THIS APPLICATION FOR ENROLLMENT AS A MARKETING AFFILIATE FOR BETTER WORLD COMMUNICATIONS LIMITED, IF ACCEPTED, WILL BECOME A LEGALLY BINDING AGREEMENT. BY CLICKING THE “I ACCEPT” BUTTON BELOW, YOU SUBMIT THIS APPLICATION FOR APPROVAL AND AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS. THIS APPLICATION FOR ENROLLMENT AS A MARKETING AFFILIATE FOR BETTER WORLD COMMUNICATIONS LIMITED, IF ACCEPTED, WILL BECOME A LEGALLY BINDING AGREEMENT. BY CLICKING THE “I ACCEPT” BUTTON BELOW, YOU SUBMIT THIS APPLICATION FOR APPROVAL AND AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS.
AFFILIATE MARKETING AGREEMENT Effective Date: September 1, 2017
1. Parties. The parties to this legal Agreement are you, and the owner of this moceanic.com website business, Moceanic. If you are not acting on behalf of yourself as an individual, then “you” means your company or organization. All references to “we”, “us”, “our”, “this website” or “this site” shall be construed to mean Moceanic.
2. Non-Exclusive Appointment of Affiliate and Restrictions. Effective upon our acceptance of your affiliate application and subject to the terms and conditions hereof and any written policies we may provide from time to time, we hereby authorize you to be a non-exclusive participant in the Moceanic Affiliate Program (also referred to as the “Program”) for purposes of promoting and marketing products and services authorized by us.
2.1 Our relationship shall be and shall at all times remain, that of independent contractors, and not that of employer and employee, franchisor and franchisee, joint venturers, or partners. No payment of any fee or equivalent charge is required of you by us as a condition to enter into this Agreement.
2.2 You are not authorized to accept orders or to enter into contracts or to create any obligation in our name, or to transact any business on behalf of us. 2.3 No license is granted herein for use of our tradename or trademarks; however, during the term of this Agreement, you are authorized to use any materials provided by us such as social media posts, banner advertisement links, button links, and/or a text links which may incorporate our tradename or trademarks, but only in the form provided by us. You do not obtain any ownership rights in any intellectual property, including, without limitation, any intellectual property with respect to the tracking URL(s), links, link formats, technical specifications, guidelines, or graphical artwork, or with respect to this site’s domain name.
2.4 You agree that we may notify you from time to time regarding the Program and policies with emails sent to your then-current email address listed for your affiliate account. We reserve the right in such emails to modify existing policies and/or to add new policies regarding the Program, and you agree to comply with any such policies.
2.5 You agree that we have the right to approve your advertisements and promotions prior to publication by you; however, we agree to exercise this right only after prior notice to you. Prior approval may be in the form of approved advertisements and promotional materials posted to our website.
2.6 You may use search engine optimization and online advertising in your marketing efforts; provided, however, you are not authorized to purchase or register any keywords, search terms or other identifiers that include any principal words in our tradename, domain name, or any of our trademarks or logos, or any variation thereof (“Proprietary Terms”) for use in any search engine, portal, pay-per-click advertising service, or other search, advertising, or referral service. From time to time we may request that you cause any applicable web search provider to exclude Proprietary Terms from keywords used to display your advertising content in association with search results, assuming the provider of such web search engine offers such exclusion capabilities, and you agree to promptly comply with such requests.
2.7 Except as may be expressly authorized in writing by us, appointment of sub-affiliates is not permitted by you. 3. Commissions; Payment Terms.
3.1 After acceptance, you will receive a unique affiliate URL, which you will use to advertise our products and services. When another person (a “Prospect”) clicks through that URL, a cookie (or similar tracking technology (hereinafter “Cookie”)) will be set in the Prospect’s browser. When the Prospect completes a purchase with us by using your affiliate URL link, the Cookie on the Prospect’s browser, corresponding to your unique URL, registers a “Sale.” If a Prospect has multiple affiliate Cookies, the most recently-acquired Cookie will determine which affiliate is credited with a Sale. You will be paid a commission for each Sale. In no event will we be liable for more than a single commission for a single Sale. In the event of a dispute between competing affiliates for credit for a Sale, our determination will be final. Commission payments will be made to you in accordance with our then-current payment policy.
3.2 You are eligible to earn commissions only on Sales that occur during the term of this Agreement. We may withhold your final payment for a reasonable time to ensure that the correct amount is paid.
3.3 You are responsible for any and all tax liabilities, including without limitation, income tax liabilities that arise from or in any way relate to any commissions you receive from us. If You are not a resident of the United States, we may withhold tax (including without limitation VAT) where required to by applicable law. Where we are required to withhold tax, we will document such withholding.
3.4 All commissions will be payable in U.S. dollars via PayPal or electronic bank transfer.
3.5 We reserve the right to change our prices at our discretion at any time.
3.6 WE MAKE NO REPRESENTATION OR WARRANTY REGARDING ANY POTENTIAL INCOME YOU MAY MAKE BASED ON YOUR PARTICIPATION IN THE PROGRAM.
4. Order Processing and Fulfillment. We will be solely responsible for all aspects of processing and fulfillment for Sales. We reserve the right to reject Sales that do not comply with our requirements and values.
5. Monitoring Rights.
5.1 You agree that we may monitor (i) your advertisements for our products and services regardless of the media, platform, or format, and (ii) your marketing methods, procedures, and communications by any means now known or hereafter developed for purposes of determining your compliance with this Agreement and applicable laws and regulations, including without limitation, monitoring your website(s), emails, and social media posts both directly by us and indirectly by online tracking and via third parties.
5.2 We will notify you via email regarding any requirement for assistance with monitoring your advertisements and promotions, and you agree to implement any and all such requirements, including without limitation by adding an email address specified by us to all of your email campaigns on behalf of the Program.
5.3 You also agree that we have the right to require you to modify or cease any of your advertisements, marketing methods, procedures, and communications. Your only recourse will be to terminate this Agreement and your participation in the Program.
6. Policies Regarding Spam, Text/SMS Messages and Unacceptable Marketing Methodology.
6.1 As a condition of your participation in the Program, you agree to comply strictly with all applicable laws (federal, state, and otherwise in all applicable jurisdictions) that govern marketing email, text messages, and SMS messages, including without limitation, the U.S. CAN-SPAM Act of 2003, Canada’s Anti-Spam Law, the U.S. Telephone Consumer Protection Act (TCPA), and all other applicable anti-spam and do-not-call laws and regulations. Violation of any of these laws and regulations will lead to immediate termination of this Agreement and your participation in the Program.
6.2 You agree to not use any of the following marketing methodologies: malware, adware, spyware, phishing, pharming, pop-ups, tool bars, and similar deceptive techniques.
7. Regulatory Compliance; The Federal Trade Commission (FTC).
7.1 You agree to comply strictly with all applicable laws and regulations including without limitation, FTC regulations and applicable state regulations regarding your marketing on our behalf. 7.2 The FTC classifies you as an “endorser” for our products or services that you market as our affiliate. Accordingly, you are required to disclose your “material connections” with us in your capacity as our affiliate. This means, among other things, that you should disclose the fact that you are compensated for promoting our products and services. Refer to the following FTC publication for guidance: https://www.ftc.gov/tips-advice/business-center/guidance/ftcs-endorsement-guides-what-people-are-asking.
7.3 For your website pages and at the bottom of all of your commercial emails, disclose your “material relationship” with the following disclosure:
Affiliate Compensation Disclosure: From time to time, we promote, endorse, or suggest products or services of others. In most cases, we will be compensated, either as an affiliate with a commission based on sales, or with a free product to review or use. Our recommendations are always based on (i) our personal belief in the high quality and value of the product or service, and (ii) our review of the product or service, or a prior relationship or positive experience with the sponsoring person or organization.
7.4 The FTC and various state laws prohibit advertising that is false or misleading. Accordingly, among other things, you are required (i) to substantiate your advertising claims prior to dissemination, and (ii) to state these claims in clear language that is both true and also not misleading. Refer to the following FTC publication for guidance: https://www.ftc.gov/tips-advice/business-center/advertising-and-marketing/online-advertising-and-marketing .
8. Your Representations and Warranties. You agree to make no representation or warranty regarding this site or our services or products.
9. Warranty Disclaimer. ALTHOUGH WE RESERVE THE RIGHT TO MAKE A LIMITED WARRANTY TO THE END-USER, WE MAKE NO WARRANTY TO YOU. WE MAKE NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED TO YOU. WE SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES INCLUDING WITHOUT LIMITIATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, AND DATA ACCURACY. WE MAKE NO REPRESENTATION OR WARRANTY AS TO THE ACCURACY, RELIABILITY, TIMELINESS OR COMPLETENESS OF ANY MATERIAL ON OR ACCESSIBLE THROUGH THIS SITE OR SERVICE. ANY RELIANCE ON OR USE OF SUCH MATERIALS SHALL BE AT YOUR SOLE RISK. WE MAKE NO REPRESENTATION OR WARRANTY (A) THAT THIS SIT OR SERVICE WILL BE AVAILABLE ON A TIMELY BASIS, OR THAT ACCESS TO THIS SITE OR SERVICE WILL BE UNINTERRUPTED, ERROR-FREE OR SECURE; (B) THAT DEFECTS OR ERRORS WILL BE CORRECTED; OR (C) THAT THIS SITE OR THE SERVERS OR NETWORKS THROUGH WHICH THIS SITE IS MADE AVAILABLE ARE SECURE OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. NO MARKETING OF BETTER WORLD PRODUCTS OR SERVICES IS AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER.
10. Disclaimer of Incidental and Consequential Damages. IN NO EVENT SHALL WE BE LIABLE TO THE OTHER UNDER ANY THEORY INCLUDING CONTRACT AND TORT (INCLUDING NEGLIGENCE AND STRICT PRODUCTS LIABILITY) FOR ANY INDIRECT, SPECIAL OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11. Liability Cap. In no event shall our aggregate liability, if any, including liability arising out of contract, negligence, strict liability in tort or warranty, or otherwise, including without limitation any liability for direct damages, exceed the total amount of referral fees paid or payable by us for the payment period immediately preceding your claim.
12. Indemnity. You agree to defend, indemnify and hold us harmless including without limitation our officers, directors, employees, owner(s), and parent company(ies) and assigns from and against all claims, demands, and causes of action of every kind and character without limit arising out of (i) any violation or breach of the terms and conditions hereof or of any applicable law or governmental regulation, and (ii) your conduct while acting as our affiliate. Your indemnity obligation includes, but is not limited to, any third-party claim against us for liability for payments for, damages caused by, or other liability relating to, you.
13. Confidential Information. You agree that all non-public information that we provide regarding the Program, including without limitation, our pricing, marketing methodology, and business processes, is our proprietary confidential information. You agree to use this confidential information only for purposes of exercising your rights as our affiliate while in strict compliance with this Agreement, and you further agree not to use or disclose this confidential information for a period of three (3) years after termination as our affiliate.
14. Disclosure of Personal Information. You agree to hold any personal information that we may disclose regarding a referred transaction in strictest confidence and to use such information only for purposes of monitoring that specific transaction.
15. Ownership. This site and the material provided on this site and our services is protected by law, including, but not limited to, United States copyright law and international treaties. The copyrights and other intellectual property rights in this material are owned by us and/or others. Except for the limited rights granted herein for participation in our Program, all other rights are reserved.
16. No Assignment. We may assign our rights under this Agreement at any time, without notice to you. Your rights arising under this Agreement cannot be transferred or assigned by you without our prior, written consent. Any purported transfer or assignment without our prior, written consent shall be null and void.
17. Term and Termination.
17.1 The term of this Agreement will begin upon our acceptance of your application and will end when terminated by either party. Either you or we may terminate this Agreement at any time, with or without cause, by giving the non-terminating party notice of termination.
17.2 Upon the termination of this Agreement for any reason, you will immediately cease use of, and remove from your site, all links to this site and all of our trademarks, trade dress, and logos, and all other materials provided by or on behalf of us to you in connection with the Program.
17.3 If we terminate this Agreement for cause, we will immediately halt the processing of any payments or charges for sales generated by you with the result that you will forfeit any unpaid commissions.
18. Notices. We may give notice to you by means of (i) a general notice in your account information, or (ii) by electronic mail to your e-mail address on record with us. Such notice shall be deemed to have been given upon the expiration of twelve (12) hours after posting to your account or by email).
19. Applicable Law; Arbitration.
19.1 All claims under any theory of liability in any way to this Agreement and all other claims or aspects whatsoever arising out of or in connection with this Agreement shall be governed and construed in accordance with the laws of Queensland, Australia, exclusive of any provisions of the United Nations convention on the international sale of goods and without regard to its principles of conflicts of law.
19.2 By agreeing to arbitration, you understand and agree that you are waiving your rights to maintain other resolution processes, such as a court action or administrative proceeding, to settle your disputes. Except for actions to protect intellectual property rights and to enforce an arbitrator’s decision hereunder, all disputes, controversies, or claims arising out of or relating to this Agreement or a breach thereof shall be submitted to and finally resolved by arbitration under the rules of the International Chamber of Commerce (“ICC”) then in effect. There shall be one arbitrator, and such arbitrator shall be chosen by mutual agreement of the parties in accordance with ICC rules. The arbitration shall take place in Brisbane, Australia, and may be conducted by telephone or online. The arbitrator shall apply the laws of Queensland, Australia to all issues in dispute. The controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The findings of the arbitrator shall be final and binding on the parties, and may be entered in any court of competent jurisdiction for enforcement. Enforcements of any award or judgment shall be governed by the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Should either party file an action contrary to this provision, the other party may recover attorney’s fees and costs up to $1000.00.
20. Severability. If any provision of this Agreement is declared invalid or unenforceable, such provision shall be deemed modified to the extent necessary and possible to render it valid and enforceable. In any event, the unenforceability or invalidity of any provision shall not affect any other provision of this Agreement, and this Agreement shall continue in full force and effect, and be construed and enforced, as if such provision had not been included, or had been modified as above provided, as the case may be.
21. Force Majeure. We shall not be liable for damages for any delay or failure of delivery arising out of causes beyond our reasonable control and without our fault or negligence, including, but not limited to, Acts of God, acts of civil or military authority, fires, riots, wars, embargoes, Internet disruptions, hacker attacks, or communications failures.
22. Survival. Those clauses the survival of which is necessary for the interpretation or enforcement of this Agreement shall continue in full force and effect in accordance with their terms notwithstanding the expiration or termination hereof.
23. Modification of Agreement. We reserve the right to modify this Agreement at any time by posting an amended Agreement that is always accessible through a link in your affiliate account and/or by giving you prior notice of a modification. You should check this Agreement periodically for modifications by scrolling to the bottom of this page for a listing of material modifications and their effective dates. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED USE OF THIS SITE FOLLOWING OUR POSTING OF AN AMENDED AGREEMENT OR PROVIDING YOU NOTICE OF A MODIFICATION WILL CONSTITUTE BINDING ACCEPTANCE.
24. Miscellaneous. The terms and conditions of this Agreement are enforceable to the extent permitted by law. This Agreement constitutes the entire understanding of the parties with respect to this site and merges all prior communications, representations, and agreements. The application the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. This license is written in English, and English is its controlling language.
–Material Modifications Since September 1, 2017: none