Terms
1. Applicability
1.1 The following terms and conditions (hereinafter: “Terms and Conditions”) shall apply to any of the Services (as defined below)to be provided to ADCPA (hereinafter: “ADCPA”),incorporated under Andorran law, acting under the trade name Mirasol Media SL, having its registered place of business at Avenida Meritxell 38, 4-2 (AD500) Andorra La Vella, Andorra with VAT nr L-716378-Z
1.2 By signing up, registering or otherwise enrolling as an affiliate or publisher of ADCPA on ADCPA’s network, the Affiliate (as defined below), its agents, representatives, employees and any other person acting on its behalf with respect to the use of the Service shall be bound by – and agrees to be bound by – these Terms and Conditions to the exclusion of all other terms and conditions,including any terms or conditions which are implied by trade, custom,practice or course of dealing or which the Affiliate may purport to apply or which are endorsed upon any correspondence or documents issued by the Affiliate irrespective of their date of communication to ADCPA.
1.3 ADCPA’s registration form on its website constitutes an offer by ADCPAfor the Affiliate to provide the Services specified herein in accordance with these Terms and Conditions. The Terms and Conditions shall be deemed to be accepted by the Affiliate on the earlier of: (i) the Affiliate completing the registration processon ADCPA’s website; (ii) the Affiliate placing any Adswithin its Medium, or (iii) the Affiliate doing any act consistentwith fulfilling the Services, at which point the Agreement shallcome into existence.
2.Services
2.1 An Agreement shall come into force between ADCPA and the Affiliate upon its acceptance as an affiliate or publisher within ADCPA’s network and shall remain in effect until terminated. ADCPA may deny acceptance of any Affiliate for any reason at anytime and shall not be obligated to inform the Affiliate of the reason of rejection.
2.2 In order for the Affiliate to perform the Service:
a) ADCPA shall use the Provided URL in order to create the Tracking Code;
b) ADCPA shall generate derivative URLs for the Affiliate (in order to, without limitation, target the Country) (the “Derivative URL”);and
c) ADCPA shall deploy/utilize the Tracking Code for further use of internal real-time statistics for accurate and real-time reconciliation with Advertiser and the Affiliate.
2.3 The Affiliate shall place (links with) the Derivative URL on its Medium. Only an Advertiser shall be responsible for placing and maintaining the Tracking Codes on the proper Landing Pages.
2.4 ADCPA has the right to suspend the Service with or without cause at any time; for example, in the event that one of the following situations occurs and for at least the duration of this situation and the duration of its resultant effects:
a) the Affiliate’s company name, VAT number, address and contact persons are not filled out properly in ADCPA’s database.
b) the registration form is not completed properly and/or submitted by duly authorized representative(s) of the Affiliate.
c) the Affiliate for whatever reason does not/no longer duly and effectively comply with the privacy policy or the notice of take down procedure of ADCPA.
d)the Affiliate has not fulfilled any of its obligations under theAgreement.
2.5 ADCPA shall monitor and register the Traffic generated on the Mediums.
2.6 ADCPA does not provide any guarantee whatsoever regarding the results of any Campaign.
2.7 The Affiliate will be solely responsible for the development,operation, and maintenance of its Medium and for all materials that appear on it. ADCPA disclaims any and all liability and responsibility for such matters.
2.8 The Affiliate shall procure that each Campaign shall be localized properly. The Affiliate represents and warrants that the Campaign and the Ads are in accordance with the following minimum requirements:the Campaign and Ads (i) are translated in the correct languages,applicable for the Countries; (ii) are in complete conformity with any and all national and state laws and legislations of the Countries; (iii) are in complete conformity with any and all regulations of any body charged with the enforcement of a (statutory)regulation, including without limitation regulations applied by rating bodies (e.g. ESRB, USK, etc.) (iv) are provided with applicable age rating. The Affiliate shall indemnify ADCPA against and hold it harmless from any claim from any third party relating to the aforementioned guarantees and on any other grounds.
2.9 The Service may be modified, amended, changed or terminated by ADCPA for practical reasons at any time upon written notice(including email) to the Affiliate. In the event that the Affiliate does not accept the modifications, amendments and/or changes, the Affiliate shall have the right to cease to perform the Service upon immediate notification to ADCPA, so that ADCPA can pause or terminate the Service.
3. Payment
3.1 ADCPA will request conversion statistics from the Advertiser(s)periodically.
3.2 Based on the ADCPA Statistics, ADCPA will invoice the Services to itself on behalf of the Affiliate, whereby the invoicing and payment terms shall be determined by the designated account manager at ADCPA.
3.3 In the event that the Affiliate wishes to dispute the accuracy of an invoice and/or the ADCPA Statistics, the Affiliate must notify the dispute to ADCPA without delay upon receipt of the disputed invoice but in no event later than within seven (7) days of the date of said invoice. If no disputes are made by the Affiliate regarding an invoice from ADCPA within seven (7) days of the date thereof,the invoice will be deemed accepted by the Affiliate.
3.4 No deductions, chargebacks or credits will be accepted by ADCPA except with its prior written approval. A fraudulent lead must be sent to ADCPA’s network account manager with full evidence proving that the lead, sale, action and/or install are actually. An advertiser has seven (7) days from the invoice date to provide proof of fraud or subpar traffic quality to ADCPA when requesting denial of conversions. Upon receipt of these reports, those will be evaluated by ADCPA’s network account manager.
3.5 ADCPA will pay Affiliate for each Qualified Action (the “Commission”). A “Qualified Action” means an individual person who (a) accesses the Program Web Site via the Link, where the Link is the last link to the Program Web Site, (b) is not a computer generated user, such as a robot, spider, computer script or other automated, artificial or fraudulent method to appear like an individual, real live person, (c) is not using pre-populated fields (d) completes all of the information required for such action within the time period allowed by ADCPA and (e) is not later determined by ADCPA to be fraudulent, incomplete, unqualified or a duplicate (f) does not later request a refund or initiate a chargeback or reverse a payment. In addition, we may reject an action which is not a lead or sale from the country of origin. We reserve the right to reject any action, which is not a Qualified Action under this Agreement as amended from time to time. We reserve the right to switch your account from a Pay Per Lead program to a Pay Per Sale program. For all Affiliate Programs where the payable action is a sale (Pay Per Sale “PPS” and/or Pay Per Trial “PPT”) we reserve the right to do the following: if an Affiliate is paid for a given Action but the respective sale is refunded afterwards we can deduct the commission amount paid for this Action from any future commission due to the Affiliate.
3.7 ADCPA is not able to send out any wire nor paypal payments to affiliates coming from the following countries. Burundi, Central African Republic, Chad, Democratic Republic of the Congo, Eritrea, Guinea-Bissau, Libya, Somalia, South Sudan, Sudan, Cuba, Venezuela, North Korea, Belarus, Crimea, Russian Federation, Afghanistan, Iran, Iraq, Syria and Yemen
4. Term and termination
4.1 The Agreement shall come into force on the Effective Date and shall remain in effect for a term of one (1) year after which it will be extended automatically by consecutive periods of one (1) year each,unless terminated as per this clause 5.
4.2 The Affiliate shall be entitled to terminate its registration with ADCPA or the Agreement with or without cause by written notice to ADCPA with a notice period of at least seventy-two (72)hours.
4.3 In the event ADCPA informs the Affiliate that an Advertiser elects to pause a Campaign at any time, the Affiliate will procure that the requested pause will take effect within forty-eight (48)hours as from the notification (including by email) from ADCPA,unless ADCPA specifically instructs the Affiliate otherwise at that time.
4.4 ADCPA shall be entitled to terminate the Agreement or suspend the Service (partly, for example regarding one or more Campaigns, orin its entirety) with or without cause by written notice to the Affiliate with immediately effect at any time.
4.5 Upon termination of the Agreement, the Affiliate shall cease to use the Service immediately and delete all links to the Landing Page(s)and delete or expunge from its computer any Confidential Information of ADCPA or an Advertiser. For the avoidance of doubt, the Affiliate shall not be entitled to receive any commission on any Conversions made after the termination date, but it will not discharge the Affiliate from its obligations under the surviving provisions of the Agreement, in particular clause 6 (confidentiality and Intellectual Property Rights).
5. Confidentiality and Intellectual Property Rights
5.1 The Affiliate shall keep confidential all Confidential Information from, or received from, ADCPA or an Advertiser and the content of any confidential communication with ADCPA or an Advertiser in connection with these Services, and shall not disclose such information or communication to any person.
5.2 Clause 6.1 does not apply, if and to the extent that: (i) disclosure is permitted by the Agreement, (ii) disclosure is required by applicable law, (iii) disclosure is made to any court or regulatory or governmental body, as required or reasonably necessary in connection with the relevant party’s dealings with a court or regulatory or governmental authority, (iv) disclosure is necessary to enforce the Agreement, or (v) the disclosing party has given its written consent to the disclosure. In the event of disclosure of information pursuant to subparagraphs (ii) and (iii), the disclosingparty shall – to the extent reasonably practicable and permitted –consult with the other party as to the contents, form and timing of the disclosure to be made.
5.3 ADCPA owns, or has the rights to, all Intellectual Property Rights, know how or any other rights connected to ADCPA and its services to Advertisers.
5.4 Each Advertiser shall exclusively be responsible for (i) any information, products, materials, elements, artwork, creations,drafts and all other work included in any Ads, the Landing Page(s) or Advertiser’s website and (ii) such work not being offensive or prohibited in any way.
6. Code of conduct and compliance
6.1 At all times, the Affiliate shall comply with ADCPA’s privacy policy.
6.2 The Affiliate shall comply with all applicable law and regulations at all times, including applicable law relating to the collection of personal data .
6.3 The Affiliate shall procure that none of its Mediums contain false,untrue or misleading information.
6.4 The Affiliate consents to the processing of personal data provided within the organisation of ADCPA, whether or not in connection with the Service, to all those people within the organisation of ADCPA who may be able to use such information in relation to the Service or in managing the relationship with the Affiliate. The Affiliate also consents to the use of any communication method customarily in use at such time, including but not limited to email and the internet, and to ADCPA sending newsletters and other information for marketing purposes.
6.5 ADCPA shall be allowed to place cookies at the Landing Page(s)and any Medium. These cookies placed by ADCPA are valid for at least thirty (30) days after first visit of a visitor. ADCPA has the right to collect data, including but not limited to personal datain anonymous form, but excluding personal data covered under the General Data Protection Regulation. In the event that ADCPA does collect personal data under the General Data Protection Regulation, a separate processor’s agreement will need to be executed. If the Affiliate places cookies on its Medium, the Affiliate shall obtain all required consents from any user or person to place cookies and/or to process (personal) data or supply personal data to third parties for any purpose.
6.6 ADCPA may install multi-level fraud detection to optimize the prevention of Artificial Traffic. When Artificial Traffic is detected by ADCPA’s fraud detection, the Affiliate will be informed there of. In the event that the Affiliate detects Artificial Traffic,it must inform ADCPA without delay by written notice (including email).
6.7 If Adthorize determines, in its sole discretion, that the Affiliate or Sub-Affiliate has engaged in any activity that ADCPA considers to be fraudulent or which might bring the reputation or standing of ADCPA into disrepute either with the general public or with the Clients or potential Clients of ADCPA, or otherwise that the Affiliate or Sub-Affiliate has engaged in activities which might be considered fraudulent, ADCPA may but will not be obligated to (a) suspend or terminate the Affiliate’s membership in the Program, without notice and (b) release to a regulatory body or any governmental authority, information relating to the identity and location of the Affiliate if required to do so in order to comply with existing legislation. In the event of suspension or termination any Commission due and payable to the Affiliate at the time of suspension or termination will be deemed to be forfeited. For the purposes of this Agreement, fraudulent activity includes but is in no way limited to: activity by the Affiliate or anyone for whom in law the Affiliate is responsible which is directly or indirectly intended to inflate the Commissions payable to the Affiliate; the generation of leads other than by a mechanism approved by ADCPA; activity by the Affiliate or anyone for whom in law the Affiliate is responsible which is not in accordance with the Program; activity which is determined by the Client, in its discretion, to be fraudulent.ADCPA may at any time audit Affiliate for compliance purposes. Affiliate agrees to provide ADCPA with any reasonable information necessary to conduct an investigation into Affiliate’s compliance with law and this Agreement.
6.8 You are expressly prohibited from using any persons, means, devices or arrangements to commit fraud, violate any applicable law, interfere with other affiliates or falsify information in connection with referrals through the Links or the generation of Commissions or exceed your permitted access to ADCPA. Such acts include, but are in no way limited to, using automated means to increase the number of clicks through the Links or completion of any required information, using spyware, using steal-ware, cookie-stuffing and other deceptive acts or click-fraud. ADCPA shall make all determinations about fraudulent activity in its sole discretion. Affiliate will not fraudulently add leads or clicks or inflate leads or clicks by fraudulent or scams traffic generation. Company has a right to decline and not to pay for leads generated via hosting proxy / VPN and other unacceptable tools and techniques. Any fraud, attempted or actual, shall be immediate grounds for us to terminate your account and withhold any and all sums outstanding to you.
7. Limitation of liability
7.1 In no event will ADCPA or any of its subsidiaries, affiliates,partners, licensors or suppliers be liable for any direct, indirect,consequential, punitive, special or incidental damages resulting from, arising out of or in connection with the access, use of, or inability to access or use the Service, even if ADCPA has been advised of the possibility of such damages, except to the extent that such damages arise directly and solely from wilful misconduct or gross negligence on the part of ADCPA.
7.2 In no event will ADCPA be liable for defects in the Service,interruptions in accessibility to the Service, Landing Page(s) or ADCPA Statistics, infringements on data or loss of data on the information handling system, defects in the security system or viruses or other harmful software components; or for any damage caused by viruses or components of software and/or an Advertiser’s website. ADCPA shall not be liable for any error in the implementation of the links on an Advertiser’s website or for the specified function of the links. Additionally, ADCPA has no control over, and shall therefore not be liable for, the acts or omissions of any other affiliates or publishers, whether within or outside its network, or any other third parties. ADCPA shall not be liable in any way for any agreements made directly between an Advertiser and any third parties.
7.3 If and to the extent any exclusion or limitation of liability or disclaimer of warranty set out in this clause 8 shall not be allowed under applicable law, such exclusion, limitation or disclaimer will not apply to the Affiliate, but only to the extent it shall not be allowed. In such case, such exclusion, limitation or disclaimer shall be limited to the extent required by applicable law.
7.4 Except to the extent that liability cannot be limited under applicable law, any and all liability of ADCPA is limited to the amount paid out, if any, under its liability insurance coverage in the matter concerned. In the event and to the extent that no monies are paid out under its liability insurance for whatever reason, any and all liability of ADCPA shall be limited to a maximum amount of € 5,000 (five thousand Euros).
7.5 In any event, a claim on ADCPA shall lapse in case ADCPA did not receive written notice of such a claim no later than within twelve months after the earlier of (i) termination of the Agreement and (ii) the discovery by the Affiliate of an event or circumstance that gives or may give rise to that claim.
7.6 The Affiliate shall indemnify and hold ADCPA, its subsidiaries,and each of their respective officers, directors, partners, members,managers, employees, agents and attorneys harmless from and against all third party claims that arise from or are in any way connected to the Services from the Affiliate, unless such claims result from wilful misconduct or gross negligence by ADCPA. This indemnification includes any legal costs.
8. Miscellaneous
8.1 The Affiliate represents and warrants to ADCPA that any information provided to ADCPA regarding it and its business shall be true, accurate and complete. The Affiliate shall notify ADCPA without delay by email of any changes in its information.
8.2 These Terms and Conditions, including ADCPA’s code of conduct and notice and take down procedure, may be amended by ADCPA at any time. Such amendment shall be effective upon notification to the Affiliate or publication on ADCPA’s website. By continuing to provide the Services after such publication or notification, the Affiliate will be deemed to have accepted such amendments.
8.3 If any provision of the Agreement or part thereof should to any extent be or become invalid or unenforceable, the parties shall agree upon any necessary amendment of the Agreement in order to achieve the interests and objectives of the parties prevailing at the time of execution of the Agreement.
8.4 The Affiliate may not assign or pledge its rights or obligations under the Agreement in whole or in part to any third party without the prior written consent of ADCPA.
8.5 Any changes to the Agreement proposed by the Affiliate must be mutually agreed upon between ADCPA and the Affiliate in writing(including via email) before they have effect.
8.6 A decision by ADCPA to not invoke its rights does not constitute a waiver of these rights.
8.7 Nothing in these Terms and Conditions or in the Agreement shall create or be deemed to create a partnership or relationship of employer and employee between ADCPA and the Affiliate.
9. Applicable Law
9.1 The legal relationship between ADCPA and the Affiliate, these Terms and Conditions and the Agreement shall be exclusively governed by Andorran law.
9.2 In the event of any dispute relating to or arising from the Agreement that cannot be resolved amicably between ADCPA and the Affiliate, the dispute shall be exclusively decided by the competent court in Barcelona, Spain, without prejudice to the right to lodge an appeal.
10. Referral Program
10.1 For each third-party Affiliate that the Affiliate has referred to ADCPA through a unique referral link received from ADCPA, the Affiliate will have the right to be paid 2.50% (2.50 per cent) of the referred Affiliate's earnings for 10 months from the date the refered affiliate has signed up.
10.2 For this purpose, the Parties agree that only the newly referred Affiliates will be eligible for ADCPA´s Referral Program and that no individuals or companies with pre-existing accounts shall be considered eligible for the effect. If the affiliate refers another affiliate who sends fraud, then all earning and referrall commissions will be nullified and will result in the termination of the commission agreement.
10.3 Referral commissions start to accrue when the Referred Affiliate(s) bills get paid, not on traffic origin (so as to include the most up-to-date amounts).
10.4 Referral commissions can be withdrawn as soon as the minimum threshold of $250 is reached and will be added to the Affiliate's payment on 26th of the next each month(net26).
All Affiliates must comply with this Code of Conduct in full.
This Code of Conduct has been prepared to protect the rights and safety of all. However, each Affiliate is and remains responsible and liable for its actions and ADCPA assumes no responsibility or liability to that respect. For the avoidance of doubt, ADCPA is not responsible for content on third party websites and does not accept any liability for content on third party websites.
1. Each Affiliate must comply with all laws, rules and regulations that are applicable to their activities, including but not limited to those pertaining to marketing, privacy, social media, consumer protection and advertising. Each Affiliate must further comply with all applicable industry best practices and guidelines.
2. Each Affiliate must in any event:
a) refrain from any illegal, unlawful or inappropriate acts (such as, but not limited to: criminal acts (e.g. discrimination, racism, defamation, abuse, phishing, fraud, SPAM etc.), tortuous acts, copyright infringement, trademark infringement or infringement of any other IP rights, privacy infringement, the use of malware or spyware etc.);
b) refrain from using personal information about someone (including his/her name) unless the Affiliate has the prior written approval from the relevant person;
c) comply with all guidelines set forth by relevant authorities, such as consumer and market authorities (including, but not limited to: the Spanish ‘Centro Europeo del Consumidor en España ’, the US Federal Trade Commission and any similar authority in all relevant or applicable jurisdictions). This includes that each Affiliate must guarantee that all reviews are clear and honest and that all reviews comply with consumer and advertising guidelines regarding testimonials and endorsements, including, but not limited to: the disclosure of (i) a material connection between the endorser and Affiliate, (ii) requests made to provide an endorsement and (iii) any compensation received by the endorser for its endorsement. Affiliates shall never use the word “free” or use a substantially equivalent claim, except if such claim is accurate;
d) not make any misrepresentations or publish misleading information;
e) modify or hide any specific disclosures or disclaimers;
f) observe and comply with the terms, conditions, guidelines and policies of all third party services they use, including but not limited to social media services, search engine marketing systems and other third party services;
g) refrain from using sweepstakes entries, lotteries, rewards, points or other participation incentives in their activities; not promote through CPA networks; not syndicate or broker offers to any third party without ADCPA prior written approval;
h) not include price information in their activities without prior written approval;
i) not circumvent any security measures or tracking systems nor attempt to automate or falsify activity through the links;
j) not modify the links or transaction tracker codes in any way;
k) not post content on public message boards, chat rooms, in public areas of social networking and/or job sites, including but not limited to MySpace.com, Facebook.com, Tagged.com, Craigslist.org, etc. without ADCPA prior written approval;
l) not create the impression that the website of the Affiliate or its services are provided or endorsed directly by ADCPA;
m) not display any content next to or one click away from third party content, if such third party content in itself would be in violation of this Code of Conduct;
n) comply with all data protection laws, rules and regulations in all relevant jurisdictions;
o) comply with all reasonable requests from ADCPA, including but not limited to, in respect of ADCPA’s Notice and Takedown Procedure.
3. In case an Affiliate makes use of automated systems or software for its activities, that Affiliate shall make sure that the use thereof shall not lead to a breach of this Code of Conduct. The relevant Affiliate is responsible and liable for any actions so taken.
4. An Affiliate is solely responsible and liable for the development, operation and maintenance of its website(s) and database(s) and for any and all content that may appear on its website(s). For the avoidance of doubt, ADCPA is not responsible for content on third party websites and does not accept any liability for content on third party websites. In this respect reference is also made to the Notice and Takedown Procedure of ADCPA.
5. Affiliates shall ensure that all its activities comply with relevant legal rules and regulations regarding SPAM (such as, but not limited to: Act 34/2002 of 11 July on Information Society Services and Electronic Commerce), and shall ensure that at least the following terms are met:
a) all email lists must be opt-in lists whereby the recipient has pre-approved and agreed to receive email messages specifically from the Affiliate. No rented, leased or third party lists may be used;
b) an Affiliate may not advertise in any way that effectively conceals or misrepresents its identity, its domain name or their return e-mail address;
c) the Affiliate is the sender of the email, pursuant to (anti-)SPAM rules (this includes that (i) the Affiliate must be identified in the “From:” field of the email, (ii) the Affiliate must state in the email how the Affiliate obtained the recipient’s email address and (iii) the Affiliate must make clear that ADCPA is not the sender of the email);
d) prior to sending any emails, each Affiliate must submit its mailing list to ADCPA’s designated third party list-cleansing service to remove any names that are on ADCPA’s suppression list;
e) an Affiliate shall not send email traffic from its own databases or from third party databases to any of the ADCPA offers. All traffic related to email promotions will be rejected and marked as unqualified.
6. An affiliate shall delete, recall and cease the use of content of ADCPA immediately after their participation in the relevant program ends.
7. An Affiliate represents and warrants that it will respond to all consumer complaints within twenty-four (24) hours of notification. In this respect reference is also made to Addthorized.’s Notice and Takedown Procedure.
8. Each Affiliate shall maintain a privacy policy (“Affiliate Privacy Policy”) that complies with all applicable privacy laws, rules and regulations in each relevant jurisdiction. The Affiliate Privacy Policy shall at least include that each website of an Affiliate allows third parties, including Clients, to place content within its media, and that each such website is allowed to share any information so collected with third parties, such as Clients, as contemplated thereunder.
9. In case of an alleged breach of this Code of Conduct by an Affiliate, that Affiliate shall comply with all investigations and requests from or on behalf of ADCPA and the relevant Affiliate shall provide all information necessary in connection with such investigation or inquiry to ADCPA.
10. Each Affiliate acknowledges that in the event that the Affiliate has breached this Code of Conduct, its name and address may in certain circumstances be disclosed by ADCPA to a third party.
11. Each Affiliate acknowledges and agrees that by clicking on the button labelled “I Agree” (or similar links as may be designated by ADCPA) the relevant Affiliate agrees to the relevant agreement(s), terms and conditions or further code(s) and/or procedure(s) and that by doing so that Affiliate is submitting a legally binding electronic signature and is entering into a legally binding contract. The relevant Affiliate acknowledges that that Affiliate’s electronic submission constitutes Affiliate’s agreement and intent to be bound by the relevant agreement(s), terms and conditions or further code(s) and/or procedure(s).
12. ADCPA. may amend, supplement or revise this Code of Conduct at any time and such amended, supplemented or revised Code of Conduct shall automatically be applicable. Each Affiliate hereby pre-approves and agrees to any amended, supplemented or revised Code of Conduct.
13. EACH AFFILIATE ACKNOWLEDGES AND AGREES THAT A VIOLATION OF THIS CODE OF CONDUCT MAY RESULT IN TERMINATION FROM THE PROGRAM, THE FORFEITURE OF ANY AFFILIATE COMMISSIONS AND THE REQUIREMENT TO RETURN ANY AFFILIATE COMMISSIONS OBTAINED BY MEANS THAT ARE IN BREACH OF THIS CODE OF CONDUCT.