This Affiliate Program Operating Agreement (the "Agreement") is made and entered into by and between Zorka Mobi Ltd (or "We", "Zorka Mobi"), and a person, ("You" or "Affiliate"/ "Publisher") declaring the intention to cooperate with us an Affiliate).
The terms and conditions contained in this Agreement apply to Your participation with the affiliate program of the agency Zorka.Mobi.
Furthermore, each Offer (each proposition containing all essential conditions for placing advertising materials) may have additional terms and conditions on pages within the Affiliate Program and are incorporated as part of this Agreement.
By submitting an application or participating in an Offer, You expressly consent to all the terms and conditions of this Agreement.
“Advertiser” means any client of Zorka Mobi Ltd.
"Creative" shall mean a creative (creative) banner (graphic image) included in the advertiser's advertising material or promotional materials provided by the advertiser.
“Irregular Events” means any of the following occurrences or activities, regardless of whether or not they are carried out by, condoned by, omission, inaction or known to Publisher at whatever given point in time, including but not limited:
“Publisher” means any person who runs an advertising campaign through Zorka Mobi and has entered into an Offer.
“Insertion Order” means any purchase order entered into by Publisher or Advertiser and Zorka Mobi Ltd while running advertising campaigns.
“Intellectual Property Rights” means: any and all patents, trademarks, service marks, brand names, logos, design rights, database rights, copyright (including rights in computer software and databases), goodwill, get up, trade dress, trade, business or domain names, rights in inventions, know-how, trade secrets and confidential information, moral rights, publicity rights, performance rights, synchronization rights, mechanical rights and other intellectual property rights of a similar or corresponding character which may now or in the future subsist in any part of the world, in all cases whether or not registered or registerable including all granted applications and all applications for registration in respect of any of the same.
“Business Day” shall mean any day excluding Saturday, Sunday and state holidays on which banks are closed in the Republic of Cyprus and any other locations, where person offices are engaged in the Services under this Agreement or applicable IO (when obligations of person are considered) or in the country of registration of the person (when obligations of the person are considered).
A Party (You) who want to become an Affiliate/ Publisher (further Affiliate) shall:
- to submit an Affiliate Program application from our website.
An application shall clearly state real data and details without using any aliases or other means to mask Your true identity or contact information.
We will make commercially reasonable efforts to notify You within 2 (two) business days of receipt of an application.
Notwithstanding the foregoing, we may accept or reject Your application at sole discretion for any reason.
Publisher shall not share, lend, lease, sell or transfer their account to any third party unless prior written approval is obtained from Zorka Mobi.
We will pay Affiliate/Publisher for each Qualified Action (hereinafter the "Commission").
A "Qualified Action" means the process initiated by the 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 Zorka Mobi.
(v) is not later determined by Zorka Mobi to be fraudulent, incomplete, unqualified or a duplicate.
(vi) in the Offers, with several actions (including but not limited cost per action, cost per install) the payment shall be made by the Zorka Mobi only for those actions which are marked as billable according to the particular Offer.
Invoice for the advertising campaign shall be submitted by Affiliate/Publisher to the Zorka Mobi via the Internet (Email) not earlier to the 15 days of the month following an approved purchase.
Payment is due within 30 (thirty) calendar days from receipt by Zorka Mobi of the Publisher's invoice for the campaign if there is no objection unless otherwise indicated in the Special instruction field on the IO.
Consideration is paid in USD.
Amounts with a balance of less than 100 US dollars will roll over to the next month and should be collected to roll over monthly until 100 US dollars is reached.
100 USD – minimum payment by using ePayments; Payment via bank transfer is limited to a minimal amount of 2,000 US dollars. If the amount is less than 2000 US dollars, the Advertiser pays with PAYPAL. Payment in the amount less than 2000 US dollars by wire transfer or 500 US dollars by using ePayments is possible in case of termination of the Agreement mutually agreed by the parties or its cancellation.
Taxes, Fees. Each party is solely and separately responsible for its own taxes, fees, or other levies.
We will not be liable to pay any tax on the invoiced amount over and above the amount that is displayed on Партнера/Publisher’s invoice.
In accordance with applicable ISO standards, we will apply SWIFT payment instruction code SHA when making a payment to Affiliate/ Publisher.
If Affiliate has an outstanding balance under this Agreement or any other agreement between the Affiliate and we, whether or not related to the Affiliate Program, Affiliate agrees that we may to compensate such amounts due to Zorka Mobi Ltd from amounts payable to Affiliate under this Agreement.
We will grant Publishers a non-exclusive, non-transferable license to use the Creative solely for the purpose contemplated, specified in Insertion Order.
Publisher must not modify the Creative without obtaining Zorka.Mobi`s (Ltd) prior approval (email for approval email@example.com).
Publisher must use the Creative in strict compliance with any written instructions provided by Zorka Mobi. Written instructions may include instructions by e-mail.
Publisher may reject the Creative if deemed inappropriate.
Publisher must comply with any and all applicable rules, regulations and laws, specified or not within this Agreement, in respect to email distribution and advertising and relating thereto, including but not limited the Controlling the Assault of Non-Solicited Pornography And Marketing (CAN-SPAM) Act of 2003, signed into law by President George W. Bush on December 16, 2003.
Publisher must not:
- unless explicitly permitted by us, to publish Advertise that include the words “free”, “no cost”, “no charge”, or anything that;
- send an unsolicited e-mail that mentions Advertiser;
- use bots in Advertise, community sites, message boards, chat communities, or social networks to promote Advertiser;
- to provide an Advertise resulting from Irregular Events.
- to another Publisher’s detriment, interfere with Advertiser’s or our tracking link.
We will not pay for Advertise resulting from Irregular Events.
Ensure that all materials posted on Your Media or otherwise used in connection with the Affiliate Program (i) are not illegal, (ii) do not infringe upon the intellectual property or personal rights of any third party and (iii)do not contain or link to any material which is harmful, threatening, defamatory, obscene, sexually explicit, harassing, promotes violence, promotes discrimination (whether based on sex, religion, race, ethnicity, nationality, disability or age), promotes illegal activities (such as gambling), contains profanity or otherwise contains materials that we inform You that it considers objectionable (collectively, "Objectionable Content").
Publisher shall not make any representations, warranties or other statements concerning Zorka Mobi or any ours of respective products or services, except as expressly authorized in the relevant agreement.
You should not place ads on any online auction platform (i.e. eBay, Amazon, etc).
If Publisher fails to comply with the requirements (“Irregular Events”, geo, KPI, traffic sources, budget and as well as other requirements of the Offer) Zorka Mobi has the right to withhold the payment for such traffic.
The ad tags of Zorka Mobi won’t run at any time on illegal domains and fraud traffic (Non-human generated traffic, Bot and Malware traffic, traffic that has Adult content, Offensive Language, Illegal Drugs, Alcohol and Hate Speech, do not contain or link to any material which is harmful, threatening, defamatory, obscene, sexually explicit, harassing, promotes violence, promotes discrimination (whether based on sex, religion, race, ethnicity, nationality, disability or age). If ads of Zorka Mobi become detected on illegal domains with fraud traffic, according to fraud technology used by Zorka Mobi – Zorka Mobi will have the right to withhold the payment.
Within the scope of this contractual relationship, Publisher shall transfer inter alia the following data to Zorka Mobi for the purpose of advertisement, billing, and reporting:
In the event that any transferred data under the present clause contains information concerning the personal or material circumstances of an identified or identifiable individual (personal data), Publisher warrants that the collection, processing, and transfer of personal data protection comply with the applicable data protection law. In particular, Publisher warrants that Publisher has:
Publisher must, in particular:
Urgent stopping of placement of the Advertising material, as well as making any changes to the placement, can be made only upon a written request submitted to Zorka Mobi via email.
“Confidential information” means any information which relates to Zorka Mobi (or his customers) and/or any of its group companies’ business that is disclosed or made available (directly or indirectly) by we to Publisher, whether in oral, visual or written form (including graphic material), whether before, on or after the Start Date of this Agreement. Confidential Information includes but is not limited to:
(a) to the extent applicable: proprietary information, technical data, know-how,personally identifiable end user information,advertiser data, partner data,any other financial and statistical information, any data that is in the Affise and CRM systems, and other systems used by Zorka Mobi for interaction with Partners, Advertisers, employees of Zorka Mobi, formulae, engineering processes, strategies, photographs, technology, technical literature, research, product plans, products, services, equipment, customers, markets, source and/or object code, software, inventions, discoveries, ideas, processes, designs, drawings, specifications, product configuration information, pricing, marketing and finance documents, prototypes, samples, data sets, photographs, audio, audiovisual, graphics, text, manuals and other written materials, gameplay, mechanics, look and feel, user interface, logo, name, plot, setting and characters and equipment or other materials including information which is attributable to, or the existence of which is derived from, the Purpose; and
(b) the existence and terms of this Agreement and IO; and
(c) information otherwise reasonably expected to be treated in a confidential manner under the circumstances of disclosure under this Agreement and IO or by the nature of the information itself.
The parties shall not disclose any Confidential Information.
The receiving party shall hold all Confidential Information, except as may be authorized by the disclosing party, shall not use such Confidential Information for any purpose other than as expressly set forth in the present agreement or disclose any Confidential Information to any person, except to those of its employees and professional advisers, who need to know such information in order for the receiving party to perform its obligations.
A disclosure is not a prohibited disclosure within the meaning of the present agreement if:
- the disclosing party has expressly consented to the disclosure in writing prior to the disclosure;
- the disclosure is made to external advisors, auditors, attorneys or experts, provided that the respective receiving party is under a professional duty of confidentiality;
- the disclosure is made in order to comply with a legal requirement or with a decision made by a competent court, arbitral tribunal, or a stock exchange or supervisory authority, or some other government authority, provided that the disclosing party is made aware of the disclosure either prior thereto or as soon as possible subsequent thereto and the receiving party has made reasonable efforts to maintain the information’s confidential character.
Following termination, each party must use reasonable commercial efforts to return or destroy the other party’s Confidential Information.
Neither party shall issue a press release or general public announcement that refer to the other party, without the other party’s consent.
Publishers and Partners Zorka Mobi, if they receive any personal information, hereby guarantee compliance with INTERNATIONAL STANDARDS AND LAWS FOR THE PROTECTION OF PRIVACY AND PERSONAL INFORMATION, including, but not limited: GDPR (General Data Protection Regulation), Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of Personal Data and on the free movement of such data, and Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of Personal Data and on the free movement of data entering into force on May 25, 2018.
However, as no method of electronic storage over the Internet is 100% secure, Zorka Mobi cannot guarantee the absolute security of Your Account.
"Event of Force Majeure" means an event beyond the control of the parties, which prevents a Party from complying with any of its obligations (payment obligations will continue for the real services provided) under this Agreement, including but not limited to:
Consequences of Force Majeure Event.
Neither party shall be considered in breach of this agreement to the extent that performance of their respective obligations (excluding payment obligations) is prevented by an Event of Force Majeure that arises after the Effective Date.
The Party (the “Affected Party”) prevented from carrying out its obligations hereunder shall give notice to the other Party of an Event of Force Majeure upon it being foreseen by, or becoming known to, the Affected Party.
Irrespective of any extension of time, if an Event of Force Majeure occurs and its effect continues for a period of  days, the Chamber of Commerce and Industry the relevant State may give to the other party a notice of termination, which shall take effect  days after the giving of the notice. If at the end of the -day period, the effect of the Force Majeure continues, the Agreement shall terminate.
At the same time, one party shall pay to another party an amount calculated and certified in accordance with payments terms and conditions.
Notwithstanding anything to the contrary herein, each Party may terminate this agreement by a written notice sent to the other Party via email within 5 (five) days prior to the date of termination of this agreement.
This contract shall be governed by the law Republic of Cyprus interpreted and supplemented by the UNIDROIT Principles of International Commercial Contracts (2010).
Any disputes shall be decided in accordance with the UNIDROIT Principles of International Commercial Contracts (2010) and, with respect to issues not covered by the Principles, by the law Republic of Cyprus. Any dispute arising out of this Contract shall be submitted to and determined by State court of Cyprus.
If any provision of agreement should be held to be void, invalid or unenforceable, in whole or in part, the validity of the remaining provisions shall remain unaffected hereby. Such provision or part thereof shall be treated as severable and shall be modified so as to be enforceable to the fullest extent allowed by law and shall be replaced by a provision that comes as close as possible in terms of economic and legal effect to the replaced provision. The same shall apply to gaps (if any).
Silence on the part of one party does not in and of itself amount to acquiescence. However, reasonable inferences may be drawn from implied conduct in accordance with the applicable law, as well as the parties’ prior dealings and commercial customs and practices in general.
At any time We have the right to modify the present Agreement and the terms and conditions of the Offer made subject to the present Agreement.
The present agreement will apply to any legal successors of the parties. In case of legal succession, the parties will inform each other of that matter promptly.
The Insertion Order and the present Agreement will constitute the entire agreement of the Parties with respect to the subject matter hereof and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to the subject matter of the Insertion Order.
Exclusion of Third Party Rights. Only You, Zorka Mobi, or our files and/or specified in any Agreements or IO will have any rights (whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise) to enforce any term of this Agreement.
Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
Publisher shall indemnify to Zorka Mobi harmless from and against all claims (including reasonable attorney fees and costs) arising to any third party against Zorka Mobi Ltd due to infringement of the Publisher’s warranties and obligations under this agreement.
Publisher will be liable for any damage in this connection and the costs incurred by Zorka Mobi for legal action.
Publisher shall - upon first demand by Zorka Mobi or any third party nominated by Zorka Mobi - make whatever in-court or out-of-court declarations and provide whatever documents are required or appropriate to defend against third-party claims.
Liability. EXCEPT FOR ANY ACTS OF FRAUD, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT, IN NO EVENT WILL:
(I) ZORKA MOBI BE LIABLE TO THE OTHER FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, ANY INTERRUPTION OF BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS IO OR ANY SERVICES REGARDLESS OF THE FORM OF ACTION, WHETHER IN THE PRESENT AGREEMENT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF ZORKA MOBI HAS BEEN ADVISED OR IS OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES; AND
(II) ZORKA MOBI’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THE PRESENT AGREEMENT SHALL EXCEED 10 (TEN) % OF THE AMOUNT OF FEES PAID BY ZORKA MOBI TO PARTNER UNDER THE RELEVANT INSERTION ORDER OR RELEVANT OFFER.
MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION OF LIABILITY.
Electronic acceptance. This Agreement may be concluded in electronic form (e.g., by an electronic or digital signature or other means of demonstrating assent) and will be binding between the Parties. Both Parties agree that it will not contest the validity or enforceability of this Agreement because it was concluded in electronic form.
Both versions have the same legal effect.