Terms & Conditions

 

These Terms and Conditions (the “Agreement”) govern an individual’s participation as a member (the “Affiliate”) of the ROI PERFORMANCE MEDIA S.L Affiliate Network (the “Program”) also known as GASMOBI.

 

TO ACCEPT THESE TERMS AND CONDITIONS AND CREATE AN AFFILIATE ACCOUNT, AN INDIVIDUAL MUST BE AN ADULT OF LEGAL AGE OF MAJORITY IN THE COUNTRY IN WHICH THE ACCOUNT IS REGISTERED. THE INDIVIDUAL WHO PROVIDES INFORMATION PURSUANT TO THE PROGRAM AND ACCEPTS THIS AGREEMENT HAS FULL LAWFUL POWER AND AUTHORITY TO ENTER INTO AND CARRY OUT THE TERMS OF THIS AGREEMENT, AND IS LEGALLY AND FINANCIALLY RESPONSIBLE FOR ALL ACTIONS ON THE ACCOUNT, INCLUDING THE ACTIONS OF CHILDREN AND ANYONE ELSE WITH ACCESS TO IT.

  1. Affiliate Program

1.1 GASMOBI will permit the Affiliate to participate in the Program, subject to compliance with the terms and conditions in this Agreement and in any policies established by GASMOBI.

1.2 The Affiliate will be allowed to create only 1 (one) account by using its own identity info; any additional account must be expressly preapproved with a GASMOBI representative in writing. If at any time GASMOBI becomes aware of more than one account related to one and the same private individual or legal entity, created to deceive GASMOBI or its partners, GASMOBI may restrict, deny or terminate such accounts and/or any benefits derived from such accounts; GASMOBI may also withhold payment of any commissions and/or other fees related to this breach that may be or become due or payable to the Affiliate.

1.3 The parties expressly agree that they are independent contractors, and that this Agreement does not in any way create a partnership, nor have the parties granted to each other any right or authority to assume or create any obligation of responsibility, express or implied, on behalf of or in the name of the other, or to bind the other in any manner whatsoever.

 1.4 It is further agreed that the Affiliate has no authority to create or assume in GASMOBI's name or on its behalf any obligation, express or implied, or to act or purport to act as its agent or representative for any purpose whatsoever and the Affiliate shall not hold itself out as having any such authority.

 1.5 GASMOBI may, in its sole discretion, confirm or otherwise verify or check, the truth and accuracy of any registration information provided by Affiliate. The Affiliate hereby covenants and guarantees to provide to GASMOBI only the truthful and valid information regarding the Affiliate's identity and location; in case GASMOBI or third-party payment provider requests the Affiliate to prove its identity and location, the Affiliate shall reply within 2 (two) business days from the day of request and provide valid proof of its identity and location. If at any time GASMOBI, in its sole judgment and discretion, determines the Affiliate’s registration information to be misleading, inaccurate or untruthful, GASMOBI may restrict, deny or terminate Affiliate’s account, Affiliate’s access and use of, and/or any benefits derived from Affiliate’s participation in the Program; GASMOBI may also withhold payment of any commissions and/or other fees that may be or become due or payable to Affiliate.

 

  1. Marketing Materials

 

2.1 All marketing materials, (tracking links, banners etc.) will be posted to the Program Site.

2.2 GASMOBI grants the Affiliate a limited, non-exclusive, non-transferable right to download the marketing materials from the Program Site and to publish the same on the Affiliate’s websites and in electronic mail correspondence sent by the Affiliate, all of which must be done in accordance with this Agreement, GASMOBI Policies, as amended from time to time, and any additional terms and conditions affixed to each of the said Offers.

2.3 The Affiliate agrees not to modify, alter, misrepresent or embellish the Offer or any part of the Offer including without limitation any text or images provided by or on behalf of GASMOBI or the Client in any way, directly or indirectly, without the express prior written consent.

 

  1. Payments

 

3.1 GASMOBI will pay to the Affiliate a commission (the “Commission”), calculated in accordance with the payment terms outlined in each Offer posted by GASMOBI on the Program Site. GASMOBI applies either monthly NET 30, NET 15 or weekly payment plans at its sole discretion, unless mutually agreed otherwise. The Affiliate shall provide GASMOBI with their actual bank details.

3.2 Commissions will be paid to the Affiliate only following receipt by GASMOBI of payment from the Client in respect of such Offer published in the Program online reporting system. GASMOBI may, in its sole discretion and from time to time, elect to advance to the Affiliate part or all of the Commissions prior to receipt of payment from the Client, but in no event will GASMOBI be obligated to do so.

3.3 A threshold of 200 USD has to be reached for any affiliate to get paid.

3.4 Commissions due and payable by GASMOBI to an Affiliate will not accrue interest.

3.5 Payments to an Affiliate in accordance with this Section will be based upon the records kept by GASMOBI and reported in GASMOBI’s online reporting system and audited by the Clients, from time to time.

3.6 In case the Affiliate's account is not active for a period of 24 (twenty-four) months and the Affiliate didn’t request the payment of its Commissions within these 24 (twenty-four) months, any and all Commission may be then deemed as void and written off the balance, as well as the account may be terminated.

 

  1. Fraud

 

4.1 If GASMOBI determines, in its sole discretion, that the Affiliate has engaged in any activity that GASMOBI considers to be fraudulent and the Affiliate violates any given Offer's promotion restrictions, GASMOBI may but will not be obligated to: (i) suspend or terminate the Affiliate’s membership in the Program, without notice and (ii) release to a regulatory body or any governmental authority, information relating to the identity and location of the Affiliate if required to do so in order to comply with existing legislation.

4.2 GASMOBI may but will not be obliged to provide proof of fraudulent activity to the Affiliate, and proof of any share of traffic being fraudulent is reason enough to forfeit the whole commission that is due to the Affiliate. If an Affiliate feels GASMOBI's judgement in determining illegitimacy of its traffic to be wrong, the Affiliate shall provide proof of the opposite by sharing access to its traffic source/tracker, providing creative material used for promotion of the given campaign or any other evidence that the Affiliate hasn't been engaged in fraudulent activities. If the Affiliate fails to provide satisfactory or any kind of such proof within 7 (seven) days of its payment being put on hold, GASMOBI reserves the right to terminate its Affiliate Account and cancel payment of the applicable commissions, at its sole discretion and without any further obligations to the Affiliate.

4.3 For the purposes of this Agreement, fraudulent activity includes but is in no way limited to:

(i) activity by the Affiliate or anyone for whom in law the Affiliate is responsible which is directly or indirectly intended to inflate the Commissions payable to the Affiliate;

(ii) the generation of leads other than by a mechanism approved by GASMOBI;

(iii) activity by the Affiliate or anyone for whom in law the Affiliate is responsible which is not in accordance with the Program; and

(iv) activity which is determined by the Client, in its discretion, to be fraudulent.

4.5 GASMOBI may at any time audit Affiliate for compliance purposes. Affiliate agrees to provide GASMOBI with any reasonable information necessary to conduct an investigation into Affiliate’s compliance with law and this Agreement.

 

  1. Representations and Warranties

 

5.1 The Affiliate represents and warrants that:

(i) it has the authority and capacity to enter into and to be bound by this Agreement;

(ii) to the best of its knowledge, there are no existing, pending or threatened claims or actions pending against the Affiliate;

(iii) none of the Affiliate’s websites contain false or deceptive advertising or any machine-readable code including without limitation any virus, Trojan horse, work or other self-executing program;

(iv) it owns or has the legal right to use and distribute all content, copyrighted material, products, and services displayed on or through its website or websites and in its electronic mail; and

(v) it is not now a party to any agreement or business relationship which may conflict with this Agreement.

5.2 The Affiliate covenants and agrees that:

(i) it will, at all times, comply with all laws applicable in the jurisdiction where the Affiliate is situated and also where the Affiliate directly or indirectly conducts its business or markets an Offer;

(ii) it will not enter into any agreement or business relationship or otherwise incur any obligation which might, in the opinion of GASMOBI, conflict with this Agreement;

(iii) it will, at all times, comply with the terms of this Agreement, and GASMOBI Policies, as updated, amended and replaced by GASMOBI, from time to time, in its sole discretion;

(iv) it will not, without the express written consent of GASMOBI, use or permit any person for who it is in law responsible to use any third-party trade-names or trade-marks;

(v) it will not publish on any website or send in any electronic mail a universal resource locator or other link to any content or otherwise engage in or condone any practice, which, in the opinion of GASMOBI is deceitful, defamatory, libelous, abusive, violent, prejudicial, obscene, likely to bring the reputation or standing of GASMOBI into disrepute, or which otherwise would be illegal;

(vi) it will at all times comply with the terms and conditions of any agreement or policy established by an Offer in which the Affiliate elects to participate;

(vii) it will at all times comply with the provisions of the CAN-SPAM Act of 2003, as amended or replaced, from time to time;

(viii) it will not post any content relating to the Offer to any Usenet newsgroup, chat room, bulletin board or ‘blog’ (save and excepting a chat room, bulletin board or blog which is operated or primarily owned by the Affiliate) without the express written consent of GASMOBI;

(ix) it will be responsible for the development, operation and maintenance of its website or websites and electronic mail, including without limitation the technical operation thereof, the creation, publication and accuracy of any content published on any such website or websites or in any electronic mail;

(x) it will not attempt in any way to alter, modify, eliminate, conceal or otherwise render inoperable or ineffective any tags, source codes, links, pixels, modules or other data provided by or obtained from GASMOBI;

(xi) it will not “frame” or “mirror” any part of any pages hosted by the Client unless expressly permitted by GASMOBI and the Client;

(xii) it will not alter any website or electronic mail content provided by GASMOBI; and

(xiii) it will, at all times and from time to time provide GASMOBI with written confirmation of a valid address, telephone number, electronic mail address and such other identifying or financial information as GASMOBI may reasonably require;

(xiv) it will not, at all times, overload or overburden GASMOBI’s tracking system in any manner whatsoever, without limitation, making unreasonably frequent or multiple or heavyweight queries.

 

  1. Indemnification

 

Affiliate hereby agrees to indemnify, defend and hold harmless ROI PERFORMANCE MEDIA S.L (GASMOBI) and Clients 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 GASMOBI or Client intellectual property, or (iii) any claim related to your Media, including but not limited to, the content contained on such Media (except for the Links).

 

  1. Limitation

 

7.1 GASMOBI disclaims all warranties, conditions, representations, indemnities and guarantees with respect to any matter, whether express or implied (including without limitation any warranty of profitability, satisfactory quality, merchantability, fitness for any particular purpose, title and non-infringement).

7.2 Affiliate acknowledges and agrees that any determination by GASMOBI of whether or not given advertising materials and/or creatives are accurate, appropriate and do not violate any applicable law is based solely on the designation made to GASMOBI by the relevant Client and that GASMOBI is not responsible for any given Advertising Materials being misdesignated by the relevant Client.

7.3 Notwithstanding any other provision of this Agreement, GASMOBI additionally disclaims all obligations and liabilities on the part of GASMOBI and those for whom it is in law responsible for any damages, including, but not limited to, indirect, special, and consequential damages, attorneys’ and experts’ fees, and court costs (even if GASMOBI has been advised of the possibility of such damages, fees or costs), arising out of or in connection with this Agreement.

7.4 In no circumstance will GASMOBI be liable to the Affiliate for any consequential, indirect, special, punitive or incidental damages or lost profits of the Affiliate or the Affiliate’s successors or assigns (including without limitation claims for loss of goodwill, use of or reliance on the services provided hereunder, stoppage of other work or impairment of other assets) arising out of breach or failure of express or implied warranty, breach of contract, misrepresentation, negligence, strict liability in tort or otherwise. Without limiting the generality of the foregoing, any liability of GASMOBI shall be limited to the total amount paid to Affiliate by GASMOBI under this Agreement during the last 3 (three) billable months preceding the liability. Without limiting the foregoing, GASMOBI will not be liable for any failure or delay resulting from any governmental action, fire, flood, insurrection, earthquake, power failure, riot, explosion, embargo, strikes whether legal or illegal, labor or material shortage, transportation interruption of any kind, work slowdown, actions or inaction of Affiliate or third parties, Affiliate’s equipment or software and/or any third party equipment or any other condition affecting production or delivery in any manner beyond the control of GASMOBI.

  1. Termination

 

8.1 Either party may terminate this Agreement, at any time, on 48 (forty-eight) hours’ Notice to the other party. If GASMOBI believes the Affiliate has breached this Agreement, it reserves the right to suspend the account of the Affiliate immediately. The account can later be restored if the situation is resolved.

8.2 The agreement shall be entered for an indefinite term, unless terminated by either party.

 

  1. General

 

9.1 GASMOBI may assign this Agreement without the Affiliate’s prior consent. The Affiliate may not assign this Agreement without the express written consent of GASMOBI.

9.2 GASMOBI reserves the right to change, amend or alter this Agreement at any time, for any reason, or for no reason at all, at its sole discretion. The most recent version of this Agreement will be posted on GASMOBI website and in the respective section of the Program tracking platform. Although GASMOBI may provide notice of material changes to this Agreement to the Affiliate but it is the Affiliate’s sole responsibility to keep themselves informed of any such changes or amendments.

9.3 No term or condition of this Agreement will be deemed waived and no breach excused, unless such waiver or consent excusing the breach is in writing and signed by both parties.

9.4 In the event that any term, covenant or condition of this Agreement is declared indefinite, invalid, illegal or unenforceable by a court having jurisdiction then this Agreement with respect to the remaining terms, covenants or conditions will continue in force.

9.5 This Agreement will inure to the benefit of and be binding upon the respective successors, heirs and assigns of both GASMOBI and the Affiliate.

9.6 This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this agreement, supersedes any previous or contemporaneous representations, negotiations, understandings, and agreements, oral or written.

9.7 This Agreement shall be governed by, construed and enforced in accordance with the laws of Spain; all matters concerning the performance thereof shall be construed, interpreted, applied and governed in all respects in accordance with the laws Spain . Any dispute arising out of or in connection with this contract, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration.

9.8 GASMOBI DOES NOT GUARANTEE THAT THE AFFILIATE OR ANY THIRD PARTY WILL BE ABLE TO ACCESS GASMOBI WEBSITE AT ANY PARTICULAR TIME. GASMOBI SERVICES ARE PROVIDED ON AN “AS-IS, AS-AVAILABLE” BASIS. EXTERNAL FACTORS AND/OR FACTORS BEYOND GASMOBI CONTROL MIGHT CAUSE SERVICE DISRUPTIONS AT TIMES FOR WHICH GASMOBI MIGHT NOT HAVE ANY POWER OVER.