Terms and Conditions
The object of these terms and conditions (these “T&C”) is to govern your relationship as an affiliate of Innovative Mobile Solutions Limited (“IMS”), the company trading as MobileCashout.
Upon acceptance of these T&C by you and by IMS, explicitly, implicitly, tacitly or by reference, these T&C will constitute a legally binding agreement, which, upon coming into effect, will replace all past agreements between the parties in relation to the aforementioned subject matter. They will constitute their entire agreement in relation to that matter, unless amended or completed with the explicit written consent of IMS.
1.1 IMS hereby grants to you, for the limited purpose of promoting its products or services, a non-exclusive, non-transferable, revocable licence to reproduce, display and distribute all links and advertising materials which IMS may, from time to time, provide to you for that purpose (the “Licensed Materials”).
1.2 You acknowledge that IMS and its licensors own and retain all intellectual property rights and interests in the Licensed Materials and that all associated goodwill will inure to their sole benefit.
2. FAIR DEALINGS
2.1 You acknowledge that the above licence does not give you the right to - and you undertake not to:
- portray IMS, its products or services in a negative light or use the Licensed Materials in any manner that is disparaging or misleading ;
- lead customers to believe that you are in any way affiliated with IMS or design your website(s) in a way that resembles the website(s) of IMS ; and
- without the explicit written consent of IMS, modify the Licensed Materials or use your own advertising materials in connection with the links provided to you by IMS.
2.2 In addition, you undertake:
- to promote the products and services of IMS only through direct traffic sources or internal media buying and not to resell any of its products or services to any third parties ; and
- to share the identity of your referrers with IMS and not to hide any of this information from IMS.
2.3 You acknowledge that any breach of the above undertakings is likely to cause irreparable damage to IMS and you agree, in the event of any such breach, that IMS may seek, in addition to or as an alternative to any other remedies, in its entire discretion, any injunction for specific performance necessary or useful to protect or restore its interests.
2.4 In the event of any such breach, you further agree that IMS may, alternatively or additionally, in its sole discretion, immediately and without notice, suspend any traffic generated from links displayed on your website(s) and that in this case, no commission or compensation shall be due to you for any loss of profit or for any other reason.
3.1 Subject to your continued compliance with the traffic restrictions annexed (the “Traffic Restrictions”), IMS will pay you a commission for every sale of its products and services generated from links displayed on your website(s).
3.2 The commission will be paid on a CPA basis, at the rate communicated to you by IMS, from time to time, in relation to each particular product or service.
3.3 The commission will be paid monthly on NET30 by wire transfer, net of any payment processing fees, chargebacks, refunds, fines, taxes and other costs borne by IMS in relation to your sales.
3.4 No commission will be paid until the balance on your account reaches a minimum of 100 €. Unpaid balances will be carried forward.
3.5 IMS may, without having to establish any particular breach of the Traffic Restrictions, in its sole discretion, temporarily or permanently, partly or entirely, withhold any commission otherwise payable to you :
- if it has reasonable grounds to suspect that you breached the Traffic Restrictions ;
- if it detects an abnormal number of chargebacks or refunds in relation to your sales ; or
- if it receives or has reasonable grounds to expect to receive a fine in relation to your sales.
3.6 In any of the above circumstances, IMS may, alternatively or additionally, in its sole discretion, immediately and without notice, suspend any traffic generated from links displayed on your website(s) and in this case, no commission or compensation shall be due to you for any loss of profit or for any other reason.
4.1 You undertake to reimburse to IMS all chargebacks, refunds and fines not already deducted from any commission and borne by IMS as a result of any breach of the Traffic Restrictions.
4.2 If the breach results in any business partner of IMS terminating, suspending or amending its agreement with IMS, you undertake furthermore to compensate IMS for any loss of profit resulting from such termination, suspension or amendment.
4.3 The indemnity above extends to all indirect and consequential damages incurred by IMS in relation to the chargebacks, refunds, fines, termination, suspension or amendment. In this respect, you acknowledge:
- (a) that chargebacks, refunds and fines may bear no relation to the actual loss borne by IMS or its business partners and may exceed any commission paid or otherwise payable to you ; and
- (b) that termination, suspension or amendments of an agreement between IMS and its business partners may deprive IMS of revenues and profits, not only in relation to sales generated by you but also in relation to sales generated by other affiliates.
5. SCOPE OF LIABILITY
5.1 Except in respect to any liability which is unlawful to exclude, the entire liability of IMS to you, whether in contract or in tort, shall be limited to 25,000 €.
5.2 Without prejudice to the indemnity provided in Clause 4, your liability to IMS, whether in contract or in tort, shall be unlimited.
6. REPRESENTATIONS AND WARRANTIES
6.1 The parties represent and warrant that they comply with all applicable laws and regulations.
6.2 Except as provided in Clause 6.1, IMS makes no express or implied representations or warranties in relation to the Licensed Materials or in relation to any other information, product or service provided by, through or in association with its affiliation program. IMS does not guarantee or promise that you will make any profit from its affiliation program.
7.1 All notices and consents shall be given by e-mail, to :
- email@example.com, if to IMS ; and
- to any address provided by you to IMS, if to you.
8.1 IMS does not have any duty to monitor your website(s), for which you remain solely responsible. This notwithstanding, IMS may monitor your website(s) and inform you of any changes which it feels should be made. You remain free to make those changes or not. But if you do not make the changes, IMS may terminate your affiliate relationship in accordance with Clause 9.
9. AMENDMENTS AND TERMINATION
9.1 These T&C (and any amendment or addendum thereof) may be amended or completed at will, unilaterally by IMS, by simple notice. If any such amendment or addendum is unacceptable to you, your only option will be to terminate your relationship as an affiliate of IMS, in accordance with Clause 9.2. Failure to terminate your relationship as an affiliate of IMS and your continued participation IMS’s affiliation program will constitute tacit acceptance to the amended or completed version of these T&C (and of any amendment or addendum thereof).
9.2 You relationship as an affiliate of IMS may be terminated at will, unilaterally by you or by IMS, by simple notice. Subject to Paragraphs (a) and (b), termination of the relationship will result in the immediate and automatic termination of these T&C and of all other agreements in effect between the parties whose object is to govern your relationship as an affiliate of IMS, with the exception, however of the indemnity provided in Clause 4, which is perpetual. Upon termination :
- you undertake to promptly delete all copies of the Licensed Materials in your possession ; and
- (c) subject to Clauses 3.1, 3.2, 3.3 and 3.5, IMS will pay you all unpaid commissions for sales made before the date and time of the termination notice. You will not be entitled to receive any commissions for sales made after the date and time of the termination notice.
10.1 The parties shall bear their own taxes. Payments shall be made gross of any tax, unless the payor is legally required to withhold or deduct taxes on account of the payee (or any other party), in which case payments shall be made net of any such taxes.
10.2 The parties shall cooperate to allow each other to comply with their tax obligations and if applicable to secure any tax treaty benefit. The parties shall inform each other forthwith of any enquiry, audit or other communication from any tax authority concerning the tax situation of the other party. The parties shall refrain, except to the extent legally required, from providing any information on the other party party to any tax authorities. If a party is required to provide such information, except to the extent legally required, it shall consult with the other party and as much as reasonably possible take account of its comments and suggestions.
11.1 Any information disclosed from one party to the other and which, on the basis of all facts and circumstances, should reasonably be regarded as confidential to the disclosing party shall remain the sole property of the disclosing party, and the other party shall keep it in confidence and not use or disclose it without the explicit written consent of the disclosing party.
12.1 You may not, without the explicit written consent of IMS, assign your rights or obligations under these T&C (or any other related agreements between the parties) to any third party, related or not.
12.2 IMS may, at will and without notice, transfer or assign its rights or obligations under these T&C (or any other related agreements between the parties) to any third party, related or not.
13. NO PARTNERSHIP, AGENCY OR EMPLOYMENT
13.1 Nothing in these T&C (and any other related agreements between the parties) shall create or be deemed to create a partnership, agency or employment relationship between the parties.
14. CHOICE OF LAW AND ARBITRATION
14.1 These T&C (and all other related agreements between the parties) shall be governed by and construed in accordance with the laws of Ireland, without reference to any conflicts of law rules. Any dispute arising out of or in connection with these T&C (or any other related agreement between the Parties), including any question regarding their existence, validity or termination shall be referred to and finally resolved by arbitration under the LCIA Rules, which Rules are deemed to be incorporated by reference into this clause. The number of arbitrators shall be one. The seat, or legal place, of arbitration shall be Dublin, Ireland. The language to be used in the arbitral proceedings shall be English.
14.2 If any term of these T&C (or of any related agreement between the parties) is found to be unenforceable, the arbitrator shall amend such term as necessary to make it enforceable, having regard to the original intentions of the parties.
15. ABOUT IMS
15.1 Innovative Mobile Solutions Limited is a private company limited by shares, incorporated in Ireland and registered under 528225.
The following Traffic Restrictions may be amended by simple notice, unilaterally by IMS, in accordance with Clause 9. Any breach of the Traffic Restrictions will result in the forfeiture of any commission otherwise payable to you pursuant to Clause 3 and may trigger the indemnity provided in Clause 4.
|1. Co-registration marketing||NO|
|2. Content locking traffic||NO|
|3. Virtual currency traffic||NO|
|4. Use of Rewards of any kind||NO|
|6. Bot / software generated traffic||NO|
|7. Adware / spyware / malware traffic||NO|
|8. Misleading creatives||NO|
|9. Use of any unauthorised trademarks in the creatives||NO|
|10. Vouchers of any kind||NO|
|11. Personal accounts hacking creatives (like Instagram, Facebook)||NO|
|12. Stolen sim cards traffic||NO|
|13. Newsgroup postings||NO|
|14. IRC postings||NO|
|15. Google adwords promotions||NO|
|16. Facebooks ads promotions||NO|