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PingMedia Networks Ltd Terms *
AFFILIATE TERMS AND CONDITIONS
1. INTRODUCTION

1.1 This is an agreement between Ping Media Networks Limited (company number 204013) with a registered address at A3 Bel Etang, Hermitage, Mount Fleuri, Mahe, Seychelles ("the Company") and the entity using the Services ("Affiliate").

2. DEFINITIONS

2.1 In this agreement, the following definitions apply:

"Advertisements" any form of advertisement or promotion by an Advertiser in connection with the Services including banner advertisements and text links.



"Advertiser" an entity which advertises on the Affiliate Network Advertiser Terms all guidelines, rules, terms and conditions or other requirements of Advertisers relating to their Advertisements whether located on the Company's website or elsewhere.



"Affiliate Website" any website used by the Affiliate in connection with the Services.



"Applicable Laws" all applicable laws, regulations and codes of conduct.



"Click" all clicks by a single user (measured by IP address) within a 30-day period.



"Confidential Information" all information whether recorded or not (and, if recorded, in whatever form, in whatever media and by whomever recorded) which is a trade secret or other confidential or private information which is not generally known or easily accessible by the public (either as an individual item of information or as part of a body of knowledge) in any way relating to or concerning the business, finances, dealings, transactions or affairs of the Company.



"Data" any text, look and feel, text, graphics, images, audio, video, software (object and source code), data and all other materials in whatever form (whether electronic or otherwise).



"Event" any validated sale, validated Lead, Click, Impression or other applicable event arising from any Advertisement displayed or distributed by the Affiliate.



"Fee(s)" a payment per Event depending on the applicable campaign Impression a single instance of an Advertisement being displayed.



"Intellectual Property" Rights patents, trademarks, service marks, design rights, copyright, database rights (all whether registered or not), applications for any of the foregoing, know-how, trade or business names and other similar rights or obligations whether registered or not in any country in the world and whether now existing or in the future.



"Created Lead" specified contact information supplied by a user in response to an Advertisement.



"Medium" any medium used by the Affiliate to display or distribute Advertisements including Affiliate Websites and email newsletters Month calendar month.



"Personal Data" is defined in the Data Protection Act 1998 and GDPR. Any information relating to an identified or identifiable natural person (‘data subject'); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person;



"GDPR" means Regulation (EU) 2016/679, known as the General Data Protection Regulation.



"Data Protection Legislation" means all applicable data protection, privacy and electronic marketing legislation, including any national legislation implementing Directive 95/46/EC and Directive 2002/58/EC, GDPR (and any related national legislation), any equivalent, replacement or repealing legislation, and any codes of practice issued by a Competent Data Protection Regulator relating to the same at any time.



"Services" all services by the Company related to the Company's affiliate network service whereby the Company enables Advertisers to advertise via affiliate websites and other media



"Valid Event" an Event which: (a) complies with the relevant Advertiser Terms; (b) is accepted and validated by the relevant Advertiser; (c) is a genuine and bona fide step taken by the user concerned; (d) is not automated or generated by search engine or other robots, spiders or similar technology; (e) is complete (for an example an attempted Click which does not bring the user to the relevant page is deemed incomplete); and (f) has not been procured in breach of this agreement including via a Medium which does not comply with this agreement.



"In Writing" means all forms of visible reproduction in permanent form (including email unless otherwise stated).

3. CHANGES

3.1 The Company may amend this agreement and/or the amount of the Fees by giving notice by email. If the Affiliate does not wish to accept the changes, it may terminate the agreement by giving notice in Writing within 48 hours. The Affiliate will be bound by the revised agreement / Fees if it fails to give such notice.

4. SERVICES GENERALLY

4.1 In consideration of the mutual covenants contained in this agreement, the Company agrees to supply the Services subject to the terms of this agreement.

4.2 The Company reserves the right to reject any application to become an Affiliate. Affiliates must be 18 years or over.

4.3 The Company reserves the right to require that each Medium is subject to the Company's prior approval. If the Company specifies that such approval is required, the following applies: The Affiliate shall not display or distribute any Advertisement unless the relevant Medium has been approved by the Company in Writing. Any such approval by the Company does not constitute an endorsement of any kind and the Company is not liable for any such approval. No fees will be paid in respect of Advertisements displayed or distributed via a Medium which has not been approved by the Company. The Affiliate must promptly notify and seek re-approval from the Company in Writing if it proposes to make any material change to an Affiliate Website after approval by the Company.

4.4 The Affiliate agrees:

4.4.1 not to alter any Advertisement;
4.4.2 not to create its own advertisements in respect of any Advertiser or create its own link to an Advertiser website without the prior approval of the Company in Writing;
4.4.3 not during the term of this agreement and for a period of 6 months after termination independently of the Company to display or distribute Advertisements of, or otherwise conduct any advertising-related business with, any Advertiser or advertising or affiliate networks whose Advertisements the Affiliate has displayed or distributed in connection with this agreement;
4.4.4 not to procure, or attempt to procure Events by means of: a) open encouragement to users or incentives (except that if the Advertiser Terms do not state "no incentives" or similar, the Affiliate may provide incentives which comply with any Advertiser requirements and which are reasonable, non-deceptive and in accordance with industry standards); b) deception; or c) any other means which the Company considers inappropriate;
4.4.5 not to use "spam" or unsolicited email marketing; and
4.4.6 not to display any information (including prices) relating to the Advertiser's goods and services on any Medium unless such information is accurate, up to date and non-misleading.
4.5 The Affiliate agrees to comply with (a) all applicable Advertiser Terms and (b) any other applicable rules or guidelines shown on the Company's website from time to time.

4.6 The Affiliate warrants that in respect of this agreement (including in relation to every Medium):

4.6.1 it shall comply with all Applicable Laws;
4.6.2 it shall not infringe any third party intellectual property or other rights;
4.6.3 it shall not breach the published policies of Google or other major search engines;
4.6.4 it shall not display or distribute any information which is defamatory, discriminatory, offensive, vulgar, racist, abusive, invasive of another's privacy or otherwise inappropriate; and
4.6.5 it shall comply with the highest industry standards.
4.7 The Affiliate warrants that it has sole control of the Affiliate Website.

4.8 The Affiliate acknowledges that the Advertisements include cookies and similar technologies as set out on the privacy policy from time to time on the Company's website. It is the Affiliate's responsibility to frequently monitor the privacy policy and to comply with all legal requirements concerning the use of such technologies on the Affiliate Website including the procuring of any necessary consents from users.

4.9 The Affiliate:

4.9.1 Affiliates who hold EU and UK ‘personal data' must fully comply with the Privacy and Electronic Communications (EC Directive) Regulations 2003, the Electronic EU Regulations 2011 and the EU General Data Protection Regulations (GDPR).
Names, contact details (telephone number, email address, physical address), dates of birth, location data all constitute ‘personal data' and where you have access to this data, you should ensure that you have taken legal advice to ensure that your handling of personal data is GDPR compliant.
4.9.2 Affiliates shall at all times comply with the Data Protection Legislation including, without limitation, ensuring that Affiliate Customers' personal data: (i) is collected fairly, lawfully and transparently; (ii) is processed in accordance a lawful condition as set out in the GDPR; and (iii) is protected from loss, theft, accidental destruction or unauthorised access by implementing appropriate technical and organisation measures in respect of such personal data.
4.9.3 Affiliates who downloads and processes Ping Media Network's suppression files agrees to being a ‘data processor' and must ensure the secure and GDPR compliant management of this data.
4.9.4 Affiliates shall provide reasonable co-operation to the Company in supplying the Services and shall comply with the Company's reasonable requirements.
4.9.5 Affiliates must promptly notify the Company should it become aware of any data or security breach in accordance with GDPR regulations.
4.9.6 Affiliates shall promptly provide the Company with such information and documents as it may reasonably request for the proper performance of the Services.
4.9.7 Affiliates shall provide full opt-in details for any email or SMS contact including: (a) time and date stamp (b) URL where the consent was obtained (c) IP address. This information must be provided within 48 hours subsequent to receiving the request from Ping Media Network or any of its representatives. The issuance of the request for information does not need to arise from a complaint, Ping Media Network reserves the right to "spot check" its affiliates when and whenever Ping Media Network reasonably deems fit. Failure to comply with the request will result in commissions and membership of the Ping Media Network being suspended and ultimately forfeited.
4.9.8 Affiliates who send Ping Media Network offers to third-party UK & EU data must have their company name stated in the third-party data owner's privacy policy across all web properties where the data was captured. The affiliate shall ensure that the ‘data owner' is registered with the ICO or the equivalent governing body in their own county of operation and comply the GDPR.
4.9.9 Affiliates who control and process first party UK & EU data must have obtained the correct consent from their subscribers compliant with GDPR.
4.9.10 No matter whether affiliates hold ‘third' or ‘first party' all recipients of your marketing emails or SMS messages must be given the right and facility to opt-out and the right and facility to be ‘forgotten'.
4.9.11 The affiliate will only email / sms subscribers / contacts for whom the Opt-in consent can be proven and obtained no more than 6 months prior to the contact receiving an email / sms.
4.10 The Affiliate must promptly inform the Company if any Affiliate Website becomes inactive or is no longer owned or operated by the Affiliate.

4.11 The Company does not guarantee that use of the Services will generate any particular level of revenues.

4.12 The Affiliate warrants that it will not use the Services in a manner which imposes or may impose a disproportionately large load on the Company's systems or which constitutes spamming, phishing or improper, malicious or fraudulent activity or which is liable to damage the reputation of the Company, all as determined by the Company in its sole discretion.

4.13 The Affiliate agrees that the Company may disclose the Affiliate's name and contact details to the Advertiser on request should there be proven breach of these t&cs.

4.14 The Company does not guarantee that the Services will be error-free or uninterrupted. The Company is not liable for such interruptions or errors provided that they are not deliberate acts of the Company and provided that the Company uses reasonable endeavours to procure that any errors or interruptions of which it becomes aware are corrected as soon as reasonably practicable.

4.15 The Company is entitled, without notice and without liability, to suspend the Services for repair, maintenance, improvement or other technical reason.

4.16 The Affiliate agrees that they will download and suppress all contacts in campaign specific suppression lists in accordance with GDPR. The contacts in these suppression lists shall never be mailed with campaigns they have requested not to receive. In the event that this issue occurs, commissions generated will be suspended pending investigation to cover damages.

4.17 The Affiliate agrees not to engage in any activity proven to be fraudulent. If fraud activity does take place, then PingMedia Networks Ltd reserves the right to suspend the affiliate’s account and withhold all commissions generated network-wide.

4.18 If the affiliate is found to be in breach of PingMedia Networks Ltd network t&cs, then PingMedia Networks Ltd reserves the right to cancel all commissions due to that affiliate network-wide.

5.PAYMENT

5.1 Subject to the terms of this agreement, the Company shall pay the Fees to the Affiliate.

5.2 Payment of Fees shall be made after the Company receives payment in full of the fee due to the Company from the Advertiser in respect of the relevant Event. Payment will be in line with the campaign terms agreed with the Affiliate but note the standard PingMedia Network payment terms are net30 from the date of invoice. Invoices shall be sent by Affiliate to Company within the first working week following the month when commission has been generated by the Affiliate. For the avoidance of doubt, the Company shall have no liability to pay the Affiliate for the relevant Event if full payment for the relevant Event is not received by the Company from a merchant for whatever reason. For the further avoidance of doubt, the Company is not liable to the Affiliate if the Advertiser fails to make payment for any reason (excluding any deliberate act or omission by the Company).

5.3 Any Fees under $750 USD will be retained until the total Fees due to the Client reach that sum.

5.4 No Fees shall be payable to the Affiliate in respect of any Event which is not a Valid Event.

5.5 No Fees shall be payable to the Affiliate in respect of any Medium which has not been approved in Writing by the Company in accordance with clause 4.3 of this Agreement.

5.6 If the Affiliate breaches clauses 4 of this agreement:

5.6.1 no further Fees shall be payable by the Company to the Affiliate under this agreement;
5.6.2 the Affiliate shall promptly repay to the Company all Fees previously paid by the Company to the Affiliate relating to the Advertiser(s) concerned.
5.7 No Fees shall be due to the Affiliate in respect of terminated / paused campaigns. If the Affiliate continues to send traffic after a campaign has been terminated / paused, the Company reserves the right to redirect the traffic to any alternative campaign by any advertiser, in which case the Company shall pay the Affiliate whatever are its standard fees for that alternative campaign.

5.8 No Fees shall be due to the Affiliate in respect of Events involving users with IP addresses located in countries other than those specified on the Advertiser Terms as recorded by the Company.

5.9 The Affiliate acknowledges that the Company's and/or Advertiser's records and statistics shall be conclusive as to any payment issue relating to this agreement.

5.10 Any payments referred to in this agreement are net of VAT which shall be payable in addition where legally due.

5.11 If the Affiliate is VAT-registered, then it agrees to a self-billing arrangement as follows:

5.11.1 The Company shall issue self-billed invoices for all supplies made to it by the Affiliate during the period of this agreement including the Affiliate's name, address and VAT registration number, together with all the other details required for a valid VAT invoice. The Affiliate will inform the Company in Writing before outsourcing the issuance of self-billed invoices to a third party.
5.11.2 The Affiliate agrees to accept all self-billed invoices issued by the Company during the period of this agreement and that it will not raise any sales invoices for transactions covered by this agreement.
5.11.3 Each party will notify the other promptly in Writing if it changes its VAT number, ceases to be VAT registered or sells all or part of its business.
6. SUPPORT

6.1 The Company has no responsibility to provide any form of support. The Company may in its discretion decide to provide support and, if so, it is entitled to make such support conditional upon payment of its standard fees for such services.

7. SECURITY

7.1 The Affiliate's online account for use of the Service is for the Affiliate's personal use only and is non-transferable. The Affiliate must not authorise or permit any other person to use its account. The Affiliate must take reasonable care to protect and keep confidential its password and other account or identity information. The Affiliate must notify the Company immediately of any apparent breach of security such as loss, theft, misuse or unauthorised disclosure or use of a password. The Affiliate is responsible for third parties who use its account or identity (unless and to the extent that the Company is at fault).

8. TERMINATION

8.1 Either party may terminate this agreement immediately at any time for any reason by giving notice in Writing.

8.2 Any right of termination referred to in this agreement is without prejudice to any other remedy that may otherwise be available to the terminating party.

8.3 In the event of termination of this agreement:

8.3.1 accrued rights and liabilities shall be unaffected;
8.3.2 the Company shall continue to pay outstanding Fees relating to Valid Events which occurred before termination and there will be an administration fee of $150 USD in respect of any payment due under $750 USD and
8.3.3 all provisions which are intended or expressed to survive termination of this agreement will survive together with any other provision necessary for the interpretation or enforcement of this agreement.
9. MUTUAL WARRANTIES

9.1 Each party represents and warrants to the other party that:

9.1.1 it has authority to enter into and be bound by this agreement; and
9.1.2 the execution of this agreement and the performance of its obligations hereunder do not and will not violate any other agreement by which the party is bound.
9.2 During and for one year after the end of this agreement, the Affiliate promises that it will not encourage, seek to persuade, influence, employ, seek to employ, offer or conclude any contract for services with anybody who was a director or employed by the Company at any time during the term of this Agreement. The Affiliate also agrees that it will not carry out any such actions on behalf of somebody else or facilitate such actions on behalf of somebody else during the same period.

10. LIABILITY

10.1 Any provisions in this agreement excluding or limiting liability will apply regardless of the form of action, whether under statute, in contract or tort including negligence or otherwise. Nothing in this agreement in any way excludes or restricts either party's liability for negligence causing death or personal injury or for fraudulent misrepresentation or for any liability which may not legally be excluded or limited.

10.2 The Company shall not be liable for breach of this agreement unless the Affiliate has given the Company 72 hours' notice of the breach in Writing and a reasonable opportunity thereafter to rectify the breach at the Company's expense.

10.3 The liability of the Company under or in connection with this agreement for any one event or series of related events is limited to the total fees payable to the Affiliate under this agreement in the 3 months before the event(s) complained of.

10.4 In no event (including the Company's own negligence) will the Company be liable for any:

10.4.1 economic losses (including, without limit, loss of revenues, profits, contracts, business or anticipated savings);
10.4.2 loss of goodwill or reputation;
10.4.3 special, indirect or consequential losses; or
10.4.4 damage to or loss of data (even if the Company has been advised of the possibility of such losses).
10.5 Both parties exclude all terms that are not expressly stated herein, including but not limited to any implied warranties as to quality, fitness for purpose or ability to achieve a particular result.

11. INDEMNITY

11.1 The Affiliate will indemnify and hold harmless the Company and its successors, assigns, parent, subsidiaries and affiliates, and its directors, officers, employees, and agents against all losses, damages, liabilities, and expenses (including reasonable legal fees) arising from (a) any Medium or (b) any breach by the Affiliate of this agreement. The Company shall have the right to withhold its reasonable estimate of the total damages and costs from sums otherwise payable to the Affiliate pursuant to this or any other agreement between the parties, and to apply such sums to payment of such damages and expenses. The Company shall have the sole right to control the defence and settlement of any such claim save that the Company shall consult with the Affiliate prior to any settlement. The Affiliate agrees to provide reasonable assistance to the Company at the Affiliate's expense in the defence of same.

12. CONFIDENTIALITY

12.1 The Affiliate shall during the period of this agreement and indefinitely thereafter keep secure and confidential and not disclose to any other person or use other than for the purposes of this agreement any Confidential Information and shall not through any failure to exercise all due care and diligence cause or permit any unauthorised disclosure of any Confidential Information.

12.2 This clause shall not apply to:

12.2.1 information which becomes public knowledge or has been published other than through a breach of this agreement;
12.2.2 information lawfully in the possession of the recipient before the disclosure took place;
12.2.3 information obtained from a third party who is free to disclose it; and
12.2.4 information which a party is requested to disclose and if it did not could be required by law or regulation or competent authority to do so.
13. INTELLECTUAL PROPERTY RIGHTS

13.1 The Company shall retain ownership of all Intellectual Property Rights in the Data used to supply the Services. The Company grants the Affiliate a licence to use the Services for the purpose of and subject to this agreement.

14. FORCE MAJEURE

14.1 Neither party is liable for failure to perform or delay in performing any obligation under this agreement if the failure or delay is caused by any circumstances beyond that party's reasonable control including third party telecommunication failures.

15. NOTICES

15.1 Any notice or other information required or authorised by this agreement to be given by any party may be given by hand or sent (by recorded / special / international signed-for delivery) to another party at its registered office or at the address shown on this agreement or such other address as that party may notify to the other party for this purpose from time to time or, unless stated otherwise, by email.

15.2 Any notice or other information given by post which is not returned to the sender as undelivered shall be deemed to have been given on the second day after the envelope containing the same was so posted and proof that the envelope containing any such notice or information was properly addressed pre-paid, registered and posted, and that it has not been so returned to the sender, shall be sufficient evidence that such notice or information has been duly given.

15.3 Any email shall be deemed to have been received on the date of transmission provided that the email has not been returned.

16. GENERAL

16.1 In this agreement the word "including", unless the context otherwise requires, shall mean "including without limitation". The headings in this agreement are for convenience only and shall not affect its interpretation.

16.2 This agreement and any document incorporated herein by reference constitute the entire agreement between the parties with respect to its subject matter and supersedes any previous communications or agreements between the parties. Both parties acknowledge that there have been no misrepresentations and that neither party has relied on any pre-contractual statements. Liability for misrepresentation (excluding fraudulent misrepresentation) relating to the terms of this agreement is excluded.

16.2.1 Ping Media Network Ltd's Affiliate Network terms and conditions are the governing and legally binding contract which shall supersede all prior and post agreements or other advertiser contracts that the affiliate may have Ping Media Network Ltd sign. In the event of a legal dispute these terms and conditions shall prevail.
16.3 Except insofar as provided otherwise in this agreement, nothing in this agreement will constitute or be deemed to constitute a partnership or joint venture between the parties and neither party has express or implied authority to bind the other in any manner whatsoever and neither party will purport to do so.

16.4 The Affiliate shall not assign or subcontract any part of its obligations under this agreement without the prior consent in Writing of the Company.

16.5 The failure of a party to exercise or enforce any right under this agreement shall not be deemed to be a waiver of that right nor operate to bar the exercise or enforcement of it at any time or times thereafter.

16.6 If any provision of this agreement is held to be unlawful, void or unenforceable in whole or in part, this agreement shall continue in force in relation to the unaffected provisions and the remainder of the provision in question, and the parties will renegotiate the offending provision in good faith to achieve the same objects.

16.7 Save insofar as expressly provided otherwise in this agreement, no third party may enforce any clause in this agreement under the Contracts (Rights of Third parties) Act 1999.

16.8 This agreement shall be governed by and construed in all respects in accordance with the laws of The Seychelles and each party hereby submits to the exclusive jurisdiction of the courts of The Seychelles.



Version: 5
Effective date: 06/10/20
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