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.
1.1 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.
1.3 The Affiliate shall have full responsibility for the use of its account. Consequently, the Affiliate is responsible for the proper custody and confidentiality of the Username and/or passwords that allow its access to their account and undertake not to transfer its use to third parties, whether temporary or permanent, nor to allow access to third parties.
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.
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.
3.1 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.
4.1 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.
4.2 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 the Commissions prior to receipt of payment from the Client, but in no event will GASMOBI be obligated to do so.
4.3 A threshold of 200 USD must be reached for any affiliate to get paid.
4.4 Commissions due and payable by GASMOBI to an Affiliate will not accrue interest.
4.5 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.
4.6 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, all Commission may be then deemed as void and written off the balance, as well as the account may be terminated.
5.1 The Affiliate guarantees that its data will be accurate, current and truthful. GASMOBI cannot guarantee the identity of Affiliate and is not responsible for the actions of the Affiliate due to improper or unauthorised use by third parties.
5.2 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.
5.3 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.
6.1 GASMOBI shall require Affiliates, before proceeding to contract:
7.1 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.
7.2 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.
7.3 For the purposes of this Agreement, fraudulent activity includes but is in no way limited to:
7.5 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.
8.1 The Affiliate represents and warrants that:
8.2 The Affiliate covenants and agrees that:
9.1 GASMOBI will promptly notify the Affiliate of any claim, action or process through the data they themselves have provided at the time of registration for the services offered in the Program Site.
9.2 In this sense, 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).
10.1 GASMOBI disclaims all warranties, conditions, representations, indemnities and guarantees with respect to any matter that is attributed but not corresponds to GASMOBI, whether express or implied (including without limitation any warranty of profitability, satisfactory quality, merchantability, fitness for any particular purpose, title and non-infringement).
10.2 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.
10.3 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.
10.4 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.
11.1 The Program Site including, but not limited to, its programming, editing, compilation and other elements necessary for its operation, designs, logos, texts and/or graphics are the property of GASMOBI. The content of the marketing materials, (tracking links, banners etc.) is property of GASMOBI.
11.2 The Affiliate acknowledges that the any fraudulent use or transfer of the marketing materials constitutes an infringement of the intellectual property rights of GASMOBI, and consequently undertake not to carry out any of the aforementioned actions.
11.3 Any use of such content not previously authorised by GASMOBI will be considered a serious breach of intellectual property rights and will give rise to the legally established responsibilities, including the right to report it to the relevant authorities.
11.4 The designs, logos, texts and/or graphics not belonging to GASMOBI, and which may appear on the website belong to their respective owners, who are themselves responsible for any possible controversy that may arise in relation to them.
12.1 GASMOBI respects the privacy of its Affiliates and will ensure that personal data is processed in accordance with current legislation.
12.2 GASMOBI guarantees the security and confidentiality of the personal data provided by the Affiliates in compliance with the provisions of Regulation 2016/679 of 27 April 2016 on the protection of individuals with regard to the processing of personal data and the free movement of such data (hereinafter "GDPR") and other applicable privacy legislation.
12.3 In this regard, the Affiliates are informed that, with regard to privacy and the protection of their personal data, they may exercise the following rights:
12.4 GASMOBI informs the Affiliate that they can exercise their rights of access, rectification, erasure, opposition, limitation of processing, portability, and not to be subject to automated individual decisions based solely on automated processing, including profiling, which produces legal effects concerning him or her or similarly significantly affects him or her by sending an e-mail to info@gasmobi.com.
13.1 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.
13.2 The agreement shall be entered for an indefinite term, unless terminated by either party.
14.1 GASMOBI shall not be liable for cases of force majeure, understood as the failure, suspension or interruption of the services or use of the Program Site, because of blockage of the Internet network, actions or omissions of third parties, or any other causes or circumstances beyond the control of GASMOBI that prevent the normal use of the Program Site.
15.1 The Program Site may contain hyperlinks that allow the Affiliate to access third-party platforms or websites. GASMOBI assumes no responsibility for the content, information or services that may appear on these platforms, which are offered exclusively for information purposes by GASMOBI, and in no case imply any relationship, acceptance, or endorsement between GASMOBI and the persons or entities holding such content or the owners of the sites where they are located.
16.1 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.
16.2 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.
16.3 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.
16.4 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.
16.5 This Agreement will inure to the benefit of and be binding upon the respective successors, heirs and assigns of both GASMOBI and the Affiliate.
16.6 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.
16.7 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.
16.8 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.
17.1 For the resolution of any discrepancy, question or claim arising directly or indirectly from the interpretation or execution of these Terms and Conditions, the parties acknowledge that Spanish law must be applicable and waive any jurisdiction that may correspond to them, submitting to the jurisdiction of the Courts and Tribunals of the city of Madrid.