Welcome to Mobidea. By submitting an application to, or by accessing the Company Platform, you are bound by the following Terms and Conditions of the Publisher Program (“T&Cs”).
These T&Cs, together with our Privacy Notice and the Data Processing Addendum, which are incorporated herein by reference, as well as with all current and future amendments and related orders by and between you and us, govern the relationship between you (“Publisher” or “you”) and Mobidea (“Company” or “we”) and apply to Publisher’s participation in the Publisher Program, and collectively constitute the “Agreement”.
1.1 “Account” means the Publisher’s account on the Company Platform associated with the Publisher Program.
1.2 “Action” means a click, install, sale, download, lead, impression, registration, subscription, or other event, as defined in the applicable order or as otherwise specified as eligible for remuneration by the respective Advertiser.
1.3 “Advertiser” means a client of Company who wishes to promote the Advertiser Product.
1.4 “Advertiser Product” means the products, services or equivalent offered by an Advertiser which are promoted by Company via the Publisher Program.
1.5 “Advertiser Platform” means the landing page, website, or app to which end users may be redirected via the Links.
1.6 “Advertising Materials” means any trademarks, advertising content, images, text, video, data or other material provided by or on behalf of an Advertiser to Company.
1.7 “Publisher Program” means the participation of Publisher in the Company Platform as an Publisher of Company, providing and making available Publisher Media to Company.
1.8 “Commission” means the amount payable to the Publisher in return for marketing an Advertiser Product, in accordance with the respective Advertiser’s terms with Company; or for supplying advertising space, as agreed by the Parties.
1.9 “Company” means Mobidea Technologies Limited, with registered office at Kosta Varnali, 53, Latsia, 2232 Nicosia, Cyprus, vat 10397829D, which is the owner of Company Platform.
1.10 “Company Platform” means the internet website and platform owned and operated by Company to provide the Services.
1.11 “Links” means graphic and textual links to the Advertiser Platform.
1.12 “Parties” means the Publisher and Company together; “Party” in the singular shall also mean any of the Parties herein qualified.
1.13 “Publisher” means the party executing this Agreement with Company.
1.14 “Publisher Media” means websites or other internet inventory owned, maintained or controlled by Publisher, whether of Publisher’s own stock of internet advertising space, purchased on third party platforms, or otherwise to which the Publisher has the right to use, whereby advertising space is made available.
1.15 “Services” means the services or assistance provided by Company under this Agreement.
2.1 In order to participate in the Publisher Program you may be required to submit an online application. Company reserves the right to reject any application at its sole discretion.
2.2 It is Company’s intention to purchase advertising space from the Publisher Media, paying to the Publisher a certain amount through the payout model described in Section 5 (Commission and Payment Conditions) of this Agreement.
2.3 The Parties will remain, at all times, primarily liable to each other under the terms mentioned in this Agreement.
2.4 This Agreement prevails over any terms supplied by the Publisher.
2.5 Any individual contracting on his or her own behalf warrants that he or she is aged 18 or over. Any individual applying for the Publisher Program on behalf of a proposed Publisher warrants that he or she has all necessary authority to bind that proposed Publisher.
3.1 Through the present Agreement, Company may provide Publisher with advertising solutions to monetize mobile and internet inventory spaces via the Publisher Program.
3.2 Company may make available to Publisher via the Publisher Program the Advertiser Materials and Links, which Publisher shall display on the Publisher Media. The Advertiser Materials and Links will serve to identify Publisher as a member of the Publisher Program and will establish a link from the Publisher Media to the Advertiser Platform.
3.3 Publisher shall provide the internet advertising space on the Publisher Media to Company and shall apply all of its better resources and skills for the supply of said space.
3.4 The space to be supplied by the Publisher to Company as well as other technical and/or specific conditions related to it shall be determined through access of the Publisher to the Company Platform.
3.5 Publisher recognizes that Company users are available to send their traffic to another link based on a minimum EPC for each segment and that this EPC is calculated based on Company’s global data.
3.6 The Parties recognize that Publisher is given the possibility to monetize its traffic through Company’s algorithm and that the offer with the higher EPC of each segment will be automatically selected. Nevertheless, Company is not able to guarantee that the same EPC on that segment will be achieved since it will depend also on the traffic quality.
3.7 Concerning the single offers CPA, Company gives the possibility to promote a single offer, being able to show the maximum payout that the Publisher can achieve on each segment, however, Company cannot guarantee that the Publisher will achieve the same EPC on that segment since it will also depend on the traffic quality. The range of payouts that Company shows is subject to change. In case the payout is changed, Company will inform Publisher via email.
3.8 Any modifications to the conditions of the advertising space as well as others related to it as determined in the instructions that the Publisher has given to Company shall be made through the same procedure as mentioned in the previous number.
3.9 Publisher shall comply with lawful and reasonable directions regarding the advertising space communicated to it, from time to time, by Company, since it does not cause the Publisher to incur in extra costs.
3.10 Each Party shall at all times cooperate with the other in good faith. Furthermore, Company, on an ongoing basis, shall follow Publisher’s reasonable directions with respect to the advertising space.
4.1 Company grants Publisher a nonexclusive, nontransferable, revocable right to use the Advertising Materials and to access the Company Platform solely in accordance with the terms of this Agreement, for the sole purpose of identifying Publisher as a participant in the Publisher Program and assisting in increasing sales through the Advertiser Platform.
4.2 Publisher may not alter, modify, manipulate or create derivative works of the Advertising Materials or any graphics, creatives, links, copy or other materials owned by, or licensed to, Company in any way. Publisher is only entitled to use the Advertising Materials to the extent that Publisher is a member in good standing of the Publisher Program. Company may revoke Publisher’s license anytime by giving Publisher written notice.
4.3 Except as expressly stated herein, nothing in this Agreement is intended to grant Publisher any rights to any of Company’s trademarks, service marks, copyrights, patents or trade secrets. Publisher agrees that Company may use any suggestion, comment or recommendation Publisher chooses to provide to Company without compensation. All rights not expressly granted in this Agreement are reserved by Company.
5.1 Publisher shall be entitled to receive a Commision for the supply of advertising space. The payment terms shall be agreed by the Parties in each case in the applicable order.
5.2 The payment of the Commission by Company to the Publisher is dependent upon the respective Advertiser providing such funds to Company, and therefore, Publisher agrees that Company shall only be liable to Publisher for Commissions to the extent that Company has received such funds from the Advertiser.
5.3 In case both Parties decide not to proceed according to the payment method mentioned in the previous numbers, a custom revenue share payable to the Publisher by Company shall be determined in writing between the Parties. In case this custom revenue share is agreed between the Parties, the Publisher will not be entitled to any bonus. This means that the previous numbers shall cease to apply.
5.4 The form of payment to the Publisher and agreed by the Parties under the conditions set forth in the present clause can be chosen by the Publisher in the Publisher Program available at Company Platform.
5.5 The payments to the Publisher shall be processed in full by Company without set-off, reduction or withholding on any account whatsoever and within 30 (thirty) days of receipt of the invoice if another information is not mentioned. All Company payments are made on demand.
5.6 If Company fails to pay any amount due under the present Agreement, the Publisher will be able to, without prejudice to any other right or remedy available, suspend the provision of the advertising space until Company proceeds to the liquidation of the amount due at the time.
5.7 The payments to the Publisher shall be made by Company by wire/bank transfer, Paxum, PayPal or Epayments and Webmoney. The payment method shall be decided by the Publisher by accessing Company Platform, being the payment fees charged by the bank or payment provider deducted from the amount due to the Publisher. For accounts set as “private”, wire transfers may be requested only in EUR.
5.8 In order to withdraw money from the Account, the Publisher must have generated with his traffic 125 EUR/USD and have all documents approved after uploading them.
5.9 All the fees correspondent to revenue from the use of the advertising space and directed to Company are exclusive of Value Added Tax as well as any other applicable duties and/or taxes, all of which shall be for Company’s account.
5.10 Publisher shall provide Company with all the necessary information regarding Publisher’s bank details in order for Company to pay the Commissions. In the event that Publisher fails to provide Company with complete and correct bank information, Company shall incur no liability for late payments arising as a consequence of such failure by Publisher, including but not limited to any damages, losses, expenses, interests, and fees.
6.1 The parties agree that Company shall provide daily reports to Publisher as to numbers or sign ups as well as the revenue generated.
6.2 The reports mentioned in the previous number may include statistics which the Publisher, acting reasonably, deems relevant, reporting on various aspects of the advertising space.
7.1 The present Agreement shall begin in the date of acceptance of Publisher’s application to the Publisher Program by Company and shall last until Publisher fails to respect any of the clauses of this Agreement or as otherwise terminated as provided in this Section 7 (Duration and Term).
7.2 Either Party may terminate this Agreement at any time forthwith by written notice to the other if:
7.3 Neither Party shall have any remedy against the other based on the termination of this Agreement. The termination of the present Agreement shall be without prejudice to the rights of either party accrued at the date of such termination.
7.4 DORMANT ACCOUNT PROCESS
In order to use MOBIDEA services you must keep your MOBIDEA account active. If it is inactive for a period of 150 consecutive calendar days, it will be marked as dormant.
Your activity will be controlled by the system based on your earnings as a Publisher.
The system will automatically block your account if considered dormant. After deactivation, you will have 90 calendar days to restore your account. To do so, you have to login to your account and contact our Support. If your account is not reactivated within 90 calendar days it will be deleted from our systems, with all your personal data, including your earnings history, without option to restore it.
If your account was deleted due to being dormant and you want to restart the partnership with MOBIDEA, you may create a brand new account.
8.1 The Publisher is expressly prohibited from using any persons, means, devices or arrangements to commit fraud, violate any applicable law, interfere with other Publishers of Company or falsify information in connection with referrals through the Advertising Materials or Links or the generation of Commissions or exceed the Publisher’s permitted access to the Publisher Program. Such acts include, but are in no way limited to, using automated means to increase the number of Actions through the Advertising Materials or Links or completion of any required information, using spyware, stealware, cookie-stuffing and other deceptive acts or click-fraud. Company shall make all determinations about fraudulent activity in its sole discretion.
9.1 In addition to any other rights and remedies available to Company under this Agreement, Company reserves the right to delete any Action submitted through the Links and withhold and freeze any unpaid Commissions or charge back paid Commissions to the Account if (i) Company determines that Publisher has violated this Agreement, (ii) Company receives any complaints about Publisher’s participation in the Publisher Program which Company reasonably believes to violate this Agreement, or (iii) any qualified Action is later determined to have not met the requirements set forth in this Agreement or on the Publisher Program. In the event of a material breach of this Agreement, Company reserves the right to disclose Publisher’s identity and contact information to appropriate law enforcement or regulatory authorities or any third party that has been directly damaged by Publisher’s actions.
10.1 Both Parties represent and warrant to each other that:
10.2 Publisher represents and warrants to Company that:
10.3 Company represents and warrants to Publisher that:
10.4 Notwithstanding the previous numbers, Publisher will assume full legal liability corresponding to unauthorized or illegal advertising content, violation of intellectual property rights, deceptive, unfair and/or false advertising or any other form of unlawful conduct. Should any law enforcement agency, internet service provider or other individual or entity provide Company with notice that Publisher has engaged in unlawful conduct or conduct in violation as mentioned before, Company reserves the right to cooperate in any investigation related to the Publisher activities.
10.5 Publisher will be fully responsible for all of its campaigns and ensures that all the content and the Advertising Materials to be used in each campaign will be according with the rating established by each country and operator. The Publisher shall be fully responsible for the payment of all sanctions, liquidations, fines, penalties which may be imposed for non-compliance with applicable laws and regulations related to any marketing campaign or to the generation of mobile web traffic by the Publisher to the Services under the scope of this Agreement.
10.6 Following the procedure mentioned in Section 6 (Reporting), the Parties undertake to pay attention to paused campaigns. Notwithstanding being able to promote specific campaigns, Publisher must always pay attention and confirm if the campaigns are active or not.
10.7 Meanwhile, Company undertakes severally to inform and ask the Publisher, by e-mail, to stop and/or pause the segments if any campaign is not active. In case safety fallback is enabled and Publisher continues to send traffic related to paused campaigns, this traffic will be automatically redirected to different campaigns. Furthermore, in case the Publisher does not change its proceedings in this matter, its users will be redirected to Company’s algorithm and, in these cases, Company is unable to guarantee the same EPC that the Publisher was receiving for the offer.
11.1 THE Publisher PROGRAM, THE ADVERTISING MATERIALS AND LINKS, AS WELL AS THE PRODUCTS AND SERVICES PROVIDED IN CONNECTION THEREWITH, ARE PROVIDED TO PUBLISHER “AS IS”. EXCEPT AS EXPRESSLY SET FORTH HEREIN, COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. COMPANY DOES NOT WARRANT THAT THE Publisher PROGRAM OR THE ADVERTISING MATERIALS AND LINKS WILL MEET PUBLISHER’S SPECIFIC REQUIREMENTS OR THAT THE OPERATION OF THE Publisher PROGRAM OR THE ADVERTISING MATERIALS AND LINKS WILL BE COMPLETELY ERROR-FREE OR UNINTERRUPTED. COMPANY EXPRESSLY DISCLAIMS ANY LIABILITY FOR ANY ACT OR OMISSION OF AN ADVERTISER OR THEIR PRODUCTS OR SERVICES. COMPANY DOES NOT GUARANTEE THAT PUBLISHER WILL EARN ANY SPECIFIC AMOUNT OF COMMISSIONS.
12.1 Any confidential information and proprietary data provided by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”), including, but not limited to, any advertisement description, the pricing of any advertisement or the Disclosing Party’s personal and corporate documents, shall be deemed “Confidential Information” of the Disclosing Party. Confidential Information shall be kept in the strictest confidence and shall be protected by all reasonable and necessary security measures. Confidential Information shall not be released by the Receiving Party to anyone except an employee or agent who has a need to know same, and who is bound by confidentiality obligations. Neither Party will use any portion of Confidential Information provided by the other Party hereunder for any purpose other than those provided for under this Agreement.
13.1 The Publisher shall defend and hold harmless Company, its parents, subsidiaries, Publishers, partners, agents, officers and employees, during and after the term of this Agreement, from and against all claims, demands, actions, suits, judgments, settlements, damages, costs, losses, liabilities and expenses of any nature (including reasonable legal fees and expenses) based on, in connection with or related in any way to, directly or indirectly, (i) any failure or breach of this Agreement, including any representation, warranty, or obligation made by Publisher herein; (ii) any misuse by Publisher, or by a party under the reasonable control of Publisher or obtaining access through Publisher, of the Advertising Materials, Links, Company Platform, or Company’s or Advertiser’s intellectual property, (iii) any claim related to Publisher Media, including but not limited to, the content contained thereon (except for the Advertising Materials and Links); or (iv) Publisher’s willful, unlawful or negligent acts or omissions.
13.2 Company shall defend and hold harmless Publisher, its parents, subsidiaries, Publishers, partners, agents, officers and employees, during and after the term of this Agreement, from and against all claims, demands, actions, suits, judgments, settlements, damages, costs, losses, liabilities and expenses of any nature (including reasonable legal fees and expenses) based on, in connection with or related in any way to, directly or indirectly, (i) any failure or breach of this Agreement, including any representation, warranty, or obligation made by Company herein; or (ii) Company’s willful, unlawful or negligent acts or omissions.
14.1 Each Party hereby excludes any liability for breach of duty other than any such liability arising from this Agreement.
14.2 Neither Party shall have liability in relation to the other for: loss of revenue; loss of actual or anticipated profits; loss of contracts; loss of the use of money; loss of anticipated savings; loss of business; loss of opportunity; loss of goodwill; loss of reputation; loss of, damage to or corruption of data; or any indirect, incidental, special or consequential loss or damage; and such liability is excluded whether it is foreseeable, known, foreseen or otherwise.
14.3 In no event shall Company be liable for any unavailability or inoperability of Company Platform, Advertiser Platform, Advertising Materials and Links, technical malfunction, computer error, corruption or loss of information, damage or disruption of any kind beyond the reasonable control of Company.
14.4 Company’s cumulative liability to Publisher, from all causes of action and all theories of liability, will be limited to and will not exceed the amounts paid to Publisher by Company in Commissions during the six (6) months immediately prior to such claim.
15.1 This Agreement contains all the terms agreed between the Parties regarding its subject matter and supersede and exclude any prior agreement, understanding or arrangement between the Parties, whether oral or in writing.
15.2 The Parties hereby agree that this is the sole agreement that will be signed between them.
15.3 The Parties are independent contractors and nothing in this Agreement will create any partnership, joint venture, agency, franchise, representative status or employment relationship between them. Neither Party has authority to and shall not make any representations or incur any liability or cost or enter into any contracts or other arrangements involving the other Party in financial or other commitments without that other Party’s express prior approval in writing; nor shall either Party hold itself out as having authority to do the same.
15.4 Neither Party shall be liable for any delay or failure to perform its obligations under this Agreement to the extent that and for so long as such delay or failure results from circumstances beyond its control (“Force Majeure”). In case an event of Force Majeure occurs, the Party suffering such event shall notify the other Party as soon as reasonably practicable of becoming aware of such event. If any event of Force Majeure continues for a period exceeding 3 (three) weeks, the Party not suffering such event shall have a right to terminate this Agreement immediately on written notice to the other Party.
15.5 All notices and other communications required or permitted to be served or given shall be in writing and sent by email to the intended recipient’s address as communicated by the Parties in the related order. In any case, when directed at Company, a copy shall always be sent to the following address:
legal@mobidea.com
15.6 Notices shall be treated as having been served 2 (two) working days after posting or dispatch if sent by first class post or courier, and on confirmation of transmission if sent by facsimile.
15.7 Either Party’s failure to enforce or exercise at any time or for any period of time any term of or any right pursuant to this Agreement does not constitute, and shall not be construed as, a waiver of such term or right and shall in no way affect that Party’s right later to enforce or to exercise it.
15.8 If any provision contained in this Agreement is determined to be invalid, illegal or unenforceable in any respect under any applicable law, then such provision will be severed and replaced with a new provision that mostly reflects the original intention of the Parties, and the remaining provisions of this Agreement will remain in full force and effect.
15.9 Those provisions that either are expressed to survive its expiry or termination or from their nature or context it is contemplated that they are to survive such termination, shall survive termination of this Agreement.
15.10 The Parties shall do and execute all such further acts and things as are reasonably required to give full effect to the rights given and the transactions contemplated by this Agreement.
15.11 Company may update and change any part or all of this Agreement from time to time. In case Company updates or changes the terms of this Agreement, the updated terms will be posted in Company’s website and Company will notify Publisher via email or a notification in the Company Platform. The updated Agreement will become effective and binding on the next business day after it is posted. Publisher should review this Agreement periodically. If Publisher does not agree with a modification to this Agreement, Publisher must notify Company in writing within thirty (30) days after receiving notice of modification.
15.12 Clause headings are for ease of reference and do not form part of nor shall they affect the interpretation of this Agreement.
15.13 References to each Party herein include references to its successors in title, permitted assigns and novatees.
15.14 In case of any conflict between other agreement signed between the Parties and the conditions and terms hereby agreed, the present Agreement shall prevail.
15.15 This Agreement shall be governed by and construed in accordance with the Laws of Cyprus.
15.16 Any disputes related to this Agreement will be submitted to the Cyprus courts.
Affiliate Program Operating Agreement This Affiliate Program Operating Agreement (the "Agreement") is made and entered into by and between Exclusive by Mobidea ("Exclusive" or "we"), and you, ("you" or "Affiliate") the party submitting an application to become a Exclusive affiliate). The terms and conditions contained in this Agreement apply to your participation with mobidea.com/exclusive ("Affiliate Program"). Each Affiliate Program offer (an "Offer") may be for any offering by Exclusive or a third party (each such third party a "Client") and may link to a specific web site for that particular Offer ("Program Web Site"). Furthermore, each Offer may have additional terms and conditions on pages within the Affiliate Program and are incorporated as part of this Agreement. By submitting an application or participating in an Offer, you expressly consent to all the terms and conditions of this Agreement.
You must submit an Affiliate Program application from our website. You must accurately complete the application to become an affiliate (and provide us with future updates) and not use any aliases or other means to mask your true identity or contact information. After we review your application, we will notify you of your acceptance or rejection to the Affiliate Program, generally within two (2) business days. We may accept or reject your application at our sole discretion for any reason.
Subject to our acceptance of you as an affiliate and your continued compliance with the terms and conditions of this Agreement, Exclusive agrees as follows:
Except as otherwise provided in this Agreement or with the consent of Exclusive, you agree that all information, including, without limitation, the terms of this Agreement, business and financial information, customer and vendor lists, and pricing and sales information, concerning us or any of our affiliates provided by or on behalf of any of them shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by you for any purpose other than your participation in the Affiliate Program, except and solely to the extent that any such information is generally known or available to the public through a source other than you. Affiliate shall not use any information obtained from the Affiliate Program to develop, enhance or operate a service that competes with the Affiliate Program, or assist another party to do the same.
We grant you a nonexclusive, nontransferable, revocable right to use the Links and to access our web site through the Links solely in accordance with the terms of this Agreement, for the sole purpose of identifying your Media as a participant in the Affiliate Program and assisting in increasing sales through the Program Web Site.You may not alter, modify, manipulate or create derivative works of the Links or any Exclusive graphics, creative, copy or other materials owned by, or licensed to, Exclusive in anyway. You are only entitled to use the Links to the extent that you are a member in good standing of the Affiliate Program. We may revoke your license anytime by giving you written notice. Except as expressly stated herein, nothing in this Agreement is intended to grant you any rights to any of Exclusive 's trademarks, service marks, copyrights, patents or trade secrets. You agree that Exclusive may use any suggestion, comment or recommendation you choose to provide to Exclusive without compensation. All rights not expressly granted in this Agreement are reserved by Exclusive.
This Agreement shall commence on the date of our approval of your Affiliate Program application and shall continue thereafter until terminated as provided herein. You may terminate your participation in the Affiliate Program at any time by removing all Links from your Media, deleting all copies of the Links. We may terminate your participation in one or more Offers or this Agreement at anytime and for any reason which we deem appropriate with or without prior notice to you by disabling the Links or providing you with a written notice. Upon termination of your participation in one or more Offers or this Agreement for any reason, you will immediately cease all use of and delete all Links, plus all Exclusive or Client intellectual property, and will cease representing yourself as a Exclusive or Client affiliate for such one or more Offers. All rights to validly accrued payments, causes of action and any provisions, which by their terms are intended to survive termination, shall survive any termination.
In addition to any other rights and remedies available to us under this Agreement Exclusive reserves the right to delete any actions submitted through your Links and withhold and freeze any unpaid Commissions or charge back paid Commissions to your account if (i) Exclusive determines that you have violated this Agreement,(ii)Exclusive receives any complaints about your participation in the Affiliate Program which Exclusive reasonably believes to violate this Agreement or (iii) any Qualified Action is later determined to have not met the requirements set forth in this Agreement or on the Affiliate Program. Such withholding or freezing of Commissions, or charge backs for paid Commissions, shall be without regard as to whether or not such Commissions were earned as a result of such breach. In the event of a material breach of this Agreement, Exclusive reserves the right to disclose your identity and contact information to appropriate law enforcement or regulatory authorities or any third party that has been directly damaged by your actions.
You must strictly comply with the federal CAN-SPAM Act of 2003 (the "Act"). All emails sent in connection with the Affiliate Program must include the appropriate party's opt-outlink. From time to time, we may request - prior to your sending emails containing linking or referencing the Affiliate Program that you submit the final version of your email to Exclusive for approval by sending it to your Exclusive representative and upon receiving written approval from Exclusive of your email the email may be transmitted to third parties. It is solely your obligation to ensure that the email complies with the Act. You agree not to rely upon Exclusive's approval of your email for compliance with the Act, or assert any claim that you are in compliance with the Act based upon Exclusive's approval.
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 the Affiliate Program. 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 stealware, cookie-stuffing and other deceptive acts or click-fraud. Exclusive shall make all determinations about fraudulent activity in its sole discretion.
You hereby represent and warrant that this Agreement constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms and that you have the authority to enter into this Agreement. Subject to the other terms and conditions of this Agreement, Exclusive represents and warrants that it shall not knowingly violate any law, rule or regulation which is applicable to Exclusive's own business operations or Exclusive's proprietary products or services.
In addition to any notice permitted to be given under this Agreement, we may modify any of the terms and conditions of this Agreement at anytime by providing you with a notification by email. The changes will become effective ten (10) business days after such notice. If the modifications are unacceptable to you, you may terminate this Agreement without penalty solely on the account of such termination within such ten (10) business day period. Your continued participation in this Affiliate Program ten (10) business days after a change notice has been posted will constitute your acceptance of such change. In addition, Exclusive may change, suspend or discontinue any aspect of an Offer or Link or remove, alter, or modify any tags, text, graphic or banner ad in connection with a Link. Affiliate agrees to promptly implement any request from Exclusive to remove, alter or modify any Link, graphic or banner ad that is being used by Affiliate as part of the Affiliate Program.
You acknowledge that you have read this Agreement and agree to all its terms and conditions. You have independently evaluated the desirability of participating in the Affiliate Program and each Offer and are not relying on any representation, guarantee or statement other than as set forth in this Agreement or on the Affiliate Program.
Affiliate hereby agrees to indemnify, defend and hold harmless Exclusive and Clients and their respective subsidiaries, affiliates, partners and licensors, directors, officers, employees, owners and agents against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' fees and costs) arising out of (i) any failure to comply with the obligations contained herein or the uncured breach of the provisions of this Agreement, including any representation, warranty, covenant, restriction or obligation made by Affiliate herein, (ii) any misuse by Affiliate, or by a party under the reasonable control of Affiliate or obtaining access through Affiliate, of the Links, Offers or Exclusive or Client intellectual property, or (iii) any claim related to your Media, including but not limited to, the content contained on such Media (except for the Links).Exclusive hereby agrees to indemnify, defend and hold harmless Affiliate and its subsidiaries, affiliates, partners, and their respective directors, officers, employees, owners and agents against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' fees and costs) arising out of (i) a claim that Exclusive is not authorized to provide you with the Links, (ii)any failure of Exclusive to comply with the obligations contained herein or the uncured breach of the provisions of this Agreement, including any representation, warranty, covenant, restriction or obligation made by Exclusive herein.
THE AFFILIATE PROGRAM AND LINKS, AND THE PRODUCTS AND SERVICES PROVIDED IN CONNECTION THEREWITH, ARE PROVIDED TO AFFILIATE "AS IS". EXCEPT AS EXPRESSLY SET FORTH HEREIN, EXCLUSIVE EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. EXCLUSIVE DOES NOT WARRANT THAT THE AFFILIATE PROGRAM OR LINKS WILL MEET AFFILIATE'S SPECIFIC REQUIREMENTS OR THAT THE OPERATION OF THE AFFILIATE PROGRAM OR LINKS WILL BE COMPLETELY ERROR- FREE OR UNINTERRUPTED. EXCLUSIVE EXPRESSLY DISCLAIMS ANY LIABILITY FOR ANY ACT OR OMISSION OF A CLIENT OR THEIR PRODUCTS OR SERVICES. EXCLUSIVE DOES NOT GUARANTEE THAT AFFILIATE WILL EARN ANY SPECIFIC AMOUNT OF COMMISSIONS.
IN NO EVENT SHALL THE PARTIES BE LIABLE FOR ANY UNAVAILABILITY OR INOPERABILITY OF THE LINKS, PROGRAM WEB SITES, TECHNICAL MALFUNCTION, COMPUTER ERROR, CORRUPTION OR LOSS OF INFORMATION, OR OTHER INJURY, DAMAGE OR DISRUPTION OF ANY KIND BEYOND THE REASONABLE CONTROL OF THE PARTY. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PERSONAL INJURY / WRONGFUL DEATH, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS OR LOSS OF BUSINESS OPPORTUNITY, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY THEREOF.THE PARTIES CUMULATIVE LIABILITY TO EACH OTHER, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE AMOUNTS PAID OR RECEIVED BY THE PARTIES AS COMMISSIONS DURING THE SIX (6) MONTHS IMMEDIATELY PRIOR TO SUCH CLAIM.
Affiliate shall be responsible for the payment of all reasonable attorney’s fees and expenses incurred by Exclusive to enforce the terms of this Agreement. This Agreement contains the entire agreement between Exclusive and Affiliate with respect to the subject matter here of, and supersedes all prior and/or contemporaneous agreements or understandings, whether written or oral. Affiliate agrees that Exclusive shall not be subject to or bound by any Affiliate insertion order or online terms and conditions that amend, conflict with or supplement this Agreement, regardless of whether Exclusive "clicks through "or other wise indicates its acceptance there of. Affiliate may not assign, save to an affiliate or a successor in interest all or any part of this Agreement without Exclusive's prior written consent. Exclusive may assign this Agreement at any time with notice to Affiliate. This Agreement will be binding on and will inure to the benefit of the legal representatives, successors and valid assigns of the parties hereto. The provisions of Section 3, 4(b), 6, 7, 8, 12-15 and any accrued payment obligations shall survive the termination of this Agreement. Except as set forth in the "Modifications" section above, this Agreement may not be modified without the prior written consent of both parties. If any provision of this Agreement is held to be void, invalid or inoperative, the remaining provisions of this Agreement shall continue in effect and the invalid portion of any provision shall be deemed modified to the least degree necessary to remedy such invalidity while retaining the original intent of the parties. Each party to this Agreement is an independent contractor in relation to the other party with respect to all matters arising under this Agreement. Nothing herein shall be deemed to establish a partnership, joint venture, association or employment relationship between the parties. No course of dealing nor any delay in exercising any rights here under shall operate as a waiver of any such rights. No waiver of any default to breach shall be deemed a continuing waiver or a waiver of any other breach or default. The Terms of Use are governed by, and construed in accordance with, the law of Portugal. The Parties irrevocably agree the exclusive jurisdiction of the Courts of Lisbon-City to settle any dispute or claim that arises out of or in connection with the validity, interpretation and enforcement of the Terms of Use or the access and/or use of the Website. By submitting an application to Affiliate Program, you affirm and acknowledge that you have read this Agreement in its entirety and agree to be bound by all of its terms and conditions. If you do not wish to be bound by this Agreement, you should not submit an application to Affiliate Program. If an individual is accessing this Agreement on behalf of a business entity, by doing so, such individual represents that they have the legal capacity and authority to bind such business entity to this Agreement.
THESE TERMS AND CONDITIONS (THE “AGREEMENT”) CONSTITUTE THE LEGAL AGREEMENT BETWEEN YOU (THE “ADVERTISER” OR THE “PUBLISHER”, AS MAY BE APPLICABLE) AND MOBIDEA TECHNOLGIES LIMITED, WITH REGISTERED OFFICE AT KOSTA VARNALI, 53, LATSIA, 2232 NICOSIA, CYPRUS, VAT 10397829D, THAT WILL GOVERN YOUR PARTICIPATION IN MOBIDEA’S PLATFORM. PLEASE READ THE AGREEMENT BEFORE MAKING A DEPOSIT IN THE MOBIDEA PLATFORM. BY PRESSING THE “DEPOSIT MONEY”, YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT AND ALL ITS TERMS AND CONDITIONS.
For purposes of this Agreement, any capitalized terms shall have the meaning expressly set out below for such term.
Administration Panel means the interface provided by MOBIDEA (i) to the Advertiser in order the Advertiser to be able to creatne its Push-Notifications campaigns, and follow-up its performance.
Advertiser(s) means MOBIDEA’s clients, who after completing the registration process (by providing all the required information and pressing the REGISTER button) will become part of the MOBIDEA Network, being then entitled to create Push-Notifications campaigns (providing the required Push-Ads Material, for which the Advertiser will be liable of), and authorizing MOBIDEA as your intermediary to include them on the MOBIDEA real time bidding system.
End-User means individuals who have legally and validly subscribed or accept to receive Push-Notifications.
Push-Ads Material means the text, graphics, logos, designs, trademarks and copyrights created by the Advertiser for a particular Push-Notification.
Push-Notification means the ad format directly delivered to End-Users' mobile or desktop device, who have previously and expressly accepted to receive push notifications, or subscribed to the same.
MOBIDEA Network means the network formed by the Advertisers and Publishers that have been duly registered in the MOBIDEA Platform.
MOBIDEA Platform means the online platform owned and operated by MOBIDEA, to which YOU have registered, and that (i) enables the Advertiser to create and launch Push-Notifications, and (ii) enables the Publisher to obtain Push-Notifications that will be delivered to the End-Users to whom the Publisher has the capacity (directly or indirectly) to deliver Push-Notifications.
Click means the number of times, as recorded by MOBIDEA’s Platform an End-User visits the Advertiser’s Website or Application, as identified by clicks on the relevant Push-Notifications.
By virtue of this Agreement Advertiser(s) markets and advertises their goods and services using Push-Notifications and Publisher(s) delivers the Push-Notifications to its End-Users, using the MOBIDEA Platform, and through the MOBIDEA real time bidding system. On top of that, MOBIDEA provides guidance to help Advertiser(s) and Publisher(s).
MOBIDEA acts at all times as an intermediary, with no effective knowledge on the content of the Push-Notifications shown to End-Users (or the Websites or Applications they redirect to), and with no control on the End-Users to which the Push-Notifications will be shown. The Advertiser and the Publisher are the only responsible parties, respectively, for such content, and for ensuring End-Users have legally and validly completed the subscription or acceptance to receive Push-Notifications; and will always hold MOBIDEA harmless for any responsibility, infringement, damage or loss that may derive from, or in relation to, Push-Notifications delivered to End-Users using the MOBIDEA Platform.
If YOU detect that:
Push-Notifications within the MOBIDEA Platform contain illegal content or infringe third-party rights;
Push-Notifications within the MOBIDEA Platform redirect to websites or applications which (a) are illegal; or (b) which content infringe third party rights, or (c) which offer illegal services or products;
Push-Notifications are delivered to End-Users that have not duly given their consent to receive such type of campaigns
Clicks to Push-Notifications are not done by real individuals or End-Users visiting the Advertisers’ Websites or Applications (being clicks generated by automated systems or other fraudulent means);
please notify such circumstance to MOBIDEA at compliance@mobidea.com, so we can adopt the required measures to prevent non-compliant traffic.
Advertiser will be responsible for creating and uploading in the MOBIDEA Platform, through its Administration Panel, the Push-Ads Materials that will contain the creatives that will be showed to End-Users and that will be launched as Push-Notification.
When setting up a Push Notification, in addition to the Push-Ads Materials, the Advertiser will determine the target (including territory and/or carrier and/or city); traffic restrictions (if applicable); operating system; eligible days per week / hours per day; payable price per click; and any other specification regarding the Push-Notification that the MOBIDEA Platform may require from time-to-time.
The Advertiser is the only entity liable for the Push-Ads Materials and any other information and specification included in the MOBIDEA Platform regarding a particular Push-Notification.
MOBIDEA has the sole responsibility for including the Push Notification in the real time bidding system (at the price per click determined by the Advertiser minus MOBIDEA’s Commission, which will be freely determined by MOBIDEA and at its sole discretion), calculation of statistics, click-through rate and revenues. CET Time shall be the time period for traffic and tracking purposes. Statistics will be available to Advertiser online in the Administration Panel.
Advertiser the only entity liable for the content of the Push-Ads Materials provided, and any website or application or other destination that the Push-Notification directs to, and any services and products that are offered in connection with the Push-Notification. MOBIDEA will not be required to publish any Push-Notification that is not in accordance with its policies, restrictions or specifications as determined in its sole discretion. Notwithstanding the foregoing, MOBIDEA’s policies, specifications and/or recommendations should not be construed as legal advice, or as sufficient guidelines to ensure that such Push-Ads Materials, or Push-Notifications comply with the applicable law. MOBIDEA shall have no obligation to monitor or edit the Push-Notifications, and MOBIDEA assumes no obligation and hereby disclaims any liability for Advertiser’s use or placement of any Push-Notification.
MOBIDEA shall not be responsible for any damage or loss as may be caused by the disruption of Push-Notifications or the removal of Push-Notifications by any Publisher and/or third party.
Advertiser warrants and represents to MOBIDEA, that it has all rights, title and interests in and to the Push-Ads Materials it places on the MOBIDEA Platform, and that its Push-Notifications content, and any website or application or other destination that the Push-Notifications direct to, do not (i) contain material which is unlawful, harmful, threatening, defamatory, offensive, profane, harassing, discriminatory (whether based on race, ethnicity, creed, religion, gender, sexual orientation, physical disability or otherwise), incites violence or otherwise is objectionable, libellous or misleading, or which constitutes an invasion of any right to privacy, breaches advertising rights or, in any other manner, breaches third-party rights; (ii) contain “spam”, malicious code, adware, spyware or drive-by download applications, viruses, worms, Trojan horses, corrupted files, unauthorized programs or similar programs that might harm data or computer systems, or may damage or render inoperable the corresponding software, hardware or security measures, or that interact with end users' browsers in any manner, it effects end users’ web navigation by error page redirections, hijacking, tabs redirection, creation of new tabs, or in any other manner; (iii) infringe patents, copyrights, trade secrets or other third-party industrial or intellectual property rights; (iv) breach any type of law or regulation, whether international, community, state, regional or municipal, which may be applicable (including regulations on consumer protection, product liability, or tort); or (v) otherwise contain material which may have an adverse effect on MOBIDEA, Publishers, affiliates, licensors, agents or End-Users.
If the Advertiser becomes aware to any legal restriction concerning a Push-Notification usage and/or distribution it will immediately notify MOBIDEA.
Positioning of the Push-Notifications is at the sole discretion of MOBIDEA. MOBIDEA does not guarantee that Advertiser’s Push-Notifications will be to Publishers End-Users, the timing of delivery of the Push-Notifications and/or the placement and positioning of Advertiser’s Push-Notifications. MOBIDEA reserves the right to approve, omit, or reject any of Advertiser’s Push-Notifications for any reason at any time. In addition, MOBIDEA reserves the right, at any time, to remove any of Advertiser’s Push-Notifications if MOBIDEA determines, in its sole discretion that the Push-Notification, violates any of MOBIDEA’s policies or may result in liability to MOBIDEA. MOBIDEA’s failure to reject, cancel, approve, omit, or reject any Push-Notification shall not be construed as an acceptance of a Push-Notification. Publisher or its affiliates may reject or remove any Push-Notification for any or no reason. Advertiser agrees that MOBIDEA shall not be responsible for any discrepancy in targeting criteria.
Advertiser must prepay its advertising budget through credit card, wire transfer, or any other payment method available in the MOBIDEA Platform or mutually agreed by the Advertiser and MOBIDEA (the Advertiser’s Budget ). Advertiser shall pay all charges in U.S. Dollars.
MOBIDEA will deliver the Advertiser’s Push-Notifications until the Advertiser’s Budget is reached. Advertiser’s Push-Notifications will be relaunched to the MOBIDEA real time bidding system once the Advertiser has prepaid another deposit and the Advertiser’s Budget balance is positive.
Each time MOBIDEA receives a deposit from the Advertiser, it will issue the corresponding invoice to the Advertiser. All amounts payable represent the net amounts to be received by MOBIDEA. Each Party will bear the costs and commissions charged by its bank. Advertiser is responsible for paying all taxes, government charges, and reasonable expenses and attorneys’ fees MOBIDEA incurs collecting unpaid amounts. Charges are solely based on MOBIDEA Platform measurements. Nothing in these Agreement may obligate MOBIDEA to credit any amount to the Advertiser.
Advertiser expressly acknowledges that MOBIDEA will generate the invoices based on the data provided by the Advertiser and therefore warrants that such data is accurate, fully and legally compliant, especially for invoicing and taxation purposes. Any Advertiser residing in the European Union who has provided a VAT number expressly warrants that such VAT number is, in its own country, valid for the issuance of VAT-exempt invoices. Advertiser expressly accepts to be solely liable for any error, direct or indirect loss or damage arising from the inaccuracy or non-compliance of such data or the breach of any of the aforementioned warranties and, accordingly, Advertiser will hold MOBIDEA totally harmless from any of the said errors, direct or indirect loss or damages.
Advertiser acknowledges and agrees that any credit card and related billing and payment information that Advertiser provides to MOBIDEA may be shared with companies who work on MOBIDEA’s behalf, such as payment processors and/or credit agencies, solely for the purposes of checking credit, effecting payment to MOBIDEA and servicing Advertiser’s account.
MOBIDEA reserves the right to withhold deposit or charge Advertiser’s account due to any breach of this Agreement by Advertiser.
Except for the events for which MOBIDEA has the right to retain and keep the Advertiser’s deposits (as established in this Agreement), if the Agreement is terminated before the prepayment is depleted, MOBIDEA will refund to the Advertiser that portion of the prepayment amount that remains undelivered at such time of termination, minus an administrative fee of 20%. For the sake of clarity, such refunds will not include any bonus or free credit given by MOBIDEA (only payments made by the Advertiser and not used).
MOBIDEA’s Platform will be the official counter for determining the number of Clicks delivered and amounts payable under this Agreement.
Advertiser understand that MOBIDEA’s online real-time statistics may not be 100% accurate and that MOBIDEA may make adjustments to online statistics.
MOBIDEA cannot guarantee any volume of traffic. Clicks can differ from one day to another following the performances of each Push-Notification.
Each Party undertakes not engage any Fraudulent Activity. Fraudulent Activity means any of the following: (i) fictitious, automated and/or fraudulent clicks; (ii) management and placement of Push-Notifications in violation of any applicable law or regulation or breaching the specifications agreed between the Parties.
Each Party will make every effort to uphold the highest ethical and commercial standards.
Each Party represents and warrants to the other Party that: (i) it has the full corporate right, power and authority to enter into the Agreement, to grant the licenses granted hereunder and to perform the acts required of it hereunder; (ii) this Agreement constitutes a legal, valid and binding obligation for such Party, enforceable against the same in accordance with its terms; and (iii) it will act in accordance with all applicable laws, rules and regulations.
Additionally, the Advertiser represents and warrants that (i) all of the information provided to MOBIDEA (or MOBIDEA Platform) is correct, complete and current; (ii) it will fulfil all representations and commitments made in any Push-Notifications; and (iii) it will have a clearly labelled and easily accessible privacy policy in its Websites or Applications that provides users with clear and comprehensive information about cookies, device-specific information, location information and other information stored on, accessed on, or collected from End-Users’ devices, including information about End-Users’ options for cookie management.
PARTICULAR COVENANTS ON ANTI-BRIBERY
MOBIDEA is committed, in accordance with its zero-tolerance policy for bribery and corruption (the Anti Bribery and Corruption Policy ), to ensure that all MOBIDEA’s activities and the activities of all of MOBIDEA’s advertisers, publishers, affiliates and business partners comply with all applicable laws and regulations and accord to the highest principles of corporate ethics. Accordingly, YOU undertake, in performing your activities under this Agreement, to comply with all applicable laws related to the fight against bribery and corruption and in particular:
YOU hereby agree that neither yourself (directly or through your own networks), nor your agents or other representatives involved in your business shall violate any applicable anti-corruption or anti-bribery laws, including the U.S. Foreign Corrupt Practices Act and United Kingdom’s Bribery Act of 2010 (the Anti-Bribery Laws ), or act in a way which may result in such violation or cause other to violate Anti-Bribery Laws. To this effect it is placed on record that the Anti-Bribery Laws: (i) prohibit payments to government officials and private individuals, either directly or through intermediaries, for the purpose of obtaining or retaining business, or securing an improper business advantage; (ii) require the maintenance of complete and accurate books, records, invoices and other documents concerning payments and expenses which reflect in reasonable detail the character and amount of such expenditures and the transactions to which they relate; and (iii) prohibit use of any funds that are not fully accounted for, including “off book” accounts.
YOY represent, warrant and covenant that, in connection with the Agreement or any other transactions or actions involving or benefiting MOBIDEA, neither YOU nor any of your agents or other representatives will make or promise to make, have ever made, or have ever agreed or promised to make, any payments or transfer any gifts, valuables, property, benefits, or anything of value, directly or indirectly, to: ( а ) any governmental officials or employees (including representatives of state-owned and state-controlled corporations), (b) any political parties or their officials or candidates, or (c) any other person or entity, if such a payment or transfer could violate the Anti-Bribery Laws. YOU shall not offer, promise, give, authorize, solicit or accept any undue amount or other advantage related to any prospective leads, impressions, clicks, acquisitions, installations, registrations, or payments made under this Agreement or otherwise.
Upon the request of MOBIDEA, YOU shall make books, records, and documents available for inspection to the extent to which they concern the transactions on the MOBIDEA Platform, provided that the inspection takes place while the Agreement is in force or within the five (5) years upon Agreement’s termination. YOU shall fully cooperate in any survey and/or audit that may be conducted.
YOU represent, warrant and covenant that YOU have not taken or failed to take any actions which would subject MOBIDEA or its network to potential liability under the Anti-Bribery Laws.
MOBIDEA shall be entitled to immediately terminate this Agreement (at any time and without prior notice) if it determines, in its sole discretion, that any of YOUR activities do not fully comply with the Anti-Bribery Laws or MOBIDEA’s Anti Bribery and Corruption Policy.
PARTICULAR COVENANTS ON ANTI-MONEY LAUNDERING
Additionally, MOBIDEA is committed, in accordance with its zero-tolerance policy for money laundering and terrorism financing (the Anti-Money Laundering and Counter-Terrorism Financing Compliance Policy ), to ensure that funds related to, or derived form, MOBIDEA’ activities are not derived from criminal activity or other non-legal or non-legitimate means. Accordingly, YOU hereby declare that YOU are also committed to preventing money laundering by having proportionate and effective anti-money laundering systems and processes in place. MOBIDEA shall be entitled to immediately terminate this Agreement (at any time and without prior notice) if it determines, in its sole discretion, that any of YOUR activities do not fully comply with MOBIDEA’s Anti-Money Laundering and Counter-Terrorism Financing Compliance Policy.
MOBIDEA’s Platform is provided on an “as is” and “as available” basis, without any warranty of any kind and without any guarantee.
To this effect the Advertiser declares, acknowledges and accepts that (i) MOBIDEA has no obligation to distribute the Push-Notifications or otherwise promote and manage the Push-Notifications, and MOBIDEA disclaims all guarantees regarding the results or performance of Push-Notifications; (ii) the Advertiser has not relied on MOBIDEA’s skills, capacities or results in relation to the management of the MOBIDEA Platform (and it would not be reasonable to do so); (iii) MOBIDEA does not warrant that the services fit for the Advertiser, its business, the purpose, revenue or profit perspectives of the Advertiser or its clients (and MOBIDEA cannot do so); (iii) MOBIDEA has made no express warranties about the MOBIDEA Platform, software or third-party contents; the MOBIDEA Platform may not be uninterrupted, timely, secure or free from errors; MOBIDEA will not be responsible for interruptions or errors which may have occurred in the network, servers or platforms of third parties (iv) the Advertiser is solely responsible for any losses, damages, expenses, liabilities, etc. (including loss of data) arising from the use of the MOBIDEA Platform.
ADVERTISER ACKNOWLEDGES, AGREES AND ACCEPTS THE RISK THAT PROHIBITED OR IMPROPER ACTIVITY CAN BE GENERATED BY THIRD PARTIES, AND ANY CREDITS OR REFUNDS FOR SUCH ACTIVITY ARE AT MOBIDEA’S SolE DISCRETION. MOBIDEA SHALL HAVE NO RESPONSIBIliTY OR liABIliTY IN RELATION WITH ANY THIRD PARTY CliCK FRAUD OR OTHER IMPROPER ACTIONS THAT MAY OCCUR.
The Agreement between the Parties shall be indefinite and shall come into force on the date YOU complete your registration in the MOBIDEA Platform by pressing the “REGISTER” button. Either Party may terminate the Agreement, or may cancel or suspend a Push-Notification campaign at any time.
Either Party, acting in good faith, may withdraw a specific campaign without having to provide prior notice to the other Party for legal reasons or in the event of a third-party claim which may cause damages.
Clauses 8 (PARTIES REPRESENTATIONS), 9 (NO WARRANTY), 11 (liMITATION OF liABIliTY) 12 (INDEMNITY FOR DAMAGES), 13 (DATA PROTECTION) and 14 (MISCELLANEOUS) shall remain in force after the termination of the Agreement.
Time Limitation. No action arising under or relating to this Agreement, regardless of its form, may be brought by YOU more than two (2) months after the cause of action has occurred and, in any event, no later than two (2) months after the termination of this Agreement. MOBIDEA will not be liable for actions brought after this time limitation.
Actions that may entail liability. MOBIDEA will only be liable in case of (a) MOBIDEA’s direct material breach of the Agreement, not remedied within fifteen (15) business days upon YOUR written notification to this effect, or (b) wilful, unlawful or malicious acts (or omissions) committed directly by MOBIDEA.
MOBIDEA’s liability will be limited to DIRECT damages, losses, costs, liabilities, fines or penalties suffered by YOU. In no event MOBIDEA will be liable vis-à-vis YOU for the results of a specific campaign, or for any indirect, incidental or consequential damages of any type (including but not limited to loss of profits, revenues, data, business interruption, or loss of goodwill, clients or reputation).
Amount limitation. TO THE EXTENT PERMITTED BY LAW, THE TOTAL AND MAXIMUM AGGREGATE liABIliTY OF MOBIDEA ARISING FROM THE AGREEMENT FOR ALL CLAIMS (REGARDLESS THE FORM OF ACTION) WILL BE liMITED TO ONE MONTH AVERAGE FEE (WHICH SHALL BE DETERMINED BASED ON THE FEES ACTUALLY PAID BY THE ADVERTISER TO / RECEIVED BY PUBliSHER FROM (as may be applicable) MOBIDEA FOR THE LAST THREE BILLED MONTHS, PRIOR TO THE DATE THE CLAIM TAKES PLACE).
In no event MOBIDEA will be liable towards third parties different form YOU.
It is expressly placed on record that in no event YOU will be entitled to suspend or retain payments in case a claim is brought against MOBIDEA.
THE FOREGOING liMITATIONS ARE FUNDAMENTAL TO THE ENTERING INTO THIS AGREEMENT BY MOBIDEA. YOU DECLARE, ACKNOWLEDGE AND ACCEPT THAT IT IS FAIR AND REASONABLE FOR MOBIDEA TO RELY ON THE FOREGOING liMITATIONS.
YOU agree to defend, indemnify and hold harmless MOBIDEA and each of the members of MOBIDEA Network from and against any and all damage, injury, liability, costs and expense (including reasonable attorneys’ fees) or other claim, whether or not involving a third party claim, related to (i) claims arising from YOUR activities in relation to the Agreement, including, by way of illustration and not limited to, claims arising from the infringement of third-party rights; (ii) the management, publication, display or distribution of Push-Notifications (including claims for defamation; breach of confidentiality agreements; violation of privacy; false, deceptive or misleading publicity or bad sales practices; non-fulfilling of consumers or End-Users rights; or failure to comply with representations made); (iii) wilful, unlawful, negligent or malicious acts (or omissions) committed by YOU; (iv) breach of the terms of the Agreement or the failure to perform any obligation undertaken in the Agreement
MOBIDEA will have the right to control the defence of any claim involving MOBIDEA.
Each of the Parties hereby represents and warrants it is in compliance with the Data Protection regulations applicable to the same (including EU regulations in force on the protection of natural persons with regard to the processing of personal data and on the free movement of such data), and that it has complied with all the terms, requirements, proceedings and regulations required to collect personal data (by whatever means), taking into account the foreseen use of the same.
YOU acknowledge and accept that all personal data submitted in relation to the Agreement (or your registration in the MOBIDEA Platform) will be incorporated on MOBIDEA database, created with the aim to carry out the contractual relationship between the Parties, as well as to provide commercial information (by any means available, including by web-based technology), in order to complement the commercialized services. MOBIDEA informs YOU of YOUR rights of access, rectification, cancellation and opposition. YOU are entitled to exercise any of these rights, by means to written notification to the following email address: compliance@mobidea.com.
License. YOU agree that MOBIDEA may include YOUR name (including any trade name, trademark, service mark and logo) on MOBIDEA’s Network list and marketing materials and sales presentations and YOU provide MOBIDEA with the license to use YOUR trade names, trademarks, service marks and logo for the purpose hereof.
Ownership. MOBIDEA is the sole owner of any and all intellectual property rights associated with the MOBIDEA Platform. MOBIDEA retains all rights, title and interest, including any and all intellectual property rights in and to any materials created, developed or provided by MOBIDEA in the MOBIDEA Platform. MOBIDEA reserves all rights not expressly granted herein.
Commercial Nature of the Relationship. The relationship which is established between the Parties by virtue of the Agreement, is a commercial relationship to all effects. MOBIDEA and YOU are independent Parties who shall act in this capacity at all times, and nothing contained in the Agreement, nor any action taken by any Party in the execution of the same, shall be deemed to constitute either Party (or any of such Party's employees, agents or representatives) an employee, or legal representative of the other Party, nor to create any joint venture, association, syndication or any other type of relationship between them. The Parties shall each be separately liable for any corporate, tax, employment or other type of obligations arising from their commercial and economic activities.
Entire Agreement. This Agreement constitute the Parties’ entire agreement with respect to the subject matter hereof, and replace, annul and supersede any other agreements or documents of the Parties in relation thereto.
MOBIDEA reserves the right to modify, from time to time and in its sole discretion this Agreement. In case of modification of this Agreement, MOBIDEA will communicate said modification to YOU. The notified modification shall be deemed accepted by YOU provided that YOU do not communicate in writing to MOBIDEA YOUR disagreement within a period not exceeding five (5) days. In case YOU communicate YOUR disagreement, MOBIDEA will be entitled either to terminate the Agreement, or to maintain applicable to YOU the terms and conditions in force prior to the modification.
Waiver. The waiver by either Party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach.
Severability. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall be ineffective only to the minimum extent necessary without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provisions in any other jurisdiction.
Force Majeure. Neither Party shall have any liability for any failures or delays in performance of the Agreement arising from force majeure events beyond their control. Force majeure events include, but are not limited to, natural disasters, governmental actions, regulatory actions or restrictions, sanctions, wars, terrorist acts, etc.
Governing Law and Jurisdiction. The Agreement between the Parties is governed by and interpreted (without giving effect to conflict of laws principles) in accordance with the Cyprus law.
The Parties expressly submit any disputes arising in connection with the validity, interpretation or performance of the Agreement, to the jurisdiction of the courts of the city of Nicosia, waiving any other jurisdiction which may correspond to them.