Terms and Conditions PassionTeck
1. ENTIRE AGREEMENT
The Terms and Conditions constitutes the entire agreement between PassionTeck and Affiliate (the “Contract”) and supersede all previous written or verbal communications or agreements.
Unless otherwise expressly agreed in writing by PassionTeck, the application of any other contract or conditions (including Affiliate’s own Terms and Conditions) is expressly excluded.
Use of the PassionTeck Service by Affiliate is irrefutable acknowledgement by Affiliate that it has read, understood and agreed to each and every term and provision of these Terms and Conditions.
PassionTeck shall have the right to amend, change or update the Terms and Conditions, in whole or in part, at any time in its sole discretion. Affiliate will be notified of any changes by email or via a change notice or new agreement Terms and Conditions posted on the PassionTeck Website. The continued use of the PassionTeck Platform and Services by Affiliate after the effective date of the updated Terms and Conditions shall constitute Affiliate’s binding acceptance to such modification(s).
In these Terms and Conditions, the words or expressions starting with a capital letter shall have the following meaning:
· Advertiser: PassionTeck’s client promoting its products and/or services to a mobile audience through the PassionTeck Platform and its network of Affiliates.
· Advertiser Content: content provided by an Advertiser for the needs of a Campaign.
· Affiliate: an individual or a legal entity registered with PassionTeck, who directly or indirectly operates an Internet audience, and who monetizes such audience by promoting the Campaigns CPA, CPI, CPL.
· Affiliate Link: Internet link provided by PassionTeck to its Affiliate for the promotion and distribution of the Advertiser’s Campaign, and which redirects to the Advertiser’s mobile website and/or marketplace.
· Affiliate Medium: website or application published by the Affiliate or by agents, subsidiaries, partners or subcontractors of the Affiliate.
· Affiliate Services: the promotional methods and traffic sources used by the Affiliate to promote Campaigns CPA, CPI, CPL.
· Charge-back: a debit to the Affiliate’s Account in an amount equal to a payment previously credited to this Account.
· Campaign: the promotion and distribution of the Advertiser’s promotional content on Affiliate Medium via Affiliate Links and Affiliate Services in the aim of generating Transactions.
· Campaign Conditions: all conditions, modalities and/or restrictions imposed by the Advertiser for the promotion and distribution of the Advertiser Content via Affiliate Links and Affiliate Services.
· PassionTeck Link: landing page of the PassionTeck Website containing the Affiliate Link.
· PassionTeck Platform: suite of technological solutions and managed services proposed by PassionTeck for the launch, management and distribution of Advertisers’ Campaigns CPA, CPI, CPL via PassionTeck’s network of Affiliates.
· PassionTeck Services: the range of services provided by PassionTeck to Advertisers and Affiliates through the PassionTeck Platform.
· PassionTeck Website: www.PassionTeck.com.
· Transaction: action defined by the Advertiser in the Campaign Conditions (ex: product purchase, service subscription, software/application download), which is voluntarily made by an end-user via an Affiliate Link.
· Tracking Code: code provided by PassionTeck enabling the tracking of end-user Transactions generated by an Affiliate Link.
a. Validity Conditions
The affiliation to the PassionTeck Platform and Services is open to legal entities and individuals aged of more than 18 (eighteen) years old with the full legal capacity to conclude contracts.
Upon the registration on the PassionTeck Website, PassionTeck creates a dedicated “Account” for the Affiliate.
Each Affiliate is entitled to create only 1 (one) Account, except in case of prior written approval of PassionTeck. PassionTeck reserves the right to deactivate duplicates Accounts without notice; such Accounts will be subject to Section 3 b below.
The creation of the Account is subject to the provision of the following identification elements by Affiliate:
If Affiliate is an individual:
· Name, address, email address,
· Copy of an identification document (passport, national identification card or driver’s license),
· nBank account details imperatively matching Affiliate’s name.
If Affiliate is a legal entity:
· Name and address of the head office of the company, email address, name of the main contact
· Copy of the certificate of registration of the company (plus the translation certified by a notary if the document is not in Italian);
· Bank account details imperatively matching Affiliate’s name.
· PassionTeck will check the information and documentation provided by Affiliate and may, in its sole discretion, invalidate the account or request additional elements from Affiliate.
If Affiliate fails to provide the requested elements within the deadline specified by PassionTeck at the moment of the subscription, the Account may be deactivated at any moment upon notice. Unless Affiliate sends the requested elements within the period indicated by PassionTeck in the deactivation notice, the Contract will be considered null and void and the Account invalid.
b. Invalid Accounts
Invalid Accounts will be closed effective immediately, and all the Transactions generated from such Account, if any, will not be subject to payment.
PassionTeck’s decision to invalidate an Account may not be challenged and Affiliate will not be entitled to any indemnification from PassionTeck further to such invalidation.
4. DESCRIPTION OF THE TECNOSWORLD SERVICES
a. Secured online Account
Affiliate can have access to and manage its Account in a dedicated and secured space on the PassionTeck Website. In this space Affiliate can subscribe to Campaigns CPA, CPI, CPL, have access to reporting tools and issue its payment requests to PassionTeck.
Affiliate shall be solely responsible for all usage and activity on its Account and for loss, theft or unauthorised disclosure of its password (except in case of established security breach on the PassionTeck Platform).
Affiliate undertakes to provide PassionTeck with prompt written notification of any known or suspected unauthorised use of its Account or any breach of the security of its Account.
b. Participation in Campaigns CPA, CPI, CPL
Affiliate may subscribe to Campaigns CPA, CPI, CPL for the opportunity to earn remuneration by promoting Advertisers on Affiliate Medium in accordance with the Campaign Conditions.
Participation in a Campaign implies the acceptance of the Campaign Conditions without any reserve by Affiliate and is subject to PassionTeck’s prior approval.
When participating in a Campaign, Affiliate is authorized and agrees to display the related Affiliate Link, PassionTeck Link and Advertiser Content on the Affiliate Medium for the duration and according to the conditions set forth in the Campaign Conditions.
Any Modification, update or termination of a Campaign will be notified to Affiliate with no less than 24 (twenty-four) business hours prior notice. Affiliate undertakes to promptly implement the notified modification, update or termination in good faith within the imparted deadline. PassionTeck reserves the right to retain payments in case of failure of Affiliate to implement any notified modification, update or termination in accordance with the terms of the notification.
PassionTeck reserves the right to withdraw Affiliate from any ongoing Campaign at its sole discretion with immediate effect. Affiliate will not be entitled to any indemnification for such withdrawal.
5. AFFILIATE OBLIGATIONS
a. Accurate and up-to-date Account
Affiliate undertakes to provide PassionTeck with accurate information about Affiliate’s identification and Affiliate Services, including a clear and complete description of all promotional methods used, and to maintain at all times such information up-to-date in its PassionTeck Account.
Affiliate will provide PassionTeck with all required information or documentation relating to its identity and/or the Affiliate Services upon first request.
b. Compliance with Terms and Conditions and Campaign Conditions
Affiliate represents and warrants that it will at all times comply with the Terms and Conditionsand the Campaign Conditions of all Campaigns CPA, CPI, CPL in which the Affiliate participates.
Affiliate undertakes to participate in the Campaigns CPA, CPI, CPL and use the Affiliate Links in a loyal and non-abusive manner.
In particular, and non-exhaustively, Affiliate undertakes:
· To include and maintain a PassionTeck Tracking Code within the Affiliate Links.
· Not to modify or alter the Advertiser Content and/or the Affiliate Link in any way.
· Not to use any Proxy IP address to sign-up or access its Account
· Not to place PassionTeck Links in third party newsgroups, message boards, blogs, unsolicited email and other types of spam, link farms, counters, chatrooms, or guestbooks;
· Not to use IRC channels, instant messages or similar Internet resources without prior written approval of PassionTeck;
· Not to engage in pop-up or pop-under advertising using any means involving third party properties and/or services/applications. Pop ups/unders are acceptable on a first party basis only when triggered by the Affiliate’s site content or by downloadable applications for which Affiliate is the owner/operator. Pop ups/unders delivered through downloadable applications cannot engage in means that force clicks or perform redirects.
· Not to use other Affiliate Services than those detailed by the Affiliate in its Account;
· Not to generate non-bona fide Transactions by using any device, program, software, robot, Iframes, hidden frames or any similar tool;
· Not to mislead the end-users, and not to use any mechanism which force a click-through leading to a Transaction;
· Not to engage in acts of fraud;
· That all promotions made through Apps will be compliant with the terms and conditions of the relevant Market Place.
c. Compliance with law and regulation
Affiliate represents and warrants that it has all appropriate authority and licences to operate the Affiliate Medium and the Affiliate Services. Affiliate shall remain solely responsible for Affiliate Medium and Affiliate Services.
Affiliate represents and warrants that the Affiliate Medium and the Affiliate Services will at all times be compliant with all relevant laws, regulations and generally accepted standards of behaviour and public order, applicable in France or in any other relevant territory, in particular with regard to respect for privacy, collection and processing of personal data, protection of individuals and minors, the rights of third parties and unfair competition.
In particular, Affiliate represents and warrants that:
· Affiliate will not infringe any proprietary right of an Advertiser, PassionTeck or any third party;
· The Affiliate Medium and the Affiliate Services will not directly or indirectly breach the terms of these TERMS AND CONDITIONS or contain any objectionable content in any jurisdiction where it is used/viewed, including but not limited to content that is misleading, libellous, defamatory, obscene, violent, hate-oriented, illegal, and/or promoting illegal goods, services or activities;
· Affiliate will not engage in and/or facilitate spamming, indiscriminate advertising or unsolicited commercial email or otherwise fail to comply with any applicable law and/or regulation that govern email marketing and/or communications. In this respect, the emails sent by Affiliate in the frame of the Campaigns CPA, CPI, CPL shall at least contain accurate sender information and subject lines, an Internet based opt-out mechanism and the Affiliate’s or its agent’s postal address;
6. INTELLECTUAL PROPERTY
PassionTeck, the Advertiser and Affiliate remain the exclusive owners of all their respective intellectual property rights (including, but not limited to, the intellectual property rights related to their website, editorial content, software, trademarks and patents).
Except as expressly set forth herein, no intellectual property right shall be transferred or licensed under these TERMS AND CONDITIONSs.
For each Campaign in which Affiliate participates, Affiliate is granted the non-exclusive and temporary right to use the Advertiser Content and redirect to the Advertiser’s website using the Affiliate Link, in accordance with the Campaign Conditions and these TERMS AND CONDITIONSs and for the sole purpose and duration of the Campaign.
Affiliate warrants that it has all the permissions and all rights to display advertising content and links on the Affiliate Medium. Affiliate is either the owner of the intellectual property rights on the Affiliate Medium, or the owner of a licence to display advertising content and links on the Affiliate Medium.
Affiliate undertakes not to copy or modify the Advertiser Content or the Affiliate Link in any manner, and especially not to remove or alter any copyright or trademark notices.
Except if otherwise requested in writing, Affiliate authorizes PassionTeck to utilise the Affiliate’s trademarks, service marks, trade names, and/or copyrighted material that Affiliate provides to PassionTeck through its Account to promote its participation in the PassionTeck Services.
Affiliate undertakes not to challenge PassionTeck's or the Advertiser’s proprietary rights, and not to adopt or use in any manner any trademarks, service marks, trade names, and/or URLs that are the same or confusingly similar to, are combined with, or in any other way infringe, those of PassionTeck or of the Advertiser.
Subject to other provisions in these TERMS AND CONDITIONS, PassionTeck shall credit the Affiliate’s PassionTeck Account for each valid Transaction as defined in the related Campaign Conditions.
To be entitled to receive payments, Affiliate shall provide PassionTeck with bank account details matching Affiliate’s identification information. In case of failure to provide such information, payments will be kept on hold until necessary information/documentation has been provided to PassionTeck.
Affiliate shall request the payment of its remuneration according to the process described in its PassionTeck Account. Affiliate is informed that any invoice or payment request that is not made in accordance with this method will not be processed.
Individual Affiliates authorize PassionTeck to issue VAT invoices on their behalf.
a. Payment via PassionTeck is performed after the creation of the invoice based on the term of payment under.
· NET30: To receive a payment Net30, you must have at least $100.00 in your account.
· NET15: To receive a payment Net15, you must have at least US$ 1.000.00 weekly in your account and contact your Manager to check the conformity of your account.
Please note that:
Payments can only be treated during working days. In addition, please allow a few days before the funds actually reach your bank account. PassionTeck might have some day of delay in payments for attests credit transfers from abroad from the advertisers on our bank.
The exchange rate used by PassionTeck is calculated every week, based on world’s currency site www.xe.com.
Affiliate may opt for a payment mode among those specified in the PassionTeck Account, and which may be changed by PassionTeck at any time without notice. All the fees and/or commissions related to the payment shall be at the exclusive charge of Affiliate.
Data recorded by PassionTeck shall constitute proof of all Transactions and shall be applicable in the contractual relationship between PassionTeck and Affiliate, to determine the amount to be paid to Affiliate.
The calculation of the amounts due to Affiliate is determined according to the provisions of the Campaign Conditions. The number or amount of valid Transactions, credits for Payouts, and debits for Charge-backs, as calculated by PassionTeck, shall be final and binding on Affiliate.
PassionTeck may, in PassionTeck's sole discretion, apply an estimated amount of Payouts:
· If Affiliate is referring end-users to Advertiser as verified by clicks through Affiliate Links to Advertiser with PassionTeck Tracking Code,
· Where there is an error in Advertiser's transmission of Tracking Code data to PassionTeck, and
· Where PassionTeck is able to utilise an historical analysis of the promotion of Advertiser by Affiliate to determine an equitable amount of estimated payments.
Affiliate will not be entitled to receive any payment from PassionTeck for:
· Transactions for which PassionTeck has not received payment from the relevant Advertiser of all amounts due to PassionTeck.
· Transactions made by Affiliate or its agent(s);
· Multiple Transactions from the same individual, entity, devices or IP address;
· Suspected or established fraud, violation of the Campaign Conditions, or violation of these TERMS AND CONDITIONS. Those amounts shall not be included in the minimum Account balance or shall be subject to Charge-backs, and in no case shall PassionTeck be held liable for the payment of these Transactions.
PassionTeck may apply a Charge-back in circumstances of:
· Product returns;
· Duplicate entry or other clear error;
· Abnormal churn rate;
· Non-bona fide Transactions;
· Non-receipt of payment from the Advertiser of payment refund request from the Advertiser;
· Affiliate’s failure to comply with Campaign Conditions; or
· Where any Payouts subsequently transpire to be in excess of the amount that was actually due to Affiliate
Charge-backs may be applied to the Affiliate’s PassionTeck Account at any time, including for previous payment cycles.
Affiliate’s PassionTeck Account may have a negative balance if it is debited with amounts equivalent to previous payments for Charge-backs, and the Account balance is not sufficient to cover the Charge-back amounts.
In case of negative balance, Affiliate must immediately remit payment to PassionTeck in an amount sufficient to bring the Account to a zero balance; otherwise a monthly interest of 1.5% interest will apply until termination of the Contract in accordance with section 8 b) hereunder.
If Affiliate’s PassionTeck Account has not been credited with a valid, compensable Transaction that has not been Charged-back during 6 (six) consecutive calendar month ("Dormant Account"), PassionTeck may either terminate the Contract upon notice in accordance with Section 8 b ii, or apply a Dormant Account fee, at the rate specified on the PassionTeck Website. Such fee shall be applied on a monthly basis, until Affiliate’s PassionTeck Account ceases to be a Dormant Account or until the Account balance reaches a zero balance. When a Dormant Account reaches a zero balance, PassionTeck may deactivate it without notice in accordance with the terms of article 8 b ii.
The Contract between PassionTeck and Affiliate shall commence upon acceptance of these TERMS AND CONDITIONS by Affiliate, subject to provision of all the requested information and documents by Affiliate and approval of Affiliate by PassionTeck, and shall continue until terminated in accordance with the terms of these TERMS AND CONDITIONSs.
Either party may terminate this Agreement at any time by upon 48 (forty-eight) business hours notice.
b. Suspension/ termination by PassionTeck
i. Violation of the TERMS AND CONDITIONS
PassionTeck reserves the right to immediately deactivate Affiliate’s Account and Services upon notice in case of suspected or established breach of any provision of section 5 or 6 of these TERMS AND CONDITIONS.
Unless Affiliate provides sufficient elements to establish the absence of breach within the imparted time indicated in the notice, PassionTeck may terminate Contract, without prejudice of PassionTeck’s right to claim adequate indemnification and remedies.
In this case:
· The litigious Transactions will not be subject to payment;
· PassionTeck may apply Chargeback of one or more payment; and
· Affiliate shall not be eligible to enter into a new Affiliation agreement with PassionTeck, and any attempt to do so shall be null and void, unless PassionTeck, at its sole discretion, determines otherwise and confirms such decision in writing.
· No indemnification can be obtained by Affiliate for the suspension of the PassionTeck Service or termination of the Contract under this article.
ii. Termination for Dormant Account
PassionTeck may terminate the Contract if Affiliate’s Account has not been logged into and/or there have been no Transactions credited to such Account for a consecutive 6-months period, or if Affiliate’s Account is a Dormant Account and has reached a negative balance by application of section 8 above.
iii. Termination for negative balance
Except if otherwise agreed, PassionTeck may terminate the Contract if Affiliate’s Account presents a negative balance for more than 90 days.
In such case, PassionTeck will send a written notice, and unless Affiliate cures the situation within the imparted deadline specified in the notice, PassionTeck will definitely close the Account, without prejudice of PassionTeck’s right to claim adequate indemnification and remedies.
c. Effects of termination
Upon termination of the Contract, for whatever reason, Affiliate shall make the payment request for all outstanding Transactions within thirty (30) days of the termination date, and PassionTeck will issue the payment for amounts effectively due by PassionTeck within a net thirty (30) days period after receipt of the related payment request.
All payments are subject to recovery for Charge-backs.
Any outstanding debit balance shall be paid by Affiliate to PassionTeck within 30 (thirty) days of termination of this Agreement of, in case of Charge-back on the last payment, within 30 (thirty days of PassionTeck’s Charge-back notification.
Upon termination of the Contract, for whatever reason, all licences granted under this Agreement will immediately terminate, and Affiliate shall immediately remove all Affiliate Links and Advertiser.
Provisions of the TERMS AND CONDITIONS that by their nature and context are intended to survive the termination (in particular the indemnification provisions) shall survive the termination of the Contract for whatever reason, to the extent that and as long as is necessary to preserve a party's rights under the Contract that accrued prior to termination.
9. GUARANTEES, LIABILITY AND INDEMNIFICATION
a. Liability of the Affiliate
Affiliate represents and warrants neither the Affiliate Medium nor the Affiliate Services will render PassionTeck liable to any proceedings whatsoever.
Affiliate shall defend, indemnify and hold PassionTeck (including PassionTeck’s officers, directors, employees, corporate affiliates, subsidiaries, agents, and subcontractors) harmless from any and all liabilities, claims and losses of any kind or nature (including but not limited to reasonable attorney’s fees and costs) arising from or in connection with any breach of any of Affiliate’s obligations and/or representations under sections 6 and 7 of these TERMS AND CONDITIONS by Affiliate, Affiliate’s officers, directors, employees, corporate affiliates, subsidiaries, agents, commercial partners and/or subcontractors.
PassionTeck shall promptly notify Affiliate of any such claim or action, and PassionTeck shall be entitled, at its own expense, and upon reasonable notice to Affiliate, to participate in the defence of such claim or action.
Participation in the defence shall not waive or reduce any of Affiliate’s obligations to indemnify or hold PassionTeck harmless. Affiliate shall not settle any claim without PassionTeck’s prior written consent. Affiliate shall indemnify for any reasonable attorneys' fees or other costs incurred by PassionTeck in investigating or enforcing this Section 9.
b. Liability of PassionTeck
PassionTeck makes its best efforts to operate the PassionTeck Platform and Services according to the current industry standards as regarding service availability and security.
PassionTeck is, under no circumstances, responsible for the practices, acts or omissions of any advertiser or affiliate, or such advertiser or affiliate’s medium.
EXCEPT IN CASE OF FRAUD OR NEGLIGENCE CAUSING DEATH OR PERSONAL INJURY, ANY OBLIGATION OR LIABILITY OF TECNOSWORLD UNDER THESE TERMS AND CONDITIONSS SHALL BE EXPRESSLY LIMITED TO DIRECT MATERIAL DAMAGES ONLY, AND CAPPED AT THE TOTAL AMOUNT OF PAYOUTS PAID TO AFFILIATE BY TECNOSWORLD UNDER THESE TERMS AND CONDITIONSS DURING THE 6 (SIX) MONTHS PRECEDING THE CLAIM.
TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, TECNOSWORLD DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ABSENCE OF VIRUSES OR HARMFUL COMPONENTS, CORRECTNESS, ACCURACY, RELIABILITY, OR INTERFERENCE WITH ENJOYMENT OF THE AFFILIATE'S INFORMATION OR MEDIUM.
NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST TECNOSWORLD MORE THAN 1 (ONE) YEAR AFTER THE TERMINATION OF THE CONTRACT.
Affiliate or PassionTeck may provide each other with information that is confidential and/or proprietary, as designated by the disclosing party or that is reasonably understood to be proprietary and/or confidential ("Confidential Information").
The receiving party agrees to make commercially reasonable efforts, and in all cases no less effort than it uses to protect its own Confidential Information, to ensure the protection and maintain the confidentiality of the Confidential Information.
Confidential Information shall not include information:
· That is or becomes part of the public domain through no act or omission of the receiving party;
· That is lawfully received by the receiving party from a third party without restriction on use or disclosure and without breach of these TERMS AND CONDITIONS or any other agreement, or
· That the receiving party had in its possession prior to the disclosure by the other party.
Upon termination of the Contract, Affiliate must, upon PassionTeck’s request, destroy or return to PassionTeck any Confidential Information provided by PassionTeck to Affiliate under the Contract.
Affiliate agrees that PassionTeck may provide Affiliate’s identification and contact details, as well as any and all end-user, Transaction and/or Tracking Code data, traffic sources and referring urls to the Advertiser to which Affiliate referred such end-user, and to any competent regulatory, legislative and judicial bodies.
PassionTeck reserves the right to utilise Tracking Code data provided to it, which may include: information about Affiliate’s performance statistics, to analyse the PassionTeck Service trends, monitor the PassionTeck Service efficiency, maintain the integrity of the Tracking Code, promote PassionTeck Service capabilities and efficiencies, and promote Affiliate and its web performance to Advertisers.
Affiliate agrees that PassionTeck may identify it in client lists and may use Affiliate’s name and/or logo solely for such purpose in its marketing materials. Any other uses of Affiliate’s name and/or logo not otherwise described or contemplated herein shall require Affiliate’s prior written consent.
Notices: Any notice or other communication under this Agreement shall be in writing and shall be considered given when sent by email.