This Affiliate Network Operating Agreement (the "Agreement") is made and entered into by and between Sapphirum Network ("Sapphirum Network" or "we"), a company duly incorporated and operating under the laws of the British Virgin Islands, and you ("you" or "Affiliate"), the party submitting an application to become a Sapphirum Network affiliate. By accepting these Terms and Conditions you also agree to be bound by the terms and conditions set out in individual applicable Offers as offered by Sapphirum Network, forming an integral part hereof and prevailing, should there be any contradiction.
The following words and phrases used in the Agreement shall mean:
The Agreement – this Affiliate Network Operating Agreement, including all and any modifications and/or attachments to it.
Advertiser – a party that intends to attract Visitors to their site and motivate them to perform Specified Actions.
Affiliate – a party that is interested in showing ads on their side and receiving money, for specified actions of Visitors.
Affiliate Network - a broker's system between Advertiser and Affiliate that is performing main operations like rotating Creative Media files of Advertiser on Sources, managing statistics of Impressions, Clicks and Conversions of Visitors, statistics of all financial data and payments between all subjects.
Commission – money paid from Affiliate Network to Affiliate.
Conversion - the completion of Specified Actions on Advertiser's site, such as a purchase, registration, or sign-up etc.
Creative Media - text, audio, visual or audiovisual material (file) prepared to be demonstrated to Visitors, motivating them to perform valued actions for Advertiser. In many cases, it is a picture in GIF, PNG, JPG or other format.
Fraud – any actions of Affiliates in breach of the conditions of Offers and/or these Agreement and/or applicable laws as to the Traffic sources, types, volumes, etc.
Landing Page - specific URL where Advertiser wants to lead Visitors traffic for a specific campaign.
Links – Segments of text or a graphical item that serves as a cross-reference between the Source and Landing Page.
Offer or Campaign – Applies to Affiliate network: A proposal made to Affiliate that expresses readiness to pay money to the affiliate for specific actions of Visitors. It includes next parameters:
Specified Action – an action, specified by the Advertiser as Specified Action and performed by a Visitor having clicked through the Link. The Specified Action is regarded as such only if all of the information required for such action is completed within the time period allowed by Sapphirum Network and the action is not later determined by Sapphirum Network to be fraudulent, incomplete, unqualified or a duplicate.
Traffic - the flow of Visitors who have interacted with an ad in any way. The traffic may vary by type and source.
Traffic Source – web, mobile, or other resources employed by the Affiliate to publish Links and Creative Media.
Visitor – Party that visits Traffic Source and watches ads, then clicks Creative Media and performs Conversions. The Visitor must be a person, not a computer generated visitor, such as a robot, spider, computer script or other automated, artificial or fraudulent method to appear like an individual. Use of pre-populated fields is forbidden.
This Agreement applies to your participation in the Affiliate Network run by Sapphirum Network as an Affiliate, subject to consideration and terms and conditions as set out in individual Offers you can access through the Affiliate Network.
All obligations of Sapphirum Network are subject to acceptance of you as an Affiliate and your continued compliance with the terms and conditions of this Agreement, as well as all and any disclaimers, limitations of liability or restrictions in this Agreement and/or Offers.
The Affiliate shall:
Except as otherwise provided in this Agreement or with the consent of Sapphirum Network, 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 Network, 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 Network to develop, enhance or operate a service that competes with the Affiliate Network, or assist another party to do the same.
We grant you a nonexclusive, nontransferable, revocable right to use the Links and Creative Media and to access our web site through the Links and Creative Media solely in accordance with the terms of this Agreement, for the sole purpose of identifying your Traffic Sources as a participant in the Affiliate Network.
You may not alter, modify, manipulate or create derivative works of the Links or any Sapphirum Network graphics, creative, copy or other materials owned by, or licensed to, Sapphirum Network in any way. You are only entitled to use the Links and Creative Media to the extent that you are a member in good standing of the Affiliate Network. We may revoke your license anytime, whether by giving a written notice to this end or by any other means we shall consider appropriate. Except as expressly stated herein, nothing in this Agreement is intended to grant you any rights to any of Sapphirum Network's trademarks, service marks, copyrights, patents or trade secrets. You agree that Sapphirum Network may use any suggestion, comment or recommendation you choose to provide to Sapphirum Network without compensation. All rights not expressly granted in this Agreement are reserved by Sapphirum Network.
This Agreement shall commence on the date of our approval of your Affiliate Network application and shall continue thereafter until terminated as provided herein. You may terminate your participation in the Affiliate Network at any time by removing all Links from your Traffic Source, deleting all copies of the Links. We may terminate your participation in one or more Offers or this Agreement at any time and for any reason which we deem appropriate with or without prior notice to you. 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 Sapphirum Network or Advertiser’s intellectual property, and will cease representing yourself as a Sapphirum Network 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.
In addition to any other rights and remedies available to us under this Agreement Sapphirum Network 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) Sapphirum Network determines that you have violated this Agreement or conditions of respective Offer, (ii) Sapphirum Network receives any complaints about your participation in the Affiliate Network which Sapphirum Network reasonably believes to violate this Agreement or (iii) any Specified Action is later determined to have not met the requirements set forth in this Agreement or respective Offer. 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, Sapphirum Network 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.
All emails, mobile messages, SMS sent in connection with the Affiliate Network must include the appropriate party's opt-out link. From time to time, we may request - prior to your sending emails containing linking or referencing the Affiliate Network that you submit the final version of your email to Sapphirum Network for approval by sending it to your Sapphirum Network representative and upon receiving written approval from Sapphirum Network of your email the email may be transmitted to third parties.
You are expressly prohibited from using any persons, means, devices or arrangements to commit fraud, violate any applicable law, interfere with other affiliates or provide false and misleading information in connection with referrals through the Links or the generation of Commissions. 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. Sapphirum Network shall make all determinations about fraudulent activity in its sole discretion basing on its own data and basing on the data provided by the Advertisers.
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, Sapphirum Network represents and warrants that it shall not knowingly violate any law, rule or regulation which is applicable to Sapphirum Network's own business operations or Sapphirum Network's proprietary products or services.
We may modify any of the terms and conditions of this Agreement at any time 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 within such ten (10) business day period. Your continued participation in this Affiliate Network ten (10) business days after such change notice has been posted will constitute your acceptance of such change. In addition, Sapphirum Network 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 Sapphirum Network to remove, alter or modify any Link, graphic or banner ad that is being used by Affiliate as part of the Affiliate Network. This article on making modification applies solely to the text of this Agreement.
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 Network and each Offer and are not relying on any representation, guarantee or statement other than as set forth in this Agreement or Offer.
Affiliate hereby agrees to indemnify, defend and hold harmless Sapphirum Network and Advertisers 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) based on (i) any failure or breach 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 Sapphirum Network or Client intellectual property, or (iii) any claim related to your Traffic Sources, including but not limited to, the content contained on such Traffic Source (except for the Links).
Sapphirum Network hereby agrees to indemnify, defend and hold harmless the 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) based on a claim that Sapphirum Network is not authorized to provide you with the Links.
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, Sapphirum NETWORK 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. Sapphirum NETWORK 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. Sapphirum NETWORK EXPRESSLY DISCLAIMS ANY LIABILITY FOR ANY ACT OR OMISSION OF A CLIENT OR THEIR PRODUCTS OR SERVICES. Sapphirum NETWORK DOES NOT GUARANTEE THAT AFFILIATE WILL EARN ANY SPECIFIC AMOUNT OF COMMISSIONS.
IN NO EVENT SHALL Sapphirum NETWORK 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 Sapphirum NETWORK. IN NO EVENT WILL Sapphirum NETWORK BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PERSONAL INJURY / 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 Sapphirum NETWORK HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. Sapphirum NETWORK'S CUMULATIVE LIABILITY TO AFFILIATE, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE AMOUNTS PAID TO AFFILIATE BY Sapphirum NETWORK IN COMMISSIONS DURING THE THREE (3) MONTHS IMMEDIATELY PRIOR TO SUCH CLAIM.
The Agreement is construed in accordance with and governed by the laws of the British Virgin Islands. Affiliate shall be responsible for the payment of all attorneys’ fees and expenses incurred by Sapphirum Network to enforce the terms of this Agreement.
This Agreement contains the entire agreement between Sapphirum Network and Affiliate with respect to the subject matter hereof, and supersedes all prior and/or contemporaneous agreements or understandings, written or oral. Affiliate agrees that Sapphirum Network 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 Sapphirum Network "clicks through" or otherwise indicates its acceptance thereof.
Should there be any further written contract made between Sapphirum Network or its subsidiaries and/or affiliated companies and Affiliate and should any of the terms and conditions of such contract contradict terms and conditions hereof, such contract shall prevail. Should any Offer contain any terms and conditions that contradict such contract or this Agreement, the term and conditions of the Offer shall prevail.
Affiliate may not assign all or any part of this Agreement without Sapphirum Network's prior written consent. Sapphirum Network 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. 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 hereunder shall operate as a waiver of any such rights. No waiver of any default or breach shall be deemed a continuing waiver or a waiver of any other breach or default.
By submitting an application to Affiliate Network, 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 Network. 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. This Agreement was last revised on June 7th, 2018.