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Affiliate Program Terms and Conditions
Affiliate Program Terms and Conditions This affiliate agreement (the “Agreement”) sets out the complete terms and conditions between Carbon14 Innovations inc/ TripLogik, ("TripLogik"), and you, regarding your application to participate as an affiliate (an "Affiliate") in the TripLogik affiliate program (the “Affiliate Program”). It is important that you read and understand this Agreement. By completing an application to join the Affiliate Program you are – subject to TripLogik’s approval of your application – agreeing to the terms and conditions of this Agreement. If you do not agree to the following terms and conditions (or are not authorized to do so) you should discontinue your application. This Agreement replaces all previous terms and conditions relating to the Affiliate Program or any previous affiliate program offered by TripLogik. You agree that this Agreement supersedes all previous agreements you have had with TripLogik or any Group Company (as defined below). 1. DEFINITIONS AND INTERPRETATION 1.1) “Affiliate Payment” means any approved Revenue Payments; “Affiliate program Site” means the mTracker website referred by www.TripLogik.com ; “Application” means your application to join the Affiliate Program via the Affiliate Program Site Mal’s AItsafe mTracker; "Business Day" means any day (excluding Saturdays and Sundays) which is not an official public holiday in Canada; “Code” means the unique code that may be used by Customers when registering for an account with TripLogik which is made available to you via the Affiliate Program of the Mal’s mTracker Site; "Commencement Date" means the date on which TripLogik confirms that your application to join the Affiliate Program has been accepted; “Confidential Information” means all information in any form relating to a party (and any Group Company in the case of TripLogik) (the “Disclosing Party”) that is directly or indirectly disclosed to the other party (the “Receiving Party”), including any personal data and/or customer data, by any of the Disclosing Party’s employees, professional advisers or contractors before or after the Commencement Date; “Customers” means all persons who purchase from the TripLogik website or a Group Company for the first time either using a Code or who arrive at www.TripLogik.com or any other TripLogik site by clicking on the Links on the Internet Site; "Good Industry Practice" means the exercise of that degree of skill, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced contractor acting in good faith; "Group Company" means Carbon14 Innovations inc/ TripLogik and anybody corporate which is from time to time a holding company of that company, a subsidiary of that company or a subsidiary of a holding company of that company and shall include any company in which a Group Company has a shareholding of 50% or more; “Immediate family” means your spouse, partner, parent, child or sibling; "Internet Site" means your website or websites located at the web address(es) provided to TripLogik in your Application or subsequently changed from time to time and notified to TripLogik via the Affiliate Program Site; "IPR" means any and all patents, trademarks, service marks, rights in designs (including semi-conductor topography design rights and circuit layout rights), get-up, trade, business or domain names, goodwill associated with the foregoing, e-mail address names, copyright including rights in computer software (in both source and object code) and rights in databases (in each case whether registered or not and any applications to register and rights to apply for registration of any of the foregoing), rights in inventions and web-formatting scripts (including HTML and XML scripts), know-how, trade secrets and other intellectual property rights which may now or in the future subsist in any part of the world including all rights of reversion and the right to sue for and recover damages for past infringements; "Links" means hypertext links (either a banner or text link) downloaded from the Affiliate Program Site that link to the web page www.TripLogik.com or any other site owned or controlled by TripLogik or any Group Company; "Parties" means the parties to this Agreement; 2. GENERAL CONDITIONS By participating in the TripLogik Affiliate internet marketing program through Mal’s mTracker Inc. (the "Program"), You agree with the supplemental Program terms and conditions set forth below, established by Carbon14 Innovations inc/Triplogik ("TripLogik"). In consideration of participating in the Program, You agree to the following terms: 2.1) Spam. Under no circumstances shall You send commercial electronic mail messages as defined in the new Federal spam law, the CAN-SPAM Act of 2003 [the "Act"], with respect to TripLogik's Program. For clarification, this does not prohibit You from sending transactional or relationship messages as defined in the Act. TripLogik reserves the right to collect, withholds, or cancel any and all compensation related to the content You send via commercial electronic mail messages. 2.2) Tracking Tags. The tools, products and creative assets (collectively, "Assets") that are provided to You by TripLogik provide valuable information vital to the success of the Program, including information that helps make sure Transactions generated by You are properly attributed to You for Payout calculations. Thus, each of these Assets must be used in their intended manners as instructed by Mal’s mTracker. You agree that You will not corrupt, modify or disable the tracking functionality provided to You related to the Program. 2.3) Keywords, Pay Per Click advertising, and domain names involving TripLogik's trademark "TL1000", ‘TripLogik” and variations thereof. You shall not purchase search engine keywords or domain names that use TripLogik's trademark "TripLogik" and/or certain variations and misspellings thereof. Specifically, this policy prohibits You from: •Bidding on TripLogik's trademark, "TripLogik", and any keyword string that includes this term. For example, "TripLogik gadgets", "TripLogik apparel", "TripLogik computing", "TripLogik t-shirts", "TripLogik coupons", "TripLogik promotions", etc.; and •Bidding on variations of TripLogik's trademark: for example "Trip logik", "TripLogik.com", www.TripLogik.com", "trip-logik", "Trip Logik", www.TripLogik", "ww.TripLogik.com", "triplogik.com", "www,TripLogik.com", "trip.logik", "wwwTripLogik.com", "triplogic", etc. •Purchasing domain names based on TripLogik's trademarks or variations of TripLogik's trademark: for example "tripplogik.com", "triplogik.org", "TripLogic.com", "TripLogikproducts.com", etc. •Purchasing Pay Per Click advertising containing TripLogik's trademarks or variations of TripLogik's trademark: for example "Triplogik.com", "tripplogik.com", "TripLogikk.com", "TripLogikproducts.com", etc. 2.4) If TripLogik determines, in its sole discretion, that You have purchased or attempted to purchase "TripLogik" keywords or domain names, or one of the three cited examples above, then TripLogik may (without limiting any other remedies available to it) pursue any or all of the following actions: •Withhold all compensation otherwise payable to You beginning with the date on which You purchased the prohibited trademarked terms; •Remove You from the TripLogik affiliate Program permanently; and/or •Contact the search engine in which your ad was found to ask that these ads be removed immediately and permanently. 3. LICENSE 3.1) In consideration of you making the Links available on the Internet Site and subject to the terms and conditions of this Agreement, TripLogik will procure that you are granted a non-exclusive, non-transferable, terminable license to use the Links on the Internet Site solely for your internal business purposes and in accordance with such other limitations and restrictions as set out in this Agreement. 3.2) It is a condition of this Agreement that you will not do any of the following: (a) display the Links other than on the Internet Site; (b) display the Code in any offline media without TripLogik’s prior written approval; (c) display data from the Links via any electronically accessible medium other than the Internet Site without the express written consent of TripLogik; (d) do anything that would cause TripLogik to believe that a Customer has clicked through the Links to register for an account when that is not the case, sometimes known as ‘cookie stuffing’; (e) use the Links or Code in a way which proves or is likely to prove detrimental to TripLogik; and/or (f) use the Links or Code in any “pop-up” or “pop-under” advertising without the prior written consent of TripLogik. 4. AFFILIATE’S OBLIGATIONS 4.1) You warrant and undertake that: (a) you have full capacity and authority to enter into this Agreement and any other documents executed by you that may be associated with this Agreement; (b) you will at all times conduct yourself with all due skill, care and diligence, including Good Industry Practice, and in accordance with your own established procedures and all applicable laws, enactments, orders, regulations and other similar instruments; (c) you will not make an Application or introduce any Customers as an Affiliate if you are in the employment of TripLogik or a Group Company; (d) you will comply with TripLogik's security guidelines and requirements as may be issued by TripLogik from time to time whether in writing or otherwise; (e) all information you provided in your Application is correct and that you will notify TripLogik promptly of any changes; (f) you will promptly change the address of the Internet Site on request by TripLogik; (g) you will keep secret and not allow anyone else to use your login and password details for the Affiliate Program Site; (h) the Links will not be placed on any part of the Internet Site which may not be reached by people; (i) you will not directly or indirectly offer any potential Customer any incentive (including payment of money or other benefit) to use the Links or Code; (j) you have obtained and will maintain in force all necessary registrations, authorizations, consents and licenses to enable you to fulfill your obligations under this Agreement and that you will fully comply with all applicable laws and regulations including any advertising codes; (k) the Internet Site will not contain any material which is defamatory, violent, pornographic, unlawful, threatening, obscene or racially, ethnically, or otherwise discriminatory or in breach of any third party rights and shall not link to any such material; (l) you will not seek to challenge the validity of IPR belonging to TripLogik or any Group Company; (m) you will use all reasonable endeavors to display the Links and Code on the Internet Site without interruption for the duration of this Agreement; (n) you will ensure that all communications originating from you relating to TripLogik make it clear that such communications are sent by and on behalf of you (and not from or on behalf of TripLogik); (o) you will not edit, alter or amend any marketing, promotional and/or creative materials which have been produced by or on behalf of TripLogik; (p) you will not encourage or assist any Customers to breach any terms and conditions agreed to when opening an account with TripLogik or a Group Company; (q) You will not encourage or assist any Customers to, engage in behavior which in TripLogik’s reasonable opinion breaches the terms or abuses the spirit of a promotion, competition, tournament or offer operated by TripLogik or a Group Company; and (r) you will not register any domain names or register keywords, search terms or other identifiers for user in any search engine, portal, sponsored advertising service or other search or referral service that incorporate terms which are identical or similar to ‘TripLogik’ or any other trademarks owned by TripLogik or a Group Company and you will at all times comply with such reasonable guidelines for the use of such trademarks as may be issued from time to time. 5 You agree that: (a) neither you nor your Immediate Family may become Customers and you shall not be entitled to any payment under this Agreement in relation to such persons; (b) TripLogik may monitor the Internet Site to ensure you are complying with the terms of this Agreement and you will provide TripLogik with all data and information. Affiliates with no banners on their site will be removed from the program withing 30 days. 6. PAYMENTS IN RESPECT OF THE LINKS AND CUSTOMERS 6.1) In consideration of the continued display of the Links and Code and introducing Customers, you will be entitled to payment on the following terms. (a) The agreed percentage of Commission is set to 10% of the product sale, not including taxes shipping and handling. (b) Every transaction is verified and approved before showing up in your account. (c) Commission is paid 30 days after the trial period of the customer has ended. This means the affiliate will receive commission 60 days after the sale. (d) If a client returns a product during the trial period, no commission will be paid to the affiliate. (e) Commission is paid by check in Canadian funds. If the Affiliate prefers to get a wire transfer by PayPal, the affiliate is responsible for the transaction fees, including and not limited to, any exchange rates of currency and related fees. (f) The first Commission is paid only as the balance reaches 34$ or more. 6.2) You will be able to review your sales from the mTracker using your affiliate login. This information is for information purposes only. This information is provided by mTracker, and is not maintained by TripLogik. Provided that you have reached the threshold set out in clause 6.1f, TripLogik will, at the end of a calendar month, as defined in 6.1c, inform you of the amount of the Affiliate Payments, if any, for the preceding calendar month (the "Amount Due"). 6.3) In the event that the Amount Due for a calendar month is a negative amount, TripLogik may, but will not be obliged to, carry forward and set off such negative amount against Amounts Due for future months which would otherwise be payable to you. If the Amount Due for a particular calendar month does not exceed 20$ or the equivalent in any other currency, TripLogik will be entitled to withhold and carry forward such amount to the end of the next calendar month in which the Amount Due (including any sums carried forward in this way) exceeds 20$ or the equivalent in any other currency 6.4) All payments made to you by TripLogik under this Agreement are (a) deemed inclusive of any VAT or other tax payable; (b) will be paid in Canadian Dollars; and 6.5) In the event that a Customer: (a) has been introduced in breach of any term of this Agreement; (e) fails any identity or credit checks carried out by TripLogik or on its behalf; (g) is suspected by TripLogik of (i) acting in breach of the terms and conditions governing his/her account, and/or any marketing promotion; or (ii) any fraudulent or dishonest activity; (h) has their account closed within 25 Business Days of the account opening; or (i) becomes known to TripLogik as a person who does not properly fall within the definition of a “Customer”, being a person who had already opened an account with TripLogik or a Group Company at the time he/she opened an account by using a Code or by clicking on the Links on the Internet Site you will not be entitled to receive any Affiliate Payments in respect of such Customer. In the event that any such payment has already been made to you in respect of such Customer you will promptly repay the amount paid on receiving notice from TripLogik. TripLogik will be entitled, but not obliged, to set-off any amount owed as a result against future Affiliate Payments. 6.6) TripLogik will pay the agreed affiliate commission on customers acquired from triplogik.com affiliate program except from the countries that are listed below: England, Iran, Iraq, Israel, Ivory Coast, Lebanon, Libya, N. Korea, S. Africa, Somalia, Sudan, Turkey, Russia. 7. DISCLAIMER TripLogik makes no representation that any of its services, or those provided by any Group Company, will be uninterrupted or error free and, to the fullest extent permissible by law, it will not be liable for the consequences of any such interruptions or errors. 8. INTELLECTUAL PROPERTY RIGHTS 8.1) All IPR in any third party materials shall belong to the third party owner thereof. 8.2 Nothing in this Agreement purports to grant a license, provide any warranty or offer any indemnity in respect of any data that is not owned by TripLogik or a Group Company. In the event that you require access to any such data, you agree that you will give TripLogik an opportunity to secure rights to the same and (if it becomes necessary to do so) you will pay the costs of securing a license to the same from the relevant third party data owner or either party may terminate this Agreement immediately. 8.3 Each party shall immediately notify the other party if any claim or demand is made or action brought against it for any infringement or alleged infringement of any IPR which may affect the supply or use of the Links. 9. CONFIDENTIALITY AND ANNOUNCEMENTS 9.1) During the term of this Agreement and after termination or expiration of this Agreement, each party shall not use any Confidential Information belonging to the other party for any purpose other than in pursuance of its rights and obligations under this Agreement nor disclose any of the other party’s Confidential Information to any person except with the prior written consent of the other party and shall follow Good Industry Practice to prevent the use or disclosure of the Confidential Information. This obligation will not apply to any Confidential Information that (a) has come into the public domain other than by breach of this Agreement, or any other duty of confidence; (b) is obtained from a third party without breach of this clause or any other duty of confidence; (c) has been disclosed to a party by a third party, other than a company within its Group not in breach of any duty of confidence; (d) is trivial or obvious; (e) is required to be disclosed by law or other regulatory requirement provided notice is given to the other party prior to disclosure where legal to do so; or (f) is in the possession of the Party at the time the Confidential Information was disclosed to it by any other party or which is independently developed without reference to any Confidential Information of the other party. 9.2) Each party may disclose any Confidential Information to its directors, other officers, employees, advisers and sub-contractors and to those of any company in its Group to the extent that such disclosure is reasonably necessary in order to comply with its obligations under this Agreement and provided that they are subject to equivalent confidentiality obligations as those set out in this clause. 9.3) On termination of this Agreement each party shall (on request) deliver up to the other party or destroy all copies of Confidential Information in its possession, and (if so requested) shall use all reasonable endeavors to destroy all copies of Confidential Information stored electronically except to the extent that it is obliged to retain such information under any law, regulation or license condition applicable to that party or any company in its Group. 9.4) The parties shall together determine the content of any communications concerning the relationship between the parties. Such communications shall be issued at a time and in a manner agreed by the parties. 10. INDEMNITY You will indemnify and hold harmless TripLogik, its Group Companies and Arnold Media from and against any and all losses, demands, claims, damages, costs, expenses (including consequential losses and loss of profit, reasonable legal costs and expenses and VAT thereon if applicable) and liabilities suffered or incurred, directly or indirectly, by TripLogik or Arnold Media in consequence of any breach by you of your obligations under this Agreement. 11. LIMITATION OF LIABILITY 11.1) Save as provided by statute and to the fullest extent permitted by law, the following provisions set out the entire liability of TripLogik, its Group Companies and mTracker (including any liability for the acts and omissions of its employees, agents and sub-contractors) to you whether in contract, tort, statute, equity or otherwise: (a) you acknowledge and agree that (except as expressly provided in this Agreement) the Links, Affiliate Program Site and all TripLogik and its Group Companies products are provided "AS IS" without warranties of any kind (whether express or implied); (b) all conditions, warranties, terms and undertakings (whether express or implied), statutory or otherwise relating to the delivery, performance, quality, accuracy, uninterrupted use, fitness for purpose, occurrence or reliability of the Links or the Affiliate Program Site are hereby excluded; and (c) neither TripLogik, its Group Companies nor mTracker will be liable to you for any losses relating to your use of the Links or the Affiliate Program Site or any breach of this Agreement by TripLogik including loss of profits (whether direct or indirect), revenues, goodwill, anticipated savings, data or any type of special, indirect, consequential or economic loss (including loss or damage suffered by you as a result of an action brought by a third party) even if such loss was reasonably foreseeable or TripLogik, its Group Companies or mTracker had been advised of the possibility of you incurring such loss. 11.2) No exclusion or limitation set out in this Agreement shall apply in the case of: (a) fraud or fraudulent misrepresentation; (b) death or personal injury resulting from the negligence of any party or any of its employees, agents or sub-contractors; and/or 11.3) The time limit within which you must commence proceedings against TripLogik to recover on any claim shall be 2 years from the date you become aware or should reasonably have become aware of the relevant breach that would form the subject of the claim. 12. FORCE MAJEURE Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control, and in such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance continues for 15 Business Days, the party not affected may terminate this Agreement immediately by giving notice to other party. 13. TERM AND TERMINATION 13.1 This Agreement shall commence on the Commencement Date and, shall continue until either party serves 20 Business Days’ written notice of an intention to terminate. 13.2 TripLogik may terminate this Agreement immediately in the event that: (a) the Affiliate breaches any of the terms of this Agreement which, in the case of a breach capable of remedy, has not been remedied within five (5) Business Days of receipt of a notice from TripLogik specifying the breach and requiring its remedy; (b) the Affiliate suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due, begins negotiations for or makes any voluntary arrangement with its creditors, becomes subject to an administration order, has an administrative receiver or receivers appointed in respect of the whole or any part of its assets, goes into liquidation (voluntary or otherwise save for any voluntary liquidation entered into solely for the purposes of a bona fide reconstruction or amalgamation); (c) the Affiliate is made the subject of a bankruptcy petition or order; (d) the Affiliate ceases or threatens to cease carrying on its business; (e) the Affiliate, in TripLogik’s opinion, is in breach of the terms of any applicable advertising code of practice including the CAP code and any voluntary codes TripLogik has agreed to abide by; (f) TripLogik ceases to accept Customers from or to advertise in any jurisdiction which is targeted by the Internet Site; (g) the Affiliate is in the employment of TripLogik or any Group Company at any time after the Commencement Date; (h) fails to change the web address of the Internet Site on TripLogik’s request in accordance with clause 3.1(e); or (i) TripLogik determines that the Internet Site is generating fraudulent traffic or that the Affiliate is engaged in collusion with any other person. Collusion in this context means an attempt by an Affiliate, a group of Affiliates, or a group which includes individuals who are not Affiliates under the Affiliate Program to create fraudulent income with a coordinated effort. 13.3 Clauses 13.2(b) and (c) will apply if any event occurs, or proceeding is taken, with respect to the Affiliate in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in those clauses. 14. CONSEQUENCES OF TERMINATION 14.1) Except as set out in clause 14.3 below, termination of this Agreement shall be without prejudice to any rights or obligations which shall have accrued prior to termination. 14.2) On termination of this Agreement all licenses granted to you pursuant to this Agreement will immediately terminate. 14.3) If TripLogik terminates this Agreement under clause 13.2 or you terminate this Agreement under clause 13.1 (except when you do so following a material variation to the terms of the Agreement under clause 12.3) you will not be entitled to receive any further payments pursuant to clauses 4 and 5 following such termination. 14.4) Clauses 9, 10, 11 and 21 together with any other clauses the survival of which is necessary for the interpretation or enforcement of this Agreement will survive termination of this Agreement for whatever reason. 15. ASSIGNMENT AND SUB-CONTRACTING 15.1 You will not assign novate, declare a trust of or otherwise dispose of this Agreement, or any part thereof, without the prior written approval of TripLogik. 15.2 TripLogik may assign or sub-contract any of its rights and obligations under this Agreement to a Group Company at any time without giving notice to you. 16. ENTIRE AGREEMENT This Agreement constitutes the entire and only Agreement between the parties with regards to its subject matter and the parties confirm that they have not been induced to enter into this Agreement in reliance upon, nor has it been given, any warranty (including in particular any warranty as to merchantability, fitness for purpose or uninterrupted functionality), representation, statement, assurance, covenant, agreement, undertaking, indemnity or commitment of any nature whatsoever other than as are expressly set out in this Agreement and, to the extent that it has been, it unconditionally and irrevocably waives any claims, rights or remedies which it might otherwise have had in relation thereto. 17. NO AGENCY OR PARTNERSHIP Nothing in this Agreement and no action taken by the parties pursuant to this Agreement shall constitute, or be deemed to constitute: (a) the parties as a partnership, association, joint venture or other co-operative entity; or (b) any party the agent of another party, nor authorize any party to make or enter into any commitments for or on behalf of any other party. 18. WAIVER & VARIATIONS 18.1 No breach of any provision of this Agreement shall be waived or discharged except with the express written consent of the parties. 18.2 No failure or delay by a party to exercise any of its rights under this Agreement shall operate as a waiver thereof and no single or partial exercise of any such right shall prevent any other or further exercise of that or any other right. 18.3 TripLogik may modify all or any part of this Agreement at any time. TripLogik will give you five (5) Business Days’ notice of any such changes. If you do not agree to the changes you may serve notice to terminate this Agreement under clause 13.1 before the changes take effect and such changes will not apply for the duration of the notice period set out in clause 13.1. If you fail to terminate this Agreement and continue to participate in the Affiliate Program you will be deemed to have accepted the changes made under this clause. The latest modified date of these terms and conditions will be displayed at the bottom of this Agreement. 19. NOTICES 19.1) Notices and communications from TripLogik will be made by e-mail to the address provided by you on your application to join the Affiliate Program. 19.2) You should send all notices and communications to the following email address info@TripLogik.com or such other e-mail address as notified to you via the Affiliate Program Site from time to time. 19.3) Notices and communications will be deemed received 4 hours after being sent provided that if such notice would then be deemed to have been received outside the hours of 09:00 to 17:00 (EST time) it will be deemed to have been received at 09:00 on the next Business Day. 20. FURTHER ASSURANCE Each party shall, upon request from the other, do and execute, or procure that there shall be done and executed, all such documents, deeds, matters, acts or things as that other may at any time require to give it the full benefit of this Agreement. 21. GOVERNING LAW AND JURISDICTION 21.1) This Agreement (and any dispute, controversy, proceedings or claim of whatever nature arising out of or in any way relating to this Agreement or its formation) shall be governed by and construed in accordance with Quebec law and the parties hereby irrevocably submit to the non-exclusive jurisdiction of the courts of Quebec Canada. By clicking on “Agree” you acknowledge you have read the conditions and agree with terms.