We reserve the right to change these Terms & Conditions at any time, effective immediately upon posting on the site. Although we might provide notice of material changes to this Agreement, it is your sole responsibility to keep yourself informed of any such changes or amendments.
“Shinemobi Affiliate Program” – means Shinemobi Affiliate Program available at http://ooommm.tmweb.ru, including advertisers and affiliates.
"Client" means a client of the Program
"Sub-Affiliate" means an independent third party contracted by the Affiliate.
"Program Site" means the website for the Program operated by Shinemobi and situated at http://ooommm.tmweb.ru
“Offer” – means certain actions set up by an Advertiser and published by the Program on the Program Site, in an electronic mail or both, setting out an advertising offer on behalf of a Client and containing such additional terms and conditions as the Client and the Program, in their discretion, consider necessary from time to time.
“Creative” means materials of any type used under this Agreement, including, but not limited to, buttons, banners, text-links, pop-ups, pop-unders and text, possible mobile web link, and/or graphic file or file of such other format to be displayed for the purpose of digital marketing.
“Confidential Information” – will include any information, whether provided in writing, orally, visually, electronically or by other means, related to the Services and/or business of a party and is treated as confidential or secret by the party, including but not limited to all information marked as “Confidential,” “Proprietary,” or similar legend by the disclosing party (“Discloser”) when given to the receiving party (“Recipient”); and information and data provided by the Discloser, which under the circumstances surrounding the disclosure should be reasonably deemed confidential or proprietary.
“Unit Price” means the average cost of a unit, which is specified in the IO or in the Offer terms set forth on the Program Site and may vary considerably according to the applicable Pricing Model.
“Volume” means the inventory (e.g., the amount of clicks, impressions, installations or other desired actions) where the CPC, CPM, CPI or CPA pricing models apply; the amount of billable time-based units where the CPT pricing model applies; or the amount of other deliverables as specified in the IO.
“Price” means the Volume respectively multiplied by the Unit Price as specified by this Agreement.
In order to participate in the Program, Affiliate will be required to create an account with us ("Account").
In creating Account, Affiliate certifies that all information Affiliate provides is complete and accurate. Affiliate agrees to update such information when required or requested, and further agrees not to use another person's account without permission. Affiliate is responsible for maintaining the confidentiality of, and restricting access to, Account and password, and agrees to accept sole responsibility for all activities that occur under Account or password. Affiliate agrees to notify us immediately of any breach of security or unauthorized use of Account. We shall not be liable for any losses, damages, liabilities or expenses caused by any unauthorized use of Account, and Affiliate agrees to indemnify us and hold us harmless for any such unauthorized use.
During the term of this Agreement, Shinemobi Affiliate Program grants Affiliate a non-exclusive, non-transferable, revocable license to use, reproduce, transmit and distribute the Creative, solely in accordance with the details set forth on the Program Site. Affiliate shall render media publication services ("Services") as instructed by Shinemobi for each advertising campaign and Affiliate shall be responsible for providing the Services in accordance with these Terms. Affiliate shall only use Creatives provided by Shinemobi which may include but not limited to any graphic file and/or any and all accompanying printed, hand written or electronically transferred information supplied by Shinemobi to Affiliate to be displayed for advertising purposes. Affiliate shall not alter, edit or supplement any Creative in any way without the prior written approval of Shinemobi, prior to rendering Services. Likewise, any alternative creative content created by Affiliate (“Alternative Content”) must be approved in writing by Shinemobi prior to rendering Services with such content.
Unless otherwise agreed in writing by Shinemobi, Affiliate agrees that any approved edited or supplemented Creative or Alternative Content approved by Shinemobi will become the property of Shinemobi Affiliate Program. If otherwise agreed in writing by Shinemobi that Affiliate shall own any approved edited or supplemented Creative or Alternative Content, then Affiliate grants the Program an assignable, exclusive, worldwide license to copy, display, publish, modify, perform, distribute and sell the edited or supplemented Creatives or Alternative Content.
Shinemobi Affiliate Program does not permit and has a zero tolerance policy for Prohibited Conduct by any Affiliate or any of Affiliate’s affiliates and/or sub-affiliates. Affiliate or any of Affiliate’s affiliates, or sub-affiliates caught engaging in Prohibited Conduct may be immediately terminated by Shinemobi, and are subject to forfeiture of any monies due, legal action by Shinemobi Affiliate Program and any other recourse in Shinemobi's sole and absolute discretion. Without diminishing any other rights or obligations of either party herein, Affiliate acknowledges that if it receives notice that fraudulent activities or Prohibited Conduct may be occurring on Affiliate’s sites(s) or related media, and Affiliate does not take any immediate actions to stop the fraudulent activities or Prohibited Conduct, then Affiliate will be solely responsible for all associated costs and legal fees resulting from these fraudulent activities or Prohibited Conduct.
Affiliate shall not:
By accessing the Program, store, transmit, distribute, disseminate, publish or post any content in such a way as to breach any applicable Law, Shinemobi Affiliate Program policy or guideline, or to infringe the rights (in particular, the Intellectual Property Rights) of, or restrict or inhibit the access to and enjoyment of the Services by, any other person;
Perform Services through email marketing without complying with any and all applicable laws and regulations pertaining to the dissemination of emails in the applicable territory.
Share, display or disclose any Creative that may be considered to contain the following content: any content that contains or promotes concepts that are hateful or disparaging towards any race, religion, gender, sexual orientation or nationality; any content that promotes firearms, bombs and other weapons or how-to guides for any of the above; any content that contains false, misleading or deceptive representation (as determined by the Program at its sole discretion); any content that contains, promotes or links to indecent, obscene or highly explosive subject matter (as determined by Shinemobi Affiliate Program at its sole discretion); any content that facilitates or promotes illegal file-sharing (MP3s, copyright protected video, or the equivalent); any content that contains or promotes illegal activities, including without limitation to hacking, phreaking or phishing; or any content that has the potential to create liability for Shinemobi Affiliate Program or cause Shinemobi to violate the requirements of or to lose the services, in whole or in part, of other Internet service providers.
Perform Services that are not in compliance with an applicable IO or any instructions communicated in writing by Shinemobi Affiliate Program; that are flagged as fraudulent; through anonymous proxy or VPN servers, bots, automated scripts or zombie networks; through lead stuffing; by incentivizing consumers with cash, rewards, points, prizes, or content locking unless otherwise agreed in the IO or set forth as not restricted on the Program Site; through spyware, adware, hacking, phishing, cracking, instant messaging, via click fraud, unsolicited commercial email, illegal downloads of any kind; or any other activity generally understood to be abusive in the sole discretion of Shinemobi Affiliate Program.
Perform Services through any illegal act or by way of deceptive practices, including violating the intellectual property, proprietary or publicity rights of a third party.
Affiliate understands and agrees that from time to time Shinemobi’s websites, applications or other services related to Shinemobi Affiliate Program may be inaccessible, unavailable or inoperable for any reason, including, without limitation, equipment malfunctions; periodic maintenance procedures or repairs which Shinemobi may undertake from time to time; or causes beyond the control of Shinemobi or which are not reasonably foreseeable by Shinemobi, including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks, the unavailability, operation, or inaccessibility of websites or interfaces, network congestion or other failures. While Shinemobi will attempt to provide the services on a continuous basis, Affiliate acknowledges and agrees that Shinemobi has no control over the availability of the services on a continuous or uninterrupted basis. Affiliate also understands and agrees that Shinemobi is not responsible for the functionality of any third-party website or interface. Shinemobi’s failure to deliver because of technical difficulties does not represent a failure to meet the obligations of these Terms.
The Price will be solely based upon the Volume compiled by Shinemobi Affiliate Program tracking and reporting system. Shinemobi Affiliate Program will provide Affiliate with a report on monthly basis, unless otherwise agreed in the IO detailing the Volume in relation to the campaigns. The aforesaid report will be broken out by day and be sent by the 15th of every following month. Affiliate agrees to accept the Shinemobi Affiliate Program report as the official basis for measuring the Volume and acknowledges that it shall not be entitled to any further information on the Volume. Affiliate further acknowledges that in some cases, Shinemobi Affiliate Program will need to make adjustments to reported statistics due to specific contractual provisions (e.g. Fraudulent Activities), statistical errors, or third party tracking.
The Unite Price includes all direct, indirect taxes, commissions, duties, and other similar levies and expenses that may arise in connection to the applicable IO and these Terms, and no other amounts apart from the Unite Price shall be imposed on Shinemobi Affiliate Program. Any commission fees regarding to the money transfer shall be borne by Affiliate except commission fees from Shinemobi Affiliate Program’s side.
Affiliate acknowledges and agrees that Shinemobi Affiliate Program will not be required to pay Affiliate until the amount owed to Affiliate is equal or exceed one hundred U.S Dollars (USD100.00), otherwise the payment will be carried over to the next billing cycle. If Affiliate requests payment from Shinemobi Affiliate Program for Price less than the said threshold, Shinemobi Affiliate Program shall transfer the Price to Affiliate but all commission fees will be borne by Affiliate.
Shinemobi Affiliate Program shall pay the Price in full to Affiliate within 30 days after receiving the invoice from Affiliate. Unless Shinemobi Affiliate Program has prepaid, Affiliate will issue the invoices on a monthly basis upon its receipt of the aforementioned reports from Shinemobi Affiliate Program. The invoice shall cover only those inventory that meet the criteria specified in this Agreement. Affiliate must send the invoices in time, otherwise Shinemobi Affiliate Program shall not bear any liability of late payment therein. All amounts payable to Affiliate under this Agreement will be paid in US Dollars to Affiliate’s designated payment details. Affiliate may update its payment details from time to time during the Term by providing Shinemobi Affiliate Program with the update. Affiliate is responsible for updating and providing all contact information and payment details in a timely fashion. Shinemobi Affiliate Program shall be excused from making any payments if such information is not provided, not provided upon request, or is incorrect.
While performing Services for Shinemobi Affiliate Program, confidential information about Shinemobi Affiliate Program's or third parties’ businesses ("Confidential Information") may be disclosed to Affiliate. Confidential Information includes, without limitation, these Terms or any IO, Shinemobi Affiliate Program's or third parties’ Advertising Materials, payments and pay structure, login and password, if applicable, business plans, partnership/affiliation arrangements, Shinemobi Affiliate Program’s clients, financing arrangements, technical data, and financial data. In addition, Confidential Information may include information concerning any of Shinemobi’s or Advertiser’s past, current, or possible future products or methods. Confidential Information does not include information which Affiliate shows is or becomes generally known by the public other than as a result of a disclosure by Affiliate; information which Affiliate can show was known by Affiliate prior to performance of Services and was not first disclosed to Affiliate by Shinemobi Affiliate Program, or information which Affiliate can show was independently developed by Affiliate without the participation of individuals who have had access to Confidential Information. Affiliate shall not disclose, in any form, oral, electronic or paper, Confidential Information by any means to any third party, and Affiliate shall only use Confidential Information for the purposes of performance of Services pursuant to this Agreement. Affiliate’s duties of non-disclosure and non-use shall continue during the term of these Terms and for a period of five (5) years thereafter. Affiliate agrees to disclose the identity and contact information of any affiliate or sub-affiliate suspected of breach of this Agreement to Shinemobi Affiliate Program.
Affiliate, on behalf of itself and any affiliate and/or sub-affiliate(s) it may use in performance hereunder agrees to hold harmless, defend and indemnify Shinemobi and its Associated Entities, and their respective officers, directors, shareholders, employees, agents and other Representatives, against any pending, threatened, resolved or settled Third Party claims, liabilities, demands, judgments or causes of action, and costs and expenses related thereto (including reasonable attorneys’ fees and costs) (collectively "Claims"), arising out of: (i) Affiliate’s breach of its representations, warranties, liabilities or obligations under this Agreement; (ii) Affiliate or its affiliate and/or sub-affiliate(s)’ breach of any applicable law or failure to advise Shinemobi of the requirements of any applicable law; or (iii) any gross negligence or willful misconduct of Affiliate or its Associated Entities or any of their respective directors, officers, employees, contractors, agents or its affiliate and/or sub-affiliate(s)
Shinemobi agrees to hold harmless, defend and indemnify Affiliate and its Associated Entities, and their respective officers, directors, shareholders, employees, agents and other Representatives, against any Claim arising out of: any breach of this Agreement by Shinemobi; or any gross negligence or willful misconduct of Shinemobi or its Associated Entities or any of their respective directors, officers, employees, contractors, agents or other Representatives.
Limitation of Liability
Neither party shall be liable to the other or any third party claimant for any indirect, special, punitive, consequential, or incidental damages, including, lost profits arising out of, or related to this Agreement, however caused and on any theory of liability including but not limited to negligence, even if such party has been advised of the possibility of such damages. In any event, Shinemobi's total liability to the Affiliate, or any third party claimant in respect of any losses arising under or in connection with this Agreement or related thereto, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the aggregate payment actually made by Shinemobi for the Services over the three (3) months period to the claim. For the avoidance of doubt, nothing in this Agreement excludes or limits either party’s liability for fraud, gross negligence, death or personal injury or any other matter to the extent such exclusion or limitation would be unlawful.
Representations and Warranties
Both parties hereby represent that they are authorized to enter into this Agreement. Affiliate represents and warrants that it has and will have full power and authority to fulfill all of its obligations hereunder and in doing so it will not breach any existing contractual obligations with third parties and that it is authorized to bind any third parties necessary to create and fulfill the specified obligations; Affiliate’s Services shall not violate any laws, rules and regulations relating to privacy, the internet, and unfair business practices in the applicable territory, and shall not infringe upon the intellectual, proprietary or publicity property rights of another; it shall use the most current Creatives as provided by Shinemobi; it will not use technical or other tactics to deceive or mislead end users or to create inaccurate results hereunder; it understands that these Terms apply to any and all affiliate(s) and/or sub-affiliate(s) which Affiliate may use to perform the Services; that it shall be solely responsible for its, and its affiliates or sub-affiliates that may be used to perform the Services, compliance with these Terms; upon receipt of notice by Shinemobi to cancel or put a Campaign on hold, it shall no longer run or offer such Campaign; it will not contact any Advertiser participating in a Campaign directly, will not use any other party’s creative materials or URL with the Creatives, and it will not sign up with or through any other party to participate in any Shinemobi Campaign at any time during this Agreement or within 3 years after its termination. In the event that Shinemobi is assessed any penalties and/or fines by an Advertiser as a result of Affiliate’s actions, including but not limited to Affiliate’s participation in any advertising campaigns, Affiliate acknowledges and agrees that Shinemobi shall pass all such penalties and/or fines on to the Affiliate and Affiliate shall be solely responsible for payment of such penalties and/or fines.
Each Party acknowledges and agrees that this Agreement may be terminated by the mutual written agreement of the Parties. Either Party may terminate this Agreement upon the material breach of this Agreement by the other Party hereto if the breaching Party fails to cure the breach within 30 days after receiving written notice of such breach from the non-breaching party.
Unless designated on the IO as non-cancelable, either Shinemobi or Affiliate may terminate these Terms, with a 48 hour written notice.
Any breach of this Agreement by Affiliate or Affiliate’s affiliate, or sub-affiliate may result in immediate termination at the discretion of Shinemobi. Shinemobi may terminate any advertising campaign, upon one (1) Business Day’ s notice, and upon termination, Affiliate shall immediately cease all performance of Services or such advertising campaign, and notify its affiliates, and/or sub-affiliates immediately, as applicable, to do the same upon receipt of notice. The term of this Agreement shall begin upon the Effective Date and terminate when all Services have been completed and accepted. Unless otherwise stated in this Agreement, any obligations which by their nature are to continue after termination or expiration shall survive and remain in effect for a period of five(5) year after such happening.
Each Party is an independent contractor and nothing in these Terms should be construed to create a partnership, joint venture, or employer-employee relationship between the parties. Affiliate is not the agent of Shinemobi or Advertiser and is not authorized to make any representation, contract, or commitment on behalf of Shinemobi or Advertiser.
Any waiver of a provision of this Agreement must be in writing and signed by the party to be charged. A valid waiver hereunder shall not be interpreted to be a waiver of that obligation in the future or any other obligation under this Agreement.
Neither Party may directly or indirectly assigns or otherwise transfers its rights or obligations under this Agreement in whole or in part without the express written consent of the other Party. Any assignment or transfer or attempt to assign or transfer of this Agreement or the rights granted herein without the written consent of the other Party shall be void.
These Terms are executed in English. If necessary, they may be translated into other languages. However, if there’s any conflict, ambiguity or discrepancy between the English version and a version in any other language, the English version shall prevail.
These Terms (together with the applicable IO) constitute the entire agreement between the parties concerning the subject matter hereof. These Terms replace and fully supersede any prior verbal or written understandings, communications, or negotiations between the parties.