PUBLISHER TERMS AND CONDITIONS
"Client" means a client of Mobair.
"Offer" means a promotional offer published by Mobair on the Program Site, in an electronic mail or both, setting out an advertising offer on behalf of a Client and containing such additional terms and conditions as the Client and Mobair, in their discretion, consider necessary from time to time.
"Program Site" means the website for the Program operated by Mobair and situated at https://mobair.com.
"Sub-Affiliate" means an independent third party contracted by the Affiliate.
2. THE PROGRAM
- 3.1. Offers will be posted to the Program Site.
- 3.2. Mobair grants the Affiliate a limited, non-exclusive, non-transferable right to download Offers from the Program Site and to publish the same on the Affiliate's websites and in electronic mail correspondence sent by the Affiliate, all of which must be done in accordance with this Agreement, Mobair Policies, as amended from time to time, and any additional terms and conditions affixed to each of the said Offers.
- 3.3. The Affiliate agrees not to modify, alter, misrepresent or embellish the Offer or any part of the Offer including without limitation any text or images provided by or on behalf of Mobair or the Client in any way, directly or indirectly, without the express prior written consent of Mobair.
- 4.1. Mobair will pay to the Affiliate a commission (the "Commission"), calculated in accordance with the payment terms outlined in each Offer posted by Mobair on the Program Site. Mobair applies a monthly NET 30 payment plans at its sole discretion, unless mutually agreed otherwise. Notwithstanding of the selected payment method (e.g. paypal, payoneer, webmoney etc.) the Affiliate shall provide Mobair with their actual bank details.
- 4.2. Commissions will be paid to the Affiliate only following receipt by Mobair of payment from the Client in respect of such Offer published in the Program online reporting system. Mobair may, in its sole discretion and from time to time, elect to advance to the Affiliate part or all of the Commissions prior to receipt of payment from the Client, but in no event will Mobair be obligated to do so.
- 4.3. The Affiliate acknowledges and agrees that payment of Commissions may be delayed where the Affiliate has not provided Mobair with current particulars in accordance with paragraph 6.2(m) of this Agreement and that in no case will Mobair be liable to the Affiliate for any loss, costs or expenses directly or indirectly incurred by the Affiliate as the result of such delay.
- 4.4. Minimum amount that can be paid to the Affiliate in a given billing period must exceed US$500.00 (Five Hundred US Dollars). Payment in the amount less than US$500.00 is possible in case of termination of the Agreement mutually agreed by the parties or its cancelation that is not related to any breach of contractual provisions or applicable laws by the Affiliate, or upon individual agreement between the parties.
- 4.5. Commissions due and payable by Mobair to an Affiliate will not accrue interest.
- 4.6. Payments to an Affiliate in accordance with this Section will be based upon the records kept by Mobair and reported in Mobair's online reporting system and audited by the Clients, from time to time.
6. COVENANTS, REPRESENTATIONS AND WARRANTIES
- 7.1. The Affiliate covenants and agrees to indemnify and save harmless Mobair, its parent company and their respective shareholders, directors, officers, and employees (collectively, the "Indemnified Group") from and against any and all claims or judgments, including all associated legal fees, expenses and disbursements actually incurred, arising out of any breach of this Agreement by the Affiliate or any Sub-Affiliate or the exercise by the Affiliate of any right under this Agreement or any act or omission of the Affiliate, a Sub-Affiliate or anyone for whom the Affiliate is in law responsible, including without limitation any damages, losses, consequential or otherwise, arising in any manner (including those arising from or incidental to any liability or other lawsuit, claim, demand or other action brought) as a consequence of any act or omission of the Affiliate or any person for whom the Affiliate is in law responsible, whether or not the Indemnified Group or any of them are named as a party defendant in any such proceedings and whether or not the Indemnified Group or any of them are alleged to be negligent or otherwise responsible for any damage or injury to persons or property. The obligation of the Affiliate to defend and indemnify as set out in this paragraph will survive termination of this Agreement for any reason and will not be otherwise limited by any other term or condition of this or any Agreement. Mobair may, at its election in its sole discretion, assume the exclusive defense and control of any matter otherwise subject to indemnification by Affiliate. Mobair may participate in the defense of all claims as to which it does not assume defense and control, and Affiliate shall not settle any such claim without Mobair’s prior written consent.
8. DISCLOSURE OF INFORMATION
- 8.1. Mobair or its directors, may, from time to time, disclose to the Affiliate certain information relating to Mobair's business or to Mobair’s Clients, subsidiaries, Affiliates, agents, or employees; business and marketing plans, strategies and methods which may not be standard industry practice or which are not generally known in the industry; or studies, charts, plans, tales or compilations of business and industrial information acquired or prepared by or on behalf of Mobair (all collectively referred to as the "Confidential Information"). The Affiliate acknowledges that Confidential Information will be provided at the sole discretion of Mobair, and nothing in this Agreement obligates Mobair, its directors, agents or employees to disclose or grant to the Affiliate access to any Confidential Information.
8.2. Unless expressly authorized in writing by Mobair, the Affiliate covenants and agrees:
- to use the Confidential Information only for the purposes expressly contemplated in this Agreement; and
- that no Confidential Information will be disclosed to any third party, affiliate, subsidiary, Sub-Affiliate, agent, or employee of the Affiliate without the prior written consent of Mobair, which may be unreasonably and arbitrarily withheld.
- 8.3. The Affiliate acknowledges that Mobair remains the sole and exclusive owner of all right, title and interest in and to the Confidential Information. The Affiliate agrees that the Confidential Information will not be copied or otherwise reproduced without the express prior written consent of Mobair.
- 8.4. Upon termination of this Agreement, or otherwise on demand by Mobair, the Affiliate agrees that it will promptly deliver to Mobair all notes, data, tapes, reference items, sketches, drawings, memoranda, records, diskettes, electronic communications in any form and any other materials in any way relating to any of the Confidential Information in the possession of the Affiliate or any affiliate, subsidiary, Sub-Affiliate, agent, or employee of the Affiliate.
8.5. The Affiliate acknowledges and agrees that:
- the provisions of this Section and the Affiliate's agreement with the same are of the essence and constitute a material inducement to Mobair to enter into this Agreement;
- the provisions of this Section shall be construed independently of any other provision of this Agreement, and the existence of any claim or cause of action the Affiliate may have against Mobair, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by Mobair of the provisions of this Section;
- that any breach of this Section would cause irreparable harm to Mobair for which damages might not be an adequate remedy, and the Affiliate therefore agrees that in the event of any such breach Mobair will be entitled to seek, in addition to any other right accruing to Mobair under this Agreement or otherwise in law or equity, injunctive relief against the Affiliate without the necessity of proving actual damages; and
- notwithstanding any other provision of this Agreement, this Section shall survive the termination of this Agreement, however caused.
- 8.6. The Affiliate agrees to indemnify and save harmless Mobair against any and all loss, costs or expenses, inclusive of court costs and legal fees on a solicitor and own client basis, which Mobair may incur as the direct or indirect result of any unauthorized disclosure of the Confidential Information by the Affiliate or any person for whom the Affiliate is responsible, in law.
- 9.1. During the term of this Agreement and for a period of six (6) months thereafter, the Affiliate will not seek, in any way, to undermine the goodwill of Mobair, and in particular, the Affiliate will not, directly or indirectly (1) solicit or entice or attempt to solicit or entice any of the employees of Mobair to enter into employment service with the Affiliate or a competitor of Mobair; or (2) directly or indirectly enter into any agreement or contract, written or otherwise, with any Client or otherwise provide services to any third party for the ultimate benefit of a Client which might, in the opinion of Mobair, compete with any services provided by Mobair to that Client; or (3) solicit, engage, contract, license, or work with any client whose offer it or any of its Sub-Affiliates marketed hereunder without the prior written approval by an authorized party at Mobair.
Affiliate agrees and understands that Mobair has incurred significant expense forming Mobair's affiliate network and in providing services for the benefit of its Clients, and Affiliate agrees and understands that in the event of a breach by Affiliate of this section, Affiliate shall pay Mobair as liquidated damages an amount equal to Mobair's profits for the preceding 6 (six) months generated by the campaigns for such Client. The liquidated damage remedies provided herein in this section shall not preclude Mobair from seeking injunctive relief.
10. DISCLAIMER AND LIMITATION OF LIABILITY
- 10.1. Mobair disclaims all warranties, conditions, representations, indemnities and guarantees with respect to any matter, whether express or implied (including without limitation any warranty of profitability, satisfactory quality, merchantability, fitness for any particular purpose, title and non-infringement).
- 10.2. Notwithstanding any other provision of this Agreement, Mobair additionally disclaims all obligations and liabilities on the part of Mobair and those for whom it is in law responsible for any damages, including, but not limited to, indirect, special, and consequential damages, attorneys' and experts' fees, and court costs (even if Mobair has been advised of the possibility of such damages, fees or costs), arising out of or in connection with this Agreement.
- 10.3. In no circumstance will Mobair be liable to the Affiliate for any consequential, indirect, special, punitive or incidental damages or lost profits of the Affiliate or the Affiliate's successors or assigns (including without limitation claims for loss of goodwill, use of or reliance on the services provided hereunder, stoppage of other work or impairment of other assets) arising out of breach or failure of express or implied warranty, breach of contract, misrepresentation, negligence, strict liability in tort or otherwise. Without limiting the generality of the foregoing, any liability of Mobair shall be limited to the total amount paid to Affiliate by Mobair under this Agreement during the last six (6) billable months preceding the liability. Without limiting the foregoing, Mobair will not be liable for any failure or delay resulting from any governmental action, fire, flood, insurrection, earthquake, power failure, riot, explosion, embargo, strikes whether legal or illegal, labor or material shortage, transportation interruption of any kind, work slowdown, actions or inaction of Affiliate or third parties, Affiliate's equipment or software and/or any third party equipment or any other condition affecting production or delivery in any manner beyond the control of Mobair.
- 11.1 Either party may terminate this Agreement, at any time, on forty-eight (48) hours’ Notice to the other party. If Mobair believes the Affiliate has breached this Agreement, it reserves the right to suspend the account of the Affiliate immediately. The account can later be restored if the situation is resolved amicably.
- 11.2. Notwithstanding termination of this Agreement for any reason, the Affiliate covenants and agrees that it will continue to be bound by the terms and conditions set out in Sections 5, 7, 8, 10, 11 and 13.1 of this Agreement.
- 11.3. The agreement shall be entered for an indefinite term, unless terminated by either party.
- 12.1. Mobair may assign this Agreement without the Affiliate's prior consent. The Affiliate may not assign this Agreement without the express written consent of Mobair.
- 12.2. Mobair reserves the right to change, amend or alter this Agreement at any time, for any reason, or for no reason at all, at its sole discretion. The most recent version of this Agreement will be posted on Mobair website and in the respective section of the Program tracking platform. Although Mobair may provide notice of material changes to this Agreement to the Affiliate but it is the Affiliate’s sole responsibility to keep themselves informed of any such changes or amendments.
- 12.3. Any notice or other communication ("Notice") permitted or required by this Agreement will be in writing and given by personal delivery or transmitted by facsimile or electronic mail to the receiving party at the address provided to Mobair by Affiliate in its Mobair Program account. Any such Notice will be deemed to have been received on the date on which it was transmitted by facsimile or electronic mail or delivered.
- 12.4. No term or condition of this Agreement will be deemed waived and no breach excused, unless such waiver or consent excusing the breach is in writing and signed by both parties.
- 12.5. In the event that any term, covenant or condition of this Agreement is declared indefinite, invalid, illegal or unenforceable by a court having jurisdiction then this Agreement with respect to the remaining terms, covenants or conditions will continue in force.
- 12.6. This Agreement will inure to the benefit of and be binding upon the respective successors, heirs and assigns of both Mobair and the Affiliate.
- 12.7. This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this agreement, supersedes any previous or contemporaneous representations, negotiations, understandings, and agreements, oral or written.
- 12.8. This Agreement shall be governed by, construed and enforced in accordance with the laws of England and Wales; all matters concerning the performance thereof shall be construed, interpreted, applied and governed in all respects in accordance with the laws England and Wales. The state and/or federal courts located in London, UK shall have exclusive jurisdictions over any disputes arising out in connection with this Agreement and the performance thereof.
- 12.9. MOBAIR DOES NOT GUARANTEE THAT THE AFFILIATE OR ANY THIRD PARTY WILL BE ABLE TO ACCESS MOBAIR WEBSITE AT ANY PARTICULAR TIME. MOBAIR SERVICES ARE PROVIDED ON AN “AS-IS, AS-AVAILABLE” BASIS. EXTERNAL FACTORS AND/OR FACTORS BEYOND MOBAIR CONTROL MIGHT CAUSE SERVICE DISRUPTIONS AT TIMES FOR WHICH MOBAIR MIGHT NOT HAVE ANY POWER OVER.