Monetrack Merchant Terms and Conditions
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY.
In this document MONETRACK LTD is also referred to as "Monetrack". "MT", "We" "Our" or "Us" and You are also referred to as "Your", "Merchant", "Member" or "Advertiser".
THIS DOCUMENT IS A LEGAL AGREEMENT BETWEEN YOU AND MONETRACK ("the Agreement").
THE AGREEMENT IS BETWEEN YOU AND MONETRACK AND GOVERNS YOUR USE OF THE MONETRACK ONLINE AFFILIATE MARKETING NETWORK AND MONETRACK SERVICES. TO AGREE TO THESE TERMS AND CONDITIONS, CLICK "you agree." IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT CLICK "you agree" AND DO NOT USE THE MONETRACK ONLINE AFFILIATE MARKETING NETWORK OR ANY MONETRACK SERVICES.
YOUR USE OF THE MONETRACK ONLINE AFFILIATE MARKETING NETWORK AND/OR ANY MONETRACK SERVICES IS AN AFFIRMATIVE INDICATION THAT YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THE AGREEMENT.
1. Joining the Network
1.1. We operate an Affiliate marketing network (the "Network"), which enables advertisers like You (the "Merchants") to access Our pool of Publishers (the "Affiliates") to promote your online store, service and/or products. The Network includes MT's websites and related web-interfaces, data and software.
1.2. You will submit an application to Us for a merchant account which will be considered by Us and either accepted or rejected. We have absolute discretion whether to accept or reject Your application and in order for Us to make such decision we may ask You to provide Us with more information about You and your product/service.
2. Participation in the Network
2.1. As an approved merchant on the Network, You will be wholly responsible for monitoring and managing all aspects of Your merchant account including but not limited to:
2.1.1. Approval or rejection of Affiliates;
2.1.2. Approval or rejection of transactions (collectively referred to as "Transactions" and more particularly described in clause 5 below);
2.1.3. Placement and use of Your advertising material (including but not limited to images, texts, trademarks, logos, banners, urls) on Affiliates websites (referred to as "Your Merchant Link" and "Your Merchant Links");
2.1.4. Managing all campaigns (referred to "campaign" or " campaigns") within Your merchant account;
2.1.5. Maintaining a minimum credit deposited to Your Merchant Account. The amount will be determined during the review Your Merchant Account application.
2.1.6. Ensuring a good credit standing with MT by covering your liabilities to MT and Affiliates (being those Affiliates approved by you ("Approved Affiliates")) (see clause 2.2 below); and
2.1.7. Monitoring fraudulent or illegitimate activity. Monetrack bears no responsibility whatsoever for the monitoring and managing of Your merchant account including any campaign or campaigns within/connected to Your merchant account.
2.2. You will be liable to pay commissions on Transactions generated by any Approved Affiliates on the Network. Prior to You approving Affiliates on the Network You determine whether the commissions You will pay for each Transaction will be a flat rate or a percentage of the value of the Transaction.
2.2.1. Your merchant account will only remain active whilst you have good credit standing with Us and maintaining the required minimum deposit. A good credit standing means You make timely payments for:
22.214.171.124. Commissions that are payable in respect to all Approved Transactions generated by any Approved Affiliates;
126.96.36.199. Monthly service fees (see clause 3 below) that are payable to Monetrack.
2.2.2. If the outstanding balance of Your merchant account is overdue for more than 5 days, Monetrack may suspend its operation without notice to you.
2.2.3. In the event that Monetrack suspends the operation of Your merchant account You will not hold Monetrack liable or responsible for any loss or damage You suffer as a result of that suspension.
2.3. We do not guarantee that Your participation as a merchant on the Network:
2.3.1. Will result in the successful marketing of Your product and/or service;
2.3.2. That any online traffic to your website will be generated.
2.4. Monetrack prohibits the use of the Network by Merchants who operate websites containing pornographic, unlawful, defamatory, obscene, harassing, or otherwise objectionable content.
2.5. You will not hold Monetrack liable or responsible for Your advertising material being placed on an Affiliate's website which contains pornographic, unlawful, defamatory, obscene, harassing, or otherwise objectionable content. The management and monitoring of the use of Your advertising material on Affiliate websites is Your sole responsibility.
2.6. Should a dispute arise between You and an Affiliate and Monetrack is requested by You and/or the Affiliate to intervene and assist in resolving the dispute, any such intervention and assistance provided by Monetrack is without prejudice to Monetrack's rights under the terms of the Agreement and Monetrack will not be held responsible or liable for the result of such intervention and assistance.
2.7. You must not breach anti-spam laws. Monetrack may terminate the Agreement and deactivate your merchant account if You engage in sending spam or unsolicited promotional activities.
2.8. You must provide timely responses to Approved Affiliates in relation to Your campaign or campaigns. All communication with Approved Affiliates should be via the merchant interface on the Network. If You change any terms and conditions in relation to Your campaign or campaigns You must inform Approved Affiliates of such changes in a timely fashion via the merchant interface on the Network.
2.9. You will actively manage and monitor Your merchant account and all active campaigns for fraudulent or illegitimate activity (e.g. use of invalid or stolen credit cards, falsified or duplicate leads, automated purchasing or lead submission).
3. Merchant Fees
3.1. In consideration for you accessing the Network, You will pay Monetrack a one-time service activation fee (referred to as Program Admission Fees) in amount of JPY300,000 ; and a monthly service fee (referred to as System Usage Fees), which is a defined percentage of total monthly affiliate commissions.
3.2. You are liable to pay Monetrack, in advance, a Deposit, in order to initially access the Network and thereafter to maintain access to the Network.
3.3. The exact amount of Deposit and the rate for System Usage Fees, will be determined during the review of Your Merchant Account application.
3.4. The System Usage Fees and Affiliate Commissions will be itemized in monthly Invoice issued on 1st of every month. The one-time Program Admission Fee will be included in the first Invoice.
3.5. Failure to pay for monthly Invoice will result in a suspension of Your merchant account until such time as those fees have been paid off.
3.6. Continued failure to pay the monthly Invoice may result in a permanent termination (a.k.a. Deletion) of Your merchant account.
3.7. All fees paid to Monetrack are non-refundable.
4.1. You merchant account must maintain a Deposit determined during the approval of your merchant account.
4.2. Invoice will be issued once a month on the 1st of the month. Upon reception of the Invoice, Your merchant account balance must be cleared by the 10th of the month, with a 5-day grace period.
4.3. Monetrack reserves the right to suspend Your Merchant Account for late payments of an Invoice, and/or permanently terminate Your Merchant Account if no payments is received by 20th of the month.
4.4. Upon reception of your payment for the Invoice, Monetrack will pay Approved Affiliates the amount of the commissions due by You to them for validated Transactions. In the event of late payments in Your merchant account, from which Approved Affiliates can be effected such payment, Monetrack will not be liable to Approved Affiliates and will not pay Approved Affiliates in respect of such commissions.
4.5. In the event that You fail to make payment to Monetrack for any amounts that become due and payable by You under the Agreement and Monetrack incurs further legal or other expenses in seeking to recover those amounts from You, You will be liable to Monetrack for the full amount of any such legal and/or other expense.
5.1. A Transaction occurs when a visitor or viewer of an Approved Affiliate's website visits your website and:
5.1.1. Immediately buys something or completes another call to action such as filling out a form; or
5.1.2. Does not immediately buy something or complete another call to action such as filling out a form but subsequently returns to Your website and does so. However, in this circumstance a Transaction will only occur if the cookie / tracking period has not expired since the Visitor first or subsequently clicked or viewed advertising/creative; and if during that time the visitor clicks on Your Merchant Link or views advertising creative from more than the one Approved Affiliate, the Transaction will be considered to have originated from the Approved Affiliate's on which the visitor most recently or last clicked or viewed advertising.
5.2. Approved Affiliates will earn commission for any Transactions which are (subject to clause 5.3) validated by You in Your merchant account, which validation you must not unreasonably withhold. For example, it would be reasonable for You to withhold validating a Transaction that was fraudulent or illegitimate. It is up to You to decide whether or not a Transaction is valid. If an Approved Affiliate does not agree with Your decision not to validate a Transaction that is a matter for You and the Approved Affiliate to deal with.
5.3. Transactions that are neither validated/approved nor rejected (referred to as “Pending Transactions”), when greater than thirty (30) calendar days old, will be validated automatically and cannot be disputed or reversed by You.
5.4. The commission rate in place at the time a Transaction occurs is the commission rate applicable to that Transaction regardless of whether it has been validated or not.
5.5. To ensure the integrity of the tracking and Affiliate payment for Transactions driven to the Merchant site, all campaigns should remain inactive until the relevant tracking codes provided to Merchants for implementation have been verified by Monetrack to be functioning correctly.
5.6. Exchange rates used to calculate commissions payable are agreed to be accurate and may include exchange fees charged by third party services.
6. Merchant Accounts
6.1. You are responsible for providing Monetrack with creative material and promotional tools with respect to campaign or campaigns. Normally this will include, as a minimum:
• Images as Banners;
• Textual data content
6.2. Merchants agree that they will not decline affiliates in a predatory fashion, or decline for reasons that are unfair. For example, Merchants are not allowed to decline affiliates simply because they are a current Member of one or more other Affiliate networks. Network choice is a freedom given to affiliates and is not to be dictated by a Merchant.
6.3. You will not hold Monetrack responsible for Your merchant account and/or campaign settings or closures and any resulting loss or damage You incur as a result of such settings or closures.
6.4. You are responsible to set and monitor compliance by Approved Affiliates of any terms and conditions which apply to Your campaign or campaigns.
6.4.1. You acknowledge that in the absence of any specific terms and conditions regarding the promotional methods/tools You require be used by Approved Affiliates, Approved Affiliates may use any method/tools to promote Your campaign or campaigns.
6.4.2. You acknowledge that in the absence of any specific terms and conditions regarding the use by Approved Affiliates of third-party search engines such as Yahoo, Bing, Google, Ask etc (including the use of keywords) to promote Your campaign or campaigns, Approved Affiliates may use any third-party search engines without limitations as to the use of keywords to promote Your campaign or campaigns.
6.4.3. You must act in good faith and abide by any terms and conditions You set when validating or cancelling Transactions.
6.5. Monetrack may from time to time request from You information relating to Transactions for the purposes of:
6.5.1. Audits that Monetrack may carry out on the Network for the purposes of ensure the Network is operating efficiently including the underlying databases and tracking and reporting systems.
6.5.2. Investigating high Transaction cancellation rates relating to Your campaign or campaigns. Monetrack may request Transaction information from You in order to carry out such investigation which information You will not unreasonably withhold.
6.5.3. You must provide Monetrack with any such information within five (5) business days of receiving a request from Monetrack which information you must not unreasonably withhold.
6.6. Third party software will not correctly record Transactions on the Network. You agree that You will not rely or nor will You seek to compel Monetrack to rely on reporting generated by third party software in respect of web traffic (including Transactions) generated via the Network. You acknowledge that reporting generated by third party software will be of no relevance whatsoever to Your obligations under the Agreement.
6.7. During the Term of this Agreement, You shall not solicit any Affiliate or Approved Affiliate, website, or e-mail provider that is obtained through the Services provided by Monetrack under this Agreement, nor shall You transfer any Affiliate obtained through the Services provided by Monetrack under this Agreement to any third party provider or any in-house program substantially similar to the Services being provided by Monetrack hereunder, and You shall not encourage any such Affiliate to so transfer. In the event You do directly solicit or cause to be transferred any Affiliate, You shall pay Monetrack what Monetrack would have otherwise earned had You not violated this provision. Except as expressly set forth above, nothing herein shall be deemed to restrict Merchants from entering into independent strategic partnerships or other agreements with Affiliates, or to prohibit Merchants from advertising, merchandising or promoting its products or services.
6.8 Selling Products. If You register any Products for sale via the MONETRACK Services, You agree, acknowledge, represent and warrant that:
All Products You register for sale via the MONETRACK Services must be approved by MONETRACK prior to You being able to sell the Products through the MONETRACK Services. In certain circumstances, MONETRACK may require You to modify your Products prior to being approved or prohibit your Products from being sold via the MONETRACK Services, in MONETRACK's sole discretion.
All Products You register for sale via the MONETRACK Services, and the offering and sale thereof via the MONETRACK Services, comply with all of Your country's laws and all applicable laws and regulations. It is your sole responsibility to obtain and maintain all applicable licenses and permits required for the operation of Your business.
Without further conditions or limitations, You authorize MONETRACK to list any Product You register for sale via the MONETRACK Services in the online, searchable marketplace of Products made available via the MONETRACK Services (the MONETRACK Marketplace"); and make it available for sale to Purchasers and/or for the persons and/or entities that Promote the Products made available via the MONETRACK Marketplace ("Affiliates") at the price designated by MONETRACK ("Retail Price") after taking into consideration Your suggestions regarding such Retail Price, including any applicable sales tax.
You will provide valid email addresses to which Purchasers or MONETRACK can send inquiries and receive a reply by end of the following business day. Purchasers and MONETRACK must also be able to receive a non-automated response within one business day, when necessary.
You will notify MONETRACK of any regulatory or legal complaints, or threats of such complaints, that You receive in connection with or in relation to a Product within two business days of Your receipt of such complaint. You shall assist MONETRACK, at Your sole cost and expense, in taking any necessary or appropriate actions reasonably requested by MONETRACK to respond to and/or resolve such complaints.
MONETRACK is not reponsible to collect and remit state or local transfer taxes for any retail transaction (including but not limited to sales or use tax) where it is legally required to do so. You will be solely responsible for the timely payment of such tax and any interest or penalties.
7. Campaign Closure and Termination
7.1. The Agreement commences when You submit an application which is accepted by Monetrack. The Agreement will stay in force until it is terminated in accordance with these terms and conditions. You may terminate this Agreement by giving Monetrack one calendar month's written notice. A termination will subject to this clause take effect on the expiry of such notice of termination.
7.2. Monetrack will initiate Termination if there are continued late payments or non-payments of Invoices, or You have breached the terms and conditions of this Agreement. In this case, Termination will take effect immediately.
7.3. Subject to clause 7.4, Your merchant account and all campaigns will be deactivated or closed on and from the date of termination.
7.4. In the event that the cookie period offered to Approved Affiliates expires after the period of notice stipulated in clause 7.1 but in any event no more than 60 days thereafter (the Residual Cookie Period"), then Termination of the Agreement (and the associated closures of all campaigns and Your Merchant account) will be effected only after expiry of the Residual Cookie Period. Cookie periods for the purposes of this clause shall be calculated from the date of service of a notice of termination under clause 7.1.
7.5. All Transactions during the Residual Cookie Period shall be dealt with in accordance with the Agreement.
7.6. Merchant campaigns that have not been made active after a period of one (1) year will be cancelled and the Merchant's account closed. Monetrack will take reasonable steps to contact a Merchant before closing a Merchant's account. In the event that Monetrack is unable to contact a Merchant and then closes the Merchant's account, the Merchant is still liable for all the outstanding fees i.e. commissions to Approved Affiliates and System Usage fees, to the date of service cancellation.
7.7. In the event that You do or omit to do something under the Agreement that has the effect of allowing Transactions to not being properly recorded on the Network, any commissions due to Approved Affiliates for such Transactions will still remain payable by You to the Approved Affiliate. You authorize Monetrack to invoice Your merchant account in respect of those commissions and effect payment to the Approved Affiliates.
7.8. Either You or We can terminate this Agreement immediately by giving the other party written notice if the other party:
a) is, or likely to become, insolvent or bankrupt
b) is unable to pay its debts or negotiates with its creditors; or
c) appoints an administrator or other insolvency practitioner.
8. Terminating an Affiliate from Your Campaign
8.1. Affiliates are approved by You in Your merchant account in relation to a campaign or campaigns manually approving them after an Affiliate submitting a request to You for approval.
8.2. You may terminate an Approved Affiliate from Your merchant account and from Your campaigns at any time by giving the Approved Affiliate written notice of the termination.
8.3. Monetrack is not responsible for an Approved Affiliates' non-compliance with a termination by You.
8.4. Monetrack may terminate an Approved Affiliate from Your campaign or campaigns in Monetrack's sole discretion and is not obligated to notify You of their removal. In doing so Monetrack will act in good faith and use its best endeavors to give notice to You of the need to terminate an Approved Affiliate before doing so.
9. Refund Policy
9.1. Any Deposit refund due to you by Monetrack is subject to Your merchant account’s credit standing with Monetrack. Monetrack's System Usage fee and Program Admission Fee are non-refundable.
9.2. Deposit refunds are issued back to the Bank Account as advised by You.
9.3. Monetrack is under no obligation nor will You hold Monetrack responsible to compensate You for financial losses (including loss of profits) as a result of Network software malfunctions, banking software malfunctions, payment gateway malfunctions or inadvertent Merchant selections.
9.4. Monetrack will not be held liable or responsible to repay, reimburse any bank fees or charge backs that You may be subjected to due to use of the Monetrack service and software or as a result of any misuse by Approved Affiliates.
10. Liability of Monetrack
10.1. Monetrack is not liable for any losses of any kind incurred by You resulting from:
10.1.1. The use by You of any service provided by Monetrack;
10.1.2. Any act or omission by an Affiliates or Approved Affiliate;
10.1.3. The closure of Your merchant account;
10.1.4. The termination of an Approved Affiliate / Merchant relationship;
10.1.5. The malfunction or failure of Monetrack ‘s systems, the Network or Monetrack's service offering due to matters including, but not limited to, the failure of Monetrack's or any other entity's software, hardware or communications technology or any part thereof; or
10.1.6. Delays, losses, errors, or omissions resulting from failure of any telecommunications or any other data transmission system, any act of God, any outbreak of hostilities, riot, civil disturbance, acts of terrorism, the acts of Government or authority (including refusal or revocation of any license or consent), fire, explosion, flood, theft, malicious damage, strike, lockout or industrial action of any kind.
10.2. All services provided by Monetrack must be used strictly for lawful purposes only.
10.3. Monetrack does not censor, edit or take any responsibility whatsoever for Approved Affiliate web site content or communications from the Affiliate web site.
10.4. If You decide to leave the Network and access any third-party web site, You do so at your own risk. Monetrack will not be responsible for any injury or any liability to You resulting from web site content or communication that may be offensive, misleading or illegal.
10.5. Monetrack is not liable or obligated to support or provide any technical advice relating to any Third Party software being used.
11. Trademarks, Copyrights and Proprietary Rights
11.1. Monetrack claims copyright in relation to the software and all website content (excluding Affiliate websites) comprising the Network and otherwise owned or operated by Monetrack.
11.2. You may not, however, distribute, modify, transmit, reuse, re-post, or use the content of the Network for public or commercial purposes, including the text and images without Monetrack's written permission.
11.3. You should assume that everything You see or read on the Network is copyrighted unless otherwise noted and may not be used without the written permission of Monetrack. Monetrack neither warrants nor represents that your use of materials displayed on the Network will not infringe rights of third parties.
11.4. Any communication or material You transmit or post to the Network by electronic mail or any other method, including any data, questions, comments, suggestions, or the like is, and will be treated as, non confidential, non-proprietary. Anything You transmit or post may be used by Monetrack or its Affiliates for any purpose, including, but not limited to, reproduction, disclosure, transmission, publication, broadcast and posting. Furthermore, You consent to the posting and transmission of any data from your online shopping cart, online store and any other source. Monetrack is free to use any data, ideas, concepts, know-how or techniques contained in any communication You send to the Network for any purpose whatsoever including, but not limited to, developing, manufacturing and marketing products using such information, without any additional compensation to You.
11.5. The trademarks and logos displayed on the Network are registered Trademarks of Monetrack and/or others. Nothing contained on the Network should be construed as granting, by implication, estoppel or otherwise, any license or right to use any Trademark displayed on the Network without the written permission of Monetrack or such third party that may own the Trademarks displayed on the Network. Your misuse of the Trademarks displayed on the Network, or any other content on the Network, except as provided in the Agreement, is strictly prohibited. Monetrack will aggressively enforce its intellectual property rights to the fullest extent of the law.
IN NO EVENT SHALL ANY MONETRACK PARTY, OR ITS HEIRS, SUCCESSORS AND ASSIGNS, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER ARISING OUT OF, RESULTING FROM, OR IN CONNECTION WITH THIS AGREEMENT AND/OR ANY (A) USE OF OR INABILITY TO USE THE MONETRACK SERVICES, (B) PERSONAL INJURY, PROPERTY DAMAGE, OR LOSSES OF ANY KIND, RESULTING FROM YOUR ACCESS TO AND/OR USE OF THE MONETRACK SERVICES, (C) UNAUTHORIZED ACCESS TO OR USE OF ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (D) INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE MONETRACK SERVICES, AND/OR (E) BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE MONETRACK SERVICES, WHETHER OR NOT MONETRACK IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE MAXIMUM CUMULATIVE AND AGGREGATE LIABILITY OF MONETRACK FOR ALL COSTS, LOSSES OR DAMAGES FROM CLAIMS ARISING UNDER OR RELATED IN ANY WAY TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED AN AMOUNT EQUAL TO THE TOTAL AMOUNTS DUE AND PAYABLE BY MONETRACK TO YOU UNDER THIS AGREEMENT FOR THE MONTH IMMEDIATELY PRECEDING THE DATE UPON WHICH SUCH DAMAGES ACCRUE. THE LIMITATION OF LIABILITY HEREIN IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN AND REFLECTS A FAIR ALLOCATION OF RISK. THE MONETRACK SERVICES, AND ANY SERVICES OR INFORMATION OFFERED THROUGH THE MONETRACK SERVICES, WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS AND YOU AGREE THAT THE LIMITATIONS OF LIABILITY AND DISCLAIMERS SPECIFIED HEREIN WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN CATEGORIES OF DAMAGES, IN SUCH JURISDICTIONS, YOU AGREE THAT THE LIABILITY OF MONETRACK SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY SUCH JURISDICTION.
NO GUARANTEE OF VALIDITY. MONETRACK does not endorse, approve, or certify any information provided on or through the MONETRACK Services, nor does it guarantee the accuracy, completeness, efficacy, timeliness, or correct sequencing of such information. Information provided on or through the MONETRACK Services may or may not be current as of the date of Your access, and MONETRACK has no duty to update and maintain such information. Additionally, the information provided on or through the MONETRACK Services may be changed periodically without prior notice. All content provided on or through the MONETRACK Services is provided "AS IS." Use of such information is voluntary, and reliance on it should only be undertaken after an independent review of its accuracy, completeness, efficacy, and timeliness.
12.1. You hereby agree to indemnify and hold harmless Monetrack, and its subsidiaries and merchants, and their directors, officers, employees, agents, shareholders, partners, members, and other owners, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable solicitors' fees) (any or all of the foregoing hereinafter referred to as "Losses") insofar as such Losses (or actions in respect thereof) arise out of or are based on
(i) Any claim that Our use of trademarks infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party,
(ii) Any misrepresentation of a representation or warranty or breach of a covenant and agreement made by You herein, or
(iii) Any claim related to your site, including, without limitation, content therein not attributable to Us.
(iv) Any fraudulent activity that may occur whilst using the service of MONETRACK.
(v) Any fees or losses incurred as a result of using the Network.
12.2. Monetrack has not reviewed all the sites linked to the Network and is not responsible for the content of any offsite pages or any other sites linked to the Network.
12.3. Monetrack assumes no responsibility, and shall not be liable for, any damages to, or viruses that may infect, Your computer equipment or other property as a result of Your access to, use of, or browsing in the Network or downloading of any materials, data, text or images.
13.1. "Confidential Information" includes any information which is disclosed to You and marked or described as confidential. Confidential Information also includes any information disclosed to You on the Network that is not otherwise accessible by the general public and which ought reasonably be treated as being confidential. Knowledge, information about Affiliates and Approved Affiliates, data and software are all examples of Confidential Information. If You are unclear on whether any information disclosed to You is Confidential Information, You should ask Us whether it can be disclosed.
13.2. You must not disclose any Confidential Information to any third parties and You must take all reasonable steps and precautions to prevent disclosure of Confidential Information. You must not use Confidential Information for any purpose other than enjoying Your rights or fulfilling Your obligations under the Agreement.
13.3. The disclosure of Our Confidential Information may cause Us irreparable harm, or may cause Us losses which cannot be recovered or compensated. Therefore, if Confidential Information is disclosed in breach of the Agreement, or if disclosure of Confidential Information is threatened, You agree that We can obtain an injunction against You to prevent disclosure. Our right to an injunction is in addition to any other rights We may have to protect Our Confidential Information. If the court grants Us an injunction, You must pay all of Our legal costs of applying for the injunction.
14.1. The Agreement will be interpreted so as to give effect to the intention of the parties and the spirit of the Agreement when taken as a whole.
14.2. In the Agreement, where any items are listed or given as examples, the list and examples are not definitive. Therefore, items similar to the listed items or examples may also be included. Where We use the singular tense in the Agreement, We are also referring to the plural tense (and vice versa). When We refer to an individual, We are also referring to companies and other legal entities.
14.3. The Agreement is personal to You. You may not assign or transfer any of your rights or obligations unless We agree in writing. We can assign or transfer any of Our rights or obligations without obligation to give You notice.
14.4. Neither party will be liable under the Agreement if it is prevented from performing its obligations by anything beyond its reasonable control.
14.5. The Agreement will not constitute a partnership or joint venture of any kind between You and Us, nor between any party and the agent of another party for any purpose. You have no authority to bind Us and We have no authority to bind You.
14.6. Third parties don't have any rights under the Agreement.
14.7. The Agreement is the whole agreement between You and Us. Any older agreements between You and Us relating this subject matter are replaced by the Agreement. Any terms or representations which are not included in this Agreement are not enforceable, but We are not limiting Our liability for fraud or fraudulent misrepresentation.
14.8. You agree to pay any, and all of Monetrack's legal expenses incurred as a result of a dispute between Us and You regardless of rulings and decisions.
14.9. You agree that Monetrack may identify You as a Monetrack Merchant in its client lists and other marketing materials, and that Monetrack may issue a press release approved by You (which approval shall not be unreasonably withheld) announcing the establishment of the relationship between You and Us. Any other uses of Your name and/or logo shall require Monetrack's prior written consent.
14.10 NO PROFESSIONAL ADVICE. MONETRACK provides professional information (for example, financial or compliance) for informational purposes only, which should not be construed as legal or accounting advice. You should seek independent professional advice from a person who is licensed and/or knowledgeable in the applicable area before acting upon any information, fact or opinion provided on or through the MONETRACK Services. You understand that MONETRACK employees, representatives, and/or agents do not provide advice pursuant to the authority of professional certifications or licenses and You will not treat information provided by our employees, representatives, and/or agents as such. You further understand that by receiving information, facts or opinions on or through the MONETRACK Services, You are not entering into a relationship with MONETRACK or its employees, representatives and/or agents that entitles You to client privileges that may be associated with any professional certifications or licenses.
DISCLAIMER. YOU ASSUME ALL RISK AND RESPONSIBILITY FOR YOUR DECISION TO USE THE MONETRACK SERVICES. THE MONETRACK SERVICES AND ALL RELATED SERVICES ARE OFFERED “AS IS” AND MONETRACK DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. NEITHER MONETRACK NOR ITS RELATED PARTIES AND AFFILIATES ENDORSE OR ARE RESPONSIBLE FOR THE ACCURACY OR RELIABILITY OF ANY INFORMATION, FACT OR OPINION PROVIDED ON OR THROUGH THE MONETRACK SERVICES.
15. Agreement and Changes
15.1. The regulations, terms and conditions contained herein represent the complete, final and exclusive agreement between Monetrack and the Merchant, and supersede all prior agreements, representations and understandings between Monetrack and the Merchant.
15.2. This Merchant Agreement may be terminated by Monetrack at any time. However, such termination does not affect the enforceability of the terms and conditions of this Agreement as they relate to acts and omissions during the period prior to such termination.
15.3. Monetrack reserves the right to change the terms and conditions or functionality of Monetrack at any time without notice. We will endeavor at all times to ensure Merchants have been notified when changes have been made to this Agreement. It is also agreed that after notification of Agreement changes, continued use of the Monetrack Network constitutes acceptance of this Agreement. If you do not agree with changes to our Agreement, the Merchant should cease promotion immediately and close their account.
15.4. The Merchant acknowledges that if any provision of this Agreement conflicts with any other rule, regulation, term or condition of the Site, the terms and conditions of this Agreement shall govern.
15.5. Governing Law; Dispute Resolution, Attorneys’ Fees. You agree that English law will govern this Agreement and that any action, suit, proceeding, or claim arising out of or related to this Agreement must be brought exclusively in courts chosen by MONETRACK. You hereby submit to the in personam jurisdiction and venue of such courts and waive any objection based on inconvenient forum. You agree to indemnify MONETRACK for all of its reasonable attorneys’ fees and costs incurred as a result of any action, suit, proceeding or claim brought by You or MONETRACK in which MONETRACK is found to be the prevailing party. YOU HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING, CLAIM OR COUNTERCLAIM ARISING UNDER OR IN RELATION TO THIS AGREEMENT.
15.6. English is Governing Language. This Agreement is in English and all disputes between the parties shall be resolved in English. You understand and acknowledge that any foreign language services provided by MONETRACK are for informational purposes only and it is Your obligation to obtain independent legal advice at Your own expense to ensure You understand the terms of this Agreement.
15.7. Our Relationship. This Agreement does not create any relationship of principal and agent, partners, joint venturers, employer and employee, fiduciary or similar relationship between the parties. You are prohibited from making any promise, warranty or representation on behalf of MONETRACK or obligating MONETRACK in any way. You may not represent to any person that You are the agent of MONETRACK, or are authorized to act on its behalf.
15.8. Assignment. MONETRACK may freely assign or transfer any or all of the rights and obligations described in this Agreement. You may not assign this Agreement or any of Your rights and duties hereunder without the prior written consent of MONETRACK. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
15.9. Severability. If any provision of this Agreement is determined by a court to be unenforceable or invalid, the validity of the remaining parts, terms or provisions shall not be affected by that determination, and such court shall substitute a provision that is legal and enforceable and is as close to the intentions underlying the original provision as possible.
15.10 Force Majeure. You nor MONETRACK shall be responsible for delays or failures in performance resulting from acts of God, strikes, lockouts, riots, acts of war and terrorism, embargoes, boycotts, changes in governmental regulations, epidemics, fire, communication line failures, power failures, earthquakes, other disasters or any other reason where failure to perform is beyond the control of, and not caused by, the non-performing party.
© 2016 Monetrack Limited. All rights reserved.
Updated on August 10th, 2016