This agreement (the “Agreement”) is made and entered into by and between Fingertip Performance Network, S.A.P.I. de C.V. (“Mobzie” or “We”), and you, the party submitting an application to become a publisher (“Publisher” or “You”). The terms and conditions contained in this Agreement apply to Publisher participation with in our website: http://www.mobzie.com (the “Publisher Program”). Each Publisher Program campaign (a “Campaign”) may be for any offering by Mobzie or a third party (each such third party referred as the “Advertiser”) and may link to a specific web site for that particular Campaign (“Program Web Site”). Furthermore, each Campaign may have additional terms and conditions on pages within the Publisher Program and are incorporated as part of this Agreement. By submitting an application or participating in a Campaign, Publisher expressly consent to all the terms and conditions of this Agreement.
You must submit a Publisher Program application from our website. You must accurately complete the application to become a Publisher (and provide us with future updates) and not use any aliases or other means to mask your true identity or contact information. After We review your application, We will notify You of your acceptance or rejection to the Publisher Program, generally within two (2) business days. We may accept or reject your application at our sole discretion for any reason. By submitting an application to Publisher Program, You agree to receive Mobzie daily newsletters, press releases and updates via emails.
Subject to our acceptance of You as a Publisher and your continued compliance with the terms and conditions of this Agreement, Mobzie agrees as follows:
We will make available to You via the Publisher Program graphic and textual links to the Program Web Site and/or other creative materials (collectively, the “Links”) which You may display on web sites owned or controlled by You, in emails sent by You and clearly identified as coming from You and in online advertisements (collectively, “Media”). The Links will serve to identify You as a member of our Publisher Program and will establish a link from your Media to the Program Web Site. We will pay a commission to Publisher for each Qualified Action (the “Commission”). A “Qualified Action” means an individual person who (i) accesses the Program Web Site via the Link, where the Link is the last link to the Program Web Site, (ii) is not a computer generated user, such as a robot, spider, computer script or other automated, artificial or fraudulent method to appear like an individual, real live person, (iii) is not using pre-populated fields (iv) completes all of the information required for such action within the time period allowed by Mobzie and (v) is not later determined by Mobzie to be fraudulent, incomplete, unqualified or a duplicate. We will pay You any Commissions earned monthly, provided that your account is currently greater than $1,000.00 USD. Accounts with a balance of less than $1,000.00 USD will roll over to the next month, and will continue to roll over monthly until $1,000.00 USD is reached. We reserve the right to charge back to your account any previously paid Qualified Actions that are later determined to have not met the requirements to be a Qualified Action and any bank commission charged when paying Publisher Commissions through wire transfers. Payment for Commissions is dependent upon Advertisers providing such funds to Mobzie, and therefore, You agree that Mobzie shall only be liable to You for Commissions to the extent that Mobzie has received such funds from the Advertisers. You hereby release Mobzie from any claim for Commissions if Mobzie has not received such funds from the Advertisers. Mobzie’s technology and systems are the official counter for determining delivery of leads and Commissions. No other measurements or statistics of any kind shall be accepted by Mobzie or have any effect under these Terms and Conditions. Publisher understands that Mobzie pays monthly. You understands that You need to raise an invoice and send it to Mobzie, and that the payment amount is calculated by Mobzie’s systems under Mexico City time zone. Furthermore You agree that You will not raise any invoices against Mobzie based on your own statistics. All tracking of Links and determinations of Qualified Actions and Commissions shall be made by Mobzie in its sole discretion. In the event that Publisher disputes in good faith any portion of an invoice, Publisher must submit that dispute to Mobzie in writing and in sufficient detail within thirty (30) days of the date on the invoice. If Publisher does not dispute the invoice as set forth herein, then Publisher agrees that it irrevocably waives any claims based upon that invoice. In the event that Publisher is also tracking Qualified Actions and Publisher claims a discrepancy, Publisher must provide Mobzie with Publisher’s reports within three (3) days after 30th day of the calendar month, and if Mobzie’s and Publisher’s reported statistics vary by more than 10% and Mobzie reasonably determines that Publisher has used generally accepted industry methods to track Qualified Actions, then Mobzie and Publisher agree to make a good faith effort to arrive at a reconciliation. If the parties are unable to arrive at a reconciliation, then Mobzie’s numbers shall govern. If Publisher has an outstanding balance due to Mobzie under this Agreement or any other agreement between the Publisher and Mobzie, whether or not related to the Publisher Program, Publisher agrees that Mobzie may offset any such amounts due to Mobzie from amounts payable to Publisher under this Agreement.
Email Campaigns. For all email campaigns, Publisher must download the “Suppression List” from the Campaigns section of Mobzie. Publisher shall filter its email list by removing any entries appearing on the Suppression List and will only send emails to the remaining addresses on its email list. Mobzie will provide an opt-out method in all Links, however, if any opt-out requests come directly to Publisher, You shall immediately forward them to Mobzie at firstname.lastname@example.org. Publisher's emails containing the Links may not include any content other than the Links, except as required by applicable law. Publisher agrees that failure to download the Suppression List and remove all emails from the database before mailing may result in Commission withholdings, removal or suspension from all or part of the Publisher Program, possible legal action and any other rights or remedies available to Mobzie pursuant to this Agreement or otherwise. Publisher further agrees that it will not mail or market to any suppression files generated through the Mobzie network, and that doing so may result in Commission withholdings, removal or suspension from the Publisher Program, possible legal action and any other rights or remedies available to Mobzie pursuant to this Agreement or otherwise.
Advertising Campaigns. No Links can appear to be associated with or be positioned on chat rooms or bulletin boards unless otherwise agreed by Mobzie in writing. Any pop-ups/unders used for the Publisher Program shall be clearly identified as Publisher served in the title bar of the window and any client-side ad serving software used by Publisher shall only have been installed on an end-user’s computer if the function of the software is clearly disclosed to end-users prior to installation, the installation is pursuant to an affirmatively accepted and plain-English end user license agreement and the software be easily removed according to generally accepted methods.
Publisher Network Campaigns. For all Publishers that maintain their own publisher networks, Publisher agrees to place the Links in its publisher network (the “Network”) for access and use by those users in Publisher’s Network (each a “Third Party Publisher”). Publisher agrees that it will expressly forbid any Third Party Publisher to modify the Links in any way. Publisher agrees to maintain its Network according to the highest industry standards. Publisher shall not permit any party to be a Third Party Publisher whose web site or business model involves content containing Objectionable Content. All Third Party Publishers must be in good standing with Publisher. Publisher must require and confirm that all Third Party Publishers affirmatively accept, through verifiable means, this Agreement prior to obtaining access to the Links. Publisher shall promptly terminate any Third Party Publisher who takes, or could reasonably be expected to take, any action that violates the terms and conditions of this Agreement. In the event that either party suspects any wrongdoing by a Third Party Publisher with respect to the Links, Publisher shall promptly disclose to Mobzie the identity and contact information for such Third Party Publisher. Publisher shall promptly remove any Third Party Publisher from the Publisher Program and terminate their access to future Campaigns of Mobzie in the Network upon written notice from Mobzie. Unless Mobzie has been provided with all truthful and complete contact information for a Third Party Publisher and such Third Party Publisher has affirmatively accepted this Agreement as recorded by Mobzie, Publisher shall remain liable for all acts or omissions of any Third Party Publisher.
Except as otherwise provided in this Agreement or with the consent of Mobzie, You agree that all information, including, without limitation, the terms of this Agreement, business and financial information, customer and vendor lists, and pricing and sales information, concerning us or any of our Publishers provided by or on behalf of any of them shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by You for any purpose other than your participation in the Publisher Program, except and solely to the extent that any such information is generally known or available to the public through a source other than You. Publisher shall not use any information obtained from the Publisher Program to develop, enhance or operate a service that competes with the Publisher Program, or assist another party to do the same.
We grant You a nonexclusive, nontransferable, revocable right to use the Links and to access our website through the Links solely in accordance with the terms of this Agreement, for the sole purpose of identifying your Media as a participant in the Publisher Program and assisting in increasing sales through the Program Web Site. You may not alter, modify, manipulate or create derivative works of the Links or any Mobzie graphics, creative, copy or other materials owned by, or licensed to, Mobzie in any way. You are only entitled to use the Links to the extent that You are a member in good standing of the Publisher Program. We may revoke your license anytime by giving You written notice. Except as expressly stated herein, nothing in this Agreement is intended to grant You any rights to any of Mobzie’s trademarks, service marks, copyrights, patents or trade secrets. You agree that Mobzie may use any suggestion, comment or recommendation You choose to provide to Mobzie without compensation. All rights not expressly granted in this Agreement are reserved by Mobzie.
This Agreement shall commence on the date of our approval of your Publisher Program application or on the date of signature of a copy of this Agreement by both Mobzie and You, whichever comes first, and shall continue thereafter until terminated as provided herein. You may terminate your participation in the Publisher Program at any time by removing all Links from your Media, deleting all copies of the Links. We may terminate your participation in one or more Campaigns or this Agreement at any time and for any reason which We deem appropriate with or without prior notice to You by disabling the Links or providing You with a written notice. Upon termination of your participation in one or more Campaigns or this Agreement for any reason, You will immediately cease all use of and delete all Links, plus all Mobzie or Advertiser intellectual property, and will cease representing yourself as a Mobzie or Advertiser publisher for such one or more Campaigns. All rights to validly accrued payments, causes of action and any provisions, which by their terms are intended to survive termination, shall survive any termination.
In addition to any other rights and remedies available to us under this Agreement Mobzie reserves the right to delete any actions submitted through your Links and withhold and freeze any unpaid Commissions or chargeback paid Commissions to your account if (i) Mobzie determines that You have violated this Agreement, (ii) Mobzie receives any complaints about your participation in the Publisher Program which Mobzie reasonably believes to violate this Agreement or (iii) any Qualified Action is later determined to have not met the requirements set forth in this Agreement or on the Publisher Program. Such withholding or freezing of Commissions, or charge backs for paid Commissions, shall be without regard as to whether or not such Commissions were earned as a result of such breach. In the event of a material breach of this Agreement, Mobzie reserves the right to disclose your identity and contact information to appropriate law enforcement or regulatory authorities or any third party that has been directly damaged by your actions.
You must strictly comply with any anti spam law or regulation applying to the Publisher Program (the “Act”). All emails sent in connection with the Publisher Program must include the appropriate party’s opt-out link. From time to time, We may request - prior to your sending emails containing linking or referencing the Publisher Program that You submit the final version of your email to Mobzie for approval by sending it to your Mobzie representative and upon receiving written approval from Mobzie of your email the email may be transmitted to third parties. It is solely your obligation to ensure that the email complies with the Act. You agree not to rely upon Mobzie’s approval of your email for compliance with the Act, or assert any claim that you are in compliance with the Act based upon Mobzie’s approval.
You are expressly prohibited from using any persons, means, devices or arrangements to commit fraud, violate any applicable law, interfere with other Publishers or falsify information in connection with referrals through the Links or the generation of Commissions or exceed your permitted access to the Publisher Program. Such acts include, but are in no way limited to, using automated means to increase the number of clicks through the Links or completion of any required information, using spyware, using stealware, cookie-stuffing and other deceptive acts or click-fraud. Mobzie shall make all determinations about fraudulent activity in its sole discretion.
You hereby represent and warrant that this Agreement constitutes your legal, valid, and binding obligation, enforceable against You in accordance with its terms and that You have the authority to enter into this Agreement. Subject to the other terms and conditions of this Agreement, Mobzie represents and warrants that it shall not knowingly violate any law, rule or regulation which is applicable to Mobzie’s own business operations or Mobzie’s proprietary products or services.
In addition to any notice permitted to be given under this Agreement, We may modify any of the terms and conditions of this Agreement at any time by providing You with a notification by email. The changes will become effective ten (10) business days after such notice. If the modifications are unacceptable to You, You may terminate this Agreement without penalty solely on the account of such termination within such ten (10) business day period. Your continued participation in this Publisher Program ten (10) business days after a change notice has been posted will constitute your acceptance of such change. In addition, Mobzie may change, suspend or discontinue any aspect of a Campaign or Link or remove, alter, or modify any tags, text, graphic or banner ad in connection with a Link. Publisher agrees to promptly implement any request from Mobzie to remove, alter or modify any Link, graphic or banner ad that is being used by Publisher as part of the Publisher Program.
You acknowledge that You have read this Agreement and agree to all its terms and conditions. You have independently evaluated the desirability of participating in the Publisher Program and each Campaign and are not relying on any representation, guarantee or statement other than as set forth in this Agreement or on the Publisher Program.
Publisher hereby agrees to indemnify, defend and hold harmless Mobzie and Advertisers and their respective subsidiaries, publishers, 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 attorney’s fees and costs) based on (i) any failure or breach of this Agreement, including any representation, warranty, covenant, restriction or obligation made by Publisher herein, (ii) any misuse by Publisher, or by a party under the reasonable control of Publisher or obtaining access through Publisher Program, of the Links, Campaigns or Mobzie or Advertiser 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). Mobzie hereby agrees to indemnify, defend and hold harmless Publisher against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorney’s fees and costs) based on a claim that Mobzie is not authorized to provide You with the Links.
The Publisher Program and Links, and the products and services provided in connection therewith, are provided to publisher "as is". Except as expressly set forth herein, Mobzie expressly disclaims all warranties, express, implied or statutory, including but not limited to the implied warranties of merchantability, fitness for a particular purpose, and noninfringement, and any warranties arising out of course of dealing, usage, or trade. Mobzie does not warrant that the Publisher Program or Links will meet Publisher’s specific requirements or that the operation of the Publisher Program or Links will be completely error- free or uninterrupted. Mobzie expressly disclaims any liability for any act or omission of an Advertiser or their products or services. Mobzie does not guarantee that Publisher will earn any specific amount of Commissions.
IN NO EVENT, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, SHALL MOBZIE, ITS SUBSIDIARIES, AFFILIATES, AGENTS, OFFICERS, DIRECTORS, EMPLOYEES, PARTNERS, OR SUPPLIERS BE LIABLE, TO YOU, FOR ANY UNAVAILABILITY OR INOPERABILITY OF THE LINKS, PROGRAM WEB SITES, TECHNICAL MALFUNCTION, COMPUTER ERROR, CORRUPTION OR LOSS OF INFORMATION, OR OTHER INJURY, DAMAGE OR DISRUPTION OF ANY KIND BEYOND THE REASONABLE CONTROL OF MOBZIE. IN NO EVENT WILL MOBZIE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PERSONAL INJURY / WRONGFUL DEATH, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS OR LOSS OF BUSINESS OPPORTUNITY, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT MOBZIE HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. MOBZIE’S CUMULATIVE LIABILITY TO PUBLISHER, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE LESSER OF 1000 US DOLLARS (USD) OR THE AGGREGATE OF THE AMOUNTS PAID TO PUBLISHER BY MOBZIE IN COMMISSIONS DURING THE THREE (3) MONTHS IMMEDIATELY PRIOR TO SUCH CLAIM.
Except as otherwise expressly set forth herein, Publisher personal information will be deemed to be confidential. With the exception of the information used in the Publisher Program and certain types of Publisher content, any non-personal information or material sent to Mobzie will generally be deemed to NOT be confidential. In any case, you understand and agree that we may disclose information about You to our affiliates, agents, officers, directors, employees, partners, or suppliers, for marketing purpose or if We have a good faith belief that We are required to do so by law or legal process, to respond to claims, or to protect the rights, property, or safety of Mobzie or others. If You have any request about the use of your personal information, you could send an email to: email@example.com to correct your information or limit it’s use.
Publisher shall be responsible for the payment of all attorney fees and expenses incurred by Mobzie to enforce the terms of this Agreement. This Agreement contains the entire agreement between Mobzie and Publisher with respect to the subject matter hereof, and supersedes all prior and/or contemporaneous agreements or understandings, written or oral. If for any reason a court of competent jurisdiction finds any provision of these Agreement, or portion thereof, to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to effect the intent of the parties as reflected by that provision, and the remainder of the Agreement shall continue in full force and effect. Any failure by Mobzie to enforce or exercise any provision of these Agreement or related right shall not constitute a waiver of that right or provision. Publisher agrees that Mobzie shall not be subject to or bound by any Publisher insertion order or online terms and conditions that amend, conflict with or supplement this Agreement, regardless of whether Mobzie “clicks through” or otherwise indicates its acceptance thereof. Publisher may not assign all or any part of this Agreement without Mobzie’s prior written consent. Mobzie may assign this Agreement at any time with notice to Publisher. This Agreement will be binding on and will inure to the benefit of the legal representatives, successors and valid assigns of the parties hereto. The provisions of Section 3, 4(b), 6, 7, 8, 12-17 and any accrued payment obligations shall survive the termination of this Agreement. Except as set forth in the “Modifications” section above, this Agreement may not be modified without the prior consent of both parties, Publisher continued participation in the Publisher Program will constitute the consent of such modification. If any provision of this Agreement is held to be void, invalid or inoperative, the remaining provisions of this Agreement shall continue in effect and the invalid portion of any provision shall be deemed modified to the least degree necessary to remedy such invalidity while retaining the original intent of the parties. Each party to this Agreement is an independent contractor in relation to the other party with respect to all matters arising under this Agreement. Nothing herein shall be deemed to establish a partnership, joint venture, association or employment relationship between the parties. No course of dealing nor any delay in exercising any rights hereunder shall operate as a waiver of any such rights. No waiver of any default or breach shall be deemed a continuing waiver or a waiver of any other breach or default.
The Publisher Program (excluding the Links) is controlled by Mobzie from its offices within the state of Nuevo Leon, Mexico. By submitting an application to Publisher Program, Publisher agree that all matters relating to the Agreement shall be governed by the laws of the State of Nuevo Leon, Mexico, without regard to the conflicts of laws principles thereof. Publisher and Mobzie also agree and hereby submit to the exclusive personal jurisdiction and venue of the Courts within the State of Nuevo Leon, Mexico, with respect to such matters.
By submitting an application to Publisher Program, Publisher affirms and acknowledges that Publisher has read this Agreement in its entirety and agrees to be bound by all of its terms and conditions. If Publisher does not wish to be bound by this Agreement, Publisher should not submit an application to Publisher Program. If an individual is accessing this Agreement on behalf of a business entity, by doing so, such individual represents that they have the legal capacity and authority to bind such business entity to this Agreement.
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