Mavatar’s Global Influencer Terms of Service
Effective date: August 1, 2018
- Affiliate Network - a platform providing an affiliate marketing service and technology on behalf of Retailers (Merchant) or other affiliate networks
- Commissions - monetary payments made to the Publisher in relation to sales or referrals of Customers to Merchants.
- Customer - a user of the Publisher’s website(s) that is directed by the Company platform to a Merchant via the Service and/or interacts with Merchants by purchasing goods and/or services or providing the Merchants with information.
- Retailer (Merchant) - any party supplying goods and/or services to Customers, and which has signed up with the Company directly or to an Affiliate Network or has an affiliate program.
- Service - means the provision of: (i) the Technology; (ii) access to the technological and commercial relationships between publishers, Merchants; (iii) the Company Product; and (iv) the Tools to Publishers approved by the Company pursuant to Section 2.
- The Company Product - a product (within the Service) that allows the publisher to get an affiliate link to a collection of products in the Company system.
- The Company Code – software code that when added to a web page or global footer, enables the Technology and the Service on the Publisher’s website(s).
- The Company Publisher Interface - the login-protected section of the Service that provides the Publisher with reporting on activity and Commissions, account and service management, and a Merchant directory supported by the Company.
- The Company Connect - a product (within the Service) that generates a link to a collection of products produced by the Publisher from the Company supported stores into links into the said collection in the Company.
- Technology - the software that facilitates the automated and online referral of a Customer to a Merchant by the Publisher, and that records the referral and the Customer’s sales activity.
- Tools - other non-core products made available by the Company to Publishers, including, but not limited to, the Company Kit Tool, the Company RSS, URL Shortener, Search Widgets, the Company APIs.
2. Enrollment in the Service
2.1 The Publisher must apply to use the Services via the Company website. The Company will evaluate the Publisher’s application for suitability to receive the Service in its sole discretion. Publishers with content containing pornographic, violent, illegal or political material will not be permitted to use the Service.
2.2 If the Company approves the Publisher’s application for the Service they will be informed via email or web interface and the Publisher will be able to gain access to the Service and implement the Technology. The Publisher can choose to activate the Company Product and/or the Company Connect Product, as well as any additional Tools.
2.3 The Publisher must inform the Company if they wish to use the Service on additional Publisher websites other than the one first applied for. Each new Publisher website must be individually approved and setup for inclusion in the Service. The Publisher may not use the Technology on any website other than those for which it has the Company’s prior permission.
3.1 The Publisher acknowledges and agrees that:
3.1.1 The Company may integrate any Merchants into the Service. The Service will rewrite any existing Merchant links (added by the Publisher or in user-generated content) found on the Publisher’s website(s), unless the Publisher excludes a link from the Service or from its own website;
3.1.2 Merchants may vary their Commission structures or terminate their involvement in the Service at any time;
3.1.4 Merchants may at any time send the Company notice requesting that the Publisher remove links or references to the Merchant’s brands, products, or trademarks. the Company will communicate this notice to the Publisher.
4. The Company Tools
4.1 To use the Tools, the Publisher:
4.1.1 must be registered and approved for the Service pursuant to Section 2, and have the Company code implemented on any website with which it intends to use the Tools, or the content delivered by the Tools;
4.1.2 must in the case of the APIs, use the unique API key granted to approved Publishers who use these APIs; 4.1.3 must not sell, transfer, sublicense or otherwise disclose its login or API key;
4.1.4 may not use any other manual or automatic affiliate link service to monetize content obtained from the Tools.
4.2 The Company reserves the right to monitor the Publisher’s use of the Tools to ensure they are being used by the Publisher in accordance with the terms and conditions of this Agreement. Whether the Publisher’s use of the Tools is in accordance with this Agreement shall be determined at the Company’s sole discretion.
4.3 The number and size of API requests made to the APIs is expected to reflect the revenue generated via the Service with reasonable accuracy. Excessive, fraudulent, or use which bypasses monetization with the Service will be considered a breach of this Agreement (‘Breach’).
4.4 If a Breach is capable of being remedied, but the Publisher fails to remedy any such Breach within three (3) days of its receipt of a notice from the Company, the Company may terminate the Publisher’s access to the specific Tools involved in the Breach.
4.5 The Company reserves the right at any time in its sole discretion, without notice or liability to the Publisher, to: (i) refuse to permit the Publisher to use the Tools; and (ii) amend the measures taken to protect against inappropriate use of the Tools.
5. Referral Income
5.1 In accordance with any Publisher Referral Program that the Company may publish on the Company Publisher Interface, the Publisher would be entitled to Commissions on Sales, where the Publisher’s website has been the most recent referrer to a Merchant’s website, and the Sale was made during the cookie life-time eligible for Commissions, specified by individual Merchants, subject to the following provisions of this Section 5, or subject to any limitations of the Company tracking technology as implemented by the Company.
5.2 The calculation of Commission due to the Publisher is performed by the Company, and is based on the commission received by the Company from Merchants and mCart branded marketplaces and Affiliate Networks. The Publisher acknowledges different Merchants use different commission structures, with some using fixed amounts per Sale or referral, while others use percentage based methods; and may perform de-duplication across marketing channels, so may not reward a Commission if another type of referral was performed more recently. Although the Company will exercise commercially reasonable efforts to engage reputable Merchants and Affiliate Networks, the Company is not responsible for the accuracy of the Sales and amounts reported by them.
5.3 Where Merchants participate in more than one affiliate program and both or all affiliate programs are Affiliate Networks participating in the Service, the Company in its sole discretion shall attribute the Commission to the Affiliate Network or Merchant deemed best in its sole judgment.
5.4 The Company shall collect and aggregate the Commission due to the Publisher from the Merchants directly, and display the portion relevant to the Publisher in reports accessible via the Company Publisher Interface.
6. Payment Terms
6.1 The Company will not charge the Publisher for application, installation, and use of the Service on its website(s).
6.2 In the "Company Connect" affiliate program, the Company shall offer the Publisher a commission as a percentage of the total value of the transaction, as defined by the Merchant. Commissions are paid by the Company at the end of the calendar quarter month following the quarter in which these amounts became fully unconditional in accordance with Section 8.
6.3 If the amount of Commission due to the Publisher is less than the equivalent of US$100 (excluding any tax element if appropriate) in any calendar quarter (the “Minimum Threshold”), any such amount will be carried over and aggregated with the subsequent quarter’s Commission and paid when the cumulative amount then due for payment to the Publisher exceeds the Minimum Threshold.
6.4 The Publisher shall only be eligible to earn Commissions that occur during the term of this Agreement, and any Commissions earned prior to the date of termination will remain payable only if the related amounts are not disputed or subject to a Chargeback. the Company may withhold the Publisher’s final Commission payment for such time as is reasonable up to a maximum of 3 months from the date of termination to ensure that the correct Commission amount is paid to the Publisher.
6.5 Payments will be made via digital curren
cy on exchanges such as Coinbase, PayPal, checks or US bank transfer. Customers (marketplace operators) must state its preferred payment method within the Company Publisher Interface. The Company will NOT pay the cost of transferring Commissions to the Publisher and its influencers (and some banks may charge additional fees for receiving bank transfers).
7.1 The Publisher is responsible for paying any and all income tax related to their earnings from the Company. In the event the Company is required by a governmental taxing authority to withhold any amount due to Publisher and pay such amount directly to the authority for the account of Publisher, the Company shall do so and thereby be relieved from the obligation to pay such amount directly to Publisher provided that the Company furnishes Publisher with an official receipt of the authority.
8.1 Merchants may determine after the event that a Sale was not a bona fide transaction, whether the goods sold are returned by the Customer; there is subsequent detection of a fraudulent transaction; or otherwise (a ‘Chargeback’). The Merchant may make a Chargeback claim to the Company requesting for Commissions related to these Sales to be cancelled or reversed. Chargebacks are communicated to the Company as they occur, and are reflected in the reports accessible via the Company Publisher Interface.
8.2 Commissions are conditional until the specified time for a Chargeback to be accepted the Company and Merchants has elapsed. This period varies by by Merchant.
9. Service Levels
9.1 The Company will use its reasonable endeavors to ensure that the Technology works on the Publisher’s websites. the Company does guarantee any level of response time or performance, as this is affected by a variety of factors and events beyond the control of the Company.
9.2 The parties acknowledge that the time to redirect to a Merchant website is outside the Company’s control and no guarantees are made regarding this process.
9.3 The Publisher shall notify the Company of any Service performance issues via email. The Company will use reasonable endeavors to correct any reported issues within 7 days of the date of notice.
9.4 In addition, the Company will exercise commercial reasonable efforts such that:
9.4.1 links inserted by the Company Connect Product are accurate and contextually relevant, and the content and links provided via the Tools are accurate;
9.4.2 the Company Connect Product and the Tools are available and performing; and
9.4.3 if the Company Connect Product is not available at any time for whatever reason, ensure that this does not affect the Publisher’s website pages.
10. Term and Termination of this Agreement
10.1 This Agreement will commence when the Publisher begins to use the Service and will continue until either party terminates this Agreement with or without cause, by giving the other party written notice of termination at any time via email. Any such notice will be effective immediately and must be delivered to the Company account manager (as notified to the Publisher) and to the Publisher contact (as notified to the Company), as applicable.
10.2 Where the Publisher terminates this Agreement under Section 10.1 for any reason other than the Company’s breach of contract, the Company will pay outstanding Commission as set out in Section 6 only where Commissions are above the Minimum Threshold.
10.3 On termination of this Agreement for any reason, the Publisher will immediately cease use of, and as soon as practicable remove from the Publisher’s websites, all instances of the Technology, and cease use of the Tools and promptly return to the Company, or at the Company’s written request, destroy, any and all of its intellectual property rights, information and/or materials in the Publisher’s possession.
11.1 All intellectual property rights subsisting in, relating to or arising out of the Service, Technology or Tools shall at all times be owned by and vest in the Company, including all developments or enhancements to such intellectual property rights. Subject to Section 11.2, the Publisher agrees that this Agreement does not transfer or grant any right, title or interest in the Company’s intellectual property rights in the Service, Technology or Tools, to the Publisher.
11.2 The Company grants to the Publisher a non-exclusive, non-transferable, non-sublicensable, revocable, worldwide license to use the Service, Technology and Tools during the term of this Agreement.
11.3 The Publisher shall not be entitled to use the Service, Technology or Tools in any other way other than as set out in this Agreement. Any attempt to interfere with the operation of the Service, Technology or Tools will be deemed to be a breach of this Agreement and may result in termination of the Publisher’s inclusion in the Service.
11.4 The Publisher shall not use any other competing affiliate marketing link creation service directly alongside the Service.
Neither party may assign its rights and/or obligations under this Agreement in whole or part without the prior email consent of the other party, except to an entity controlling, controlled by, or under common contract with, the party, provided that notice of such assignment is promptly e mailed to the other party.
13.1 Any notice under this Agreement shall be in writing and shall be made either via e-mail or certified mail to the other party’s registered office address. Notices sent by email will be deemed effective 72 hours from the time of sending and notices sent by mail will be deemed effective 72 hours after receipt of the mail.
13.2 The Company may disclose its relationship with the Publisher in its marketing material and in its operational relationship with Merchants, including using for such purposes the Publisher’s name or trademark.
13.3 The Publisher agrees that the Company may use the Publisher’s contact details (including its email and registered address) to notify it about its account with the Company, any issues relating to, and updates to, the Service, Technology and/or the Tools.
The Company may modify all or any part of this Agreement, at any time and at its sole discretion, effective immediately upon notice published on the Company Publisher Interface. Continued participation in the Service after receiving notice of such modification will constitute the Publisher’s binding acceptance of the modification to this Agreement.
The Publisher shall indemnify, defend and hold harmless the Company against all losses, liabilities, damages and costs (including legal expenses) sustained, incurred or suffered by the Company as a result of any claim, action or proceeding that: (i) the Publisher’s websites infringe the intellectual property rights of any third party; (ii) the Publisher is in breach of its obligations under the terms of this Agreement; or (iii) any third party claims arising from the Publishers use of the Service, the Technology or the Tools otherwise than in accordance with the terms of this Agreement.
16.1 The Company will not collect or store any personally identifiable information (‘PII’) pertaining to Customers visiting the Publisher’s website prior to their registration with the Company. PII includes, but is not limited to, first and last name, home or other physical address, email address, phone number or other contact information, and credit card or information pertaining to other forms of payment.
16.2 The Company shall collect and store PII pertaining to Publishers, including company name, address, phone number, email address, wallet address, and bank or PayPal account details. However, the Company shall keep any Publisher’s PII secret and not disclose or use such PII other than to perform its obligations under this Agreement without the prior written consent of the relevant disclosing party. This Section 16.2 shall not apply to any PII to the extent that disclosure is required to or by any court, tribunal or governmental authority with competent jurisdiction or the PII is or becomes generally and freely publicly available through no fault of the receiving party or its agents.
16.3 Each of the parties warrants and undertakes that it (and its sub-contractors if applicable) shall duly observe its disclosure and other obligations under applicable privacy law.
17. Limitation of Liability
17.1 Except as expressly and specifically provided in this Agreement, all warranties, conditions, representations and other terms of any kind, whether express or implied, are to the fullest extent permitted by law, excluded from this Agreement. In particular, the Company makes no express or implied warranties or representations with respect to the operation of the Service, Technology or Tools being uninterrupted, error-free, merchantability, fitness for a particular purpose or non-infringement of third party rights, and the Company will not be liable for the consequences of any interruptions to or errors in the Service.
17.2 Nothing in this Agreement excludes the liability of either party for any other liability which cannot be excluded under applicable law, including fraud, or death or personal injury caused by either party’s negligence.
17.3 The Company shall not be liable for: loss of profits; loss of business; depletion of goodwill or similar losses; loss of anticipated savings; or loss of goods; or loss of use; or loss or corruption of data or information; or any special, indirect, consequential or punitive damages, or for the cost of procuring remedial or substitute services.
17.4 The Company’s total aggregate liability for any claim brought on any legal or equitable basis in connection with the performance of this Agreement shall be limited to the amount of Commission payable by the Company under this Agreement with respect to the service giving rise to the claim in the year preceding the date on which the claim arose.
18. Force Majeure
Neither party shall be liable to the other by reason of any event arising which is beyond the reasonable control of the affected party — including any industrial action (save in respect of the affected party’s employees or suppliers), governmental regulations, fire, flood, disaster, civil riot or war.
19. Entire Agreement
This Agreement constitutes the whole agreement between the parties relating to its subject matter and supersedes any prior drafts, agreements, undertakings, representations, warranties and arrangements of any nature, whether in writing or oral, relating to such subject matter save that this Section 19 shall not exclude liability for any fraud of a party.
20. Governing Law and Jurisdiction
This Agreement shall be governed by, and construed in accordance with, the laws of the Company’s State in the U.S.A. In relation to any legal action or proceedings to enforce this Agreement or arising out of or in connection with this Agreement each of the parties irrevocably submits to the non-exclusive jurisdiction of the courts located in the Company’s City and State.
- Publisher Identity Verification
Company retains the rights to have Publisher undergo Know Your Customer (KYC) and Anti-Money Laundering (AML) verification to ensure Publisher identity and legal usage of all use of the Company Product. Once the Company requests the the publisher undergo KYC and AML verification, the Publisher will have up to 30 days to comply with the request.
Notice and Procedure for Making Claims of Copyright Infringement
If you believe that your work has been copied in a way that constitutes copyright infringement, please submit your complaint via email or mail to the Company Copyright Agent (contact information below). We respond quickly to the concerns of rights owners about any alleged infringement.
Please provide us with the following information:
- A physical signature of the person authorized to act on behalf of the owner of the copyright interest;
- A description of the copyrighted work that you claim has been infringed upon;
- A description of where the material that you claim is infringing is located on the site;
- Your address, telephone number, and e-mail address;
- A statement by you that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
- A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
- The Company’s Copyright Agent for notice of claims of copyright infringement on its site can be reached via a letter to the Company or via contacting the Company via Company Email firstname.lastname@example.org.