, gambling, sweepstakes, pyramid schemes, or illegal advice (iv) is otherwise prohibited by Federal or state law; and/or (v) will bring Adsimilis and/or its associated Advertisers negative publicity.
  5. CLEARLY POST ON ITS WEBSITE (S) AND MARKETING MATERIALS AN EASY TO UNDERSTAND PRIVACY POLICY THAT IS COMPLIANT WITH ALL EU PRIVACY GUIDELINES AND ANY OTHER APPLICABLE LAWS, RULES AND REGULATIONS WITH RESPECT TO ONLINE PRIVACY.
  6. At no time, engage in, disseminate, promote or otherwise distribute any Advertisement through the use of contextual media, specifically downloadable software (also called adware, pop-up/pop-under technologies, plug-ins, and other names as applicable).
  7. Email Campaigns. The Publisher further represents and warrants that with respect to email campaigns transmitted by the Publisher for Adsimilis, the Publisher shall at all times only use the Adsimilis email creatives provided by Adsimilis, maintain strict compliance with the Controlling the Assault on Non-solicited Pornography and Marketing Act of 2003 (CAN-SPAM) and any amendments and modifications thereto. Prior to the Publisher sending email ads to the customer, the Publisher shall make sure the email list used does not contain email addresses of people who have requested not to receive offers again.
  1. NOT use deceptive subject lines including but not limited to claims that 'You have won', 'Your order is waiting', and 'order/offer confirmation'. The Publisher understands that upon doing so automatically forfeits the right and claim to any revenue generated for its account, and the Publisher's account will be immediately terminated.
  1. Immediately notify Adsimilis of any current, impending, or potential legal action against it by a third party for matters related to email, email complaints, email deployment and violates of Can-Spam.

15. Confidentiality

The terms of this Agreement are confidential and shall not be disclosed to any third party except where required by law. All information submitted by end-user customers pursuant to this Agreement is proprietary to and owned by Adsimilis. Such customer information is confidential and may not be disclosed by Adsimilis or the Publisher. In addition, the Publisher acknowledges that all non-public information, data and reports received from Adsimilis hereunder or as part of the services hereunder is proprietary to and owned by Adsimilis. ("Confidential Information"). The Publisher agrees not to disclose the terms of this Agreement, including the CPA value, to any third party without the express written consent of Adsimilis, and that such constitutes Confidential Information. All Confidential Information is or may be protected by copyright, trademark, trade secret and other intellectual property law, as appropriate. The Publisher agrees not to reproduce, disseminate, sell, distribute or commercially exploit any proprietary or Confidential Information in any manner whatsoever. The Publisher shall be bind by and agrees that these non-disclosure obligations shall survive the termination of this Agreement for a period of five (5) years. This section does not bind Adsimilis or the Publisher in the event such information is required to be disclosed by operation of law. If a request is made of the Publisher to disclose such information, the Publisher must immediately inform Adsimilis via written notice sufficiently and promptly to allow Adsimilis to seek a Protective Order prior to the time demanded to produce or disclose such Confidential Information, and the Publisher agrees to co-operate in whatever way Adsimilis requests to attempt to protect that information from disclosure by operation of law. Subject to prior approval by the Publisher, Adsimilis may publicly announce its contractual relationship with the Publisher, which includes being on listing of Adsimilis Publishers in general corporate materials and in industry standard press releases.

16. DISCLAIMER OF WARRANTIES

ADSIMILIS PROVIDES ITS SITES AND THE SITES OF ITS AFFILIATES, ADVERTISERS AND PARTNERS, AND ALL ITS SERVICES AND THE SERVICES OF ITS AFFILIATES, ADVERTISERS AND PARTNERS, AS PERFORMED HEREUNDER, ON AN "AS IS," "WHERE IS" AND "AS AVAILABLE" BASIS. TO THE MAXIMUM EXTENT PERMITTED BY APPICABLE LAW, ADSIMILIS DISCLAIMS ANY/OR ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE   AND/OR IMPLIED WARRANTIES ARISING FROM THIS AGREEMENT AND/OR THE PERFORMANCE IN TERMS THEREOF. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN OBTAINED BY THE PUBLISHER FROM ADSIMILIS OR THROUGH OR FROM THIS AGREEMENT SHALL CREATE ANY WARRANTY OR OTHER OBLIGATION ON ADSIMILIS WHICH IS NOT EXPRESSLY STATED IN THIS AGREEMENT.

17. LIMITATIONS OF LIABILITY

IN NO EVENT SHALL ADSIMILIS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE OR STRICT LIABILITY), OR FOR INTERRUPTED COMMUNICATIONS, LOSS OF USE, LOST BUSINESS, LOST DATA OR LOST PROFITS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT.

18. Indemnification

The Publisher agrees to indemnify, defend and hold harmless Adsimilis and its employees, agents, officers and directors, against any and all claims, causes of actions, judgments, demands, damages, losses or liabilities, including costs and expenses (including reasonable attorneys fees and costs of suit), arising out of or relating to (a) any claim based upon infringement of copyright, trademark, patent, or trade secret or other intellectual property right of any third party; (b) any claim, representation, or statement relating to the Advertisement; (c) any breach of any representation or warranty contained in this Agreement.

19. No Assignment

This Agreement may not be assigned, transferred, delegated, sold or otherwise disposed of, including, without limitation, by operation of law, without the prior written consent of the non-assigning Party provided that either Party may assign this Agreement without consent in connection with the sale of all or substantially all its assets or other change of control transaction and Adsimilis may assign this Agreement to a subsidiary of the Incubeta Holdings (Proprietary) Limited group of companies.   This Agreement will be binding upon and will inure to the benefit of a Party's permitted successors and assigns. Any purported assignment, transfer, delegation, sale or other disposition in contravention of this clause 19 including, without limitation, by operation of law, is void

20. Independent Contractor

Each Party is an independent contractor and nothing contained in this Agreement will be deemed or construed in any manner whatsoever as creating any partnership, joint venture, employment, agency, fiduciary or other similar relationship between the Parties. Except as set forth in this Agreement, neither Party is authorized or empowered to obligate the other or incur any costs on behalf of the other without the other Party's prior written consent.

21. Severability

If any term, provision, covenant, or condition of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable the remainder of the Agreement shall remain in full force and effect and shall in no way be affected or invalidated.

22. Entire Agreement; Modification

This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes any prior or inconsistent agreements, negotiations, communications, representations and promises, whether written or oral, regarding the subject matter. No variation, modification, amendment, alteration, consensual cancellation, novation of or addition to this Agreement shall be of any force and effect unless agreed to by Adsimilis in writing.  No relaxation or indulgence which either Party may grant to the other or any failure of either Party to enforce strict performance of any terms of this Agreement shall constitute a waiver of such Party's rights and shall not preclude such Party from any exercising any rights which may have arisen in the past or which may arise in the future.

23. Non-Circumvention and Non-Solicitation

The Publisher agrees that it will not approach or attempt to engage in a contract with any of Adsimilis' clients (each such client, individually a "Client" and all such clients, collectively "Clients") directly or indirectly via a Client's ad agency, broker or any other person or entity for the duration of this Agreement and for a period of 12 (twelve) months following the termination or expiry of this Agreement.  The Publisher shall not the during the course of this Agreement and for a period of 12 (twelve) months following the termination or expiry of this Agreement, solicit or entice away any of Adsimilis' employees and/or contractors.                          

24. Use of Leads

The Publisher hereby acknowledges that the collection of the Leads is being done solely for the benefit of Adsimilis or its Advertiser. Therefore, other than providing the Leads to Adsimilis for delivery to the Advertisers, the Publisher may not use, sell, transfer, assign or attempt to monetize the Leads for its own purposes. All right, title and interest in and to the Leads shall vest exclusively in Adsimilis or its Advertisers.

25. No Publicity

The Publisher may not make any mention of Adsimilis or any Adsimilis' clients/Advertisers in any publicity materials, advertising or otherwise, presenting information on the Publishers company and/or services, including without limitation listing Adsimilis and/or any of its clients/ Advertisers in the Publishers customer lists, without the prior written consent of Adsimilis, whose consent may be withheld for any reason or for no reason whatsoever.

26. Privacy

The Advertiser hereby instructs Adsimilis to process personal data within the meaning of Directive 95/46/EC and the Dutch Data Protection Act for the purpose of click fraud prevention.

  • The Publisher will be deemed "controller", as meant in Directive 95/46/EC and the Dutch Data Protection Act. Adsimilis will solely act as "processor" as meant in Directive 95/46/EC and the Dutch Data Protection Act. Adsimilis will solely process personal data insofar as instructed by controller.
  • Adsimilis will implement appropriate technical and organizational measures to secure the personal data against loss or any kind of unlawful processing. Taking account of the state of the art technology and the costs of implementation, these measures will guarantee an appropriate level of security in view of the risks associated with the processing and the nature of the data to be protected.
  • The Publisher is entitled to monitor and inspect the measures implemented by Adsimilis and Adsimilis' compliance with arrangements made by parties and statutory obligations.
  • All staff members who act under the auspices of Adsimilis and have access to the personal data must observe confidentiality with regard to the personal which they take note of, unless a statutory regulation compels them to disclose it.
  • The above mentioned will qualify as processing agreement between Adsimilis and the Publisher.

27. Governing Law and Jurisdiction

This Agreement will be governed by and interpreted (without regard to any conflict of laws principles or rules) in accordance with the laws of the Netherlands. All disputes arising in connection with this Agreement, including disputes relating to the existence, validity and/or termination thereof (a "Dispute"), will be referred exclusively to and shall be finally settled by the competent courts of The Hague, the Netherlands. This Clause is for the benefit of Adsimilis only, such that Adsimilis shall never be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction.

28. Force Majeure

No Party will be liable for failure to perform or delay in performing any obligation (other than the payment of money) under this Agreement if such failure or delay is due to lightning, fire, flood, earthquake, strike, war (declared or undeclared), embargo, blockade, legal prohibition, governmental action, riot, insurrection, damage, failure of any telecommunications or computer system, destruction or any other similar cause beyond the control of such Party (or any damage caused by such events).

29. Notices

All notices, requests, consents, and other communications under this Agreement will be in writing, and will be delivered by hand or sent by reputable overnight courier service or electronic facsimile transmission or by way of email or mailed by first class certified or registered mail, return receipt requested, postage prepaid, if to Adsimilis or to the Publisher, at the  address indicated on the online application, or such other addresses as each Party specifies to the other Party in writing by notice given in accordance with this clause 29. Notices provided in accordance with this clause 30 will be deemed delivered: (a) on the date of delivery if personally delivered or on the date of successful transmission if sent by electronic facsimile transmission or email; or (b) if sent by overnight courier service, 24 hours after deposit with such courier service; or (c) if sent by certified or registered mail, return receipt requested, 48 hours after deposit in the mail.