Publisher Service Agreement Introduction This Publisher Service Agreement (Agreement) is made by and agreed to between Ignite Vision Limited, a Hong Kong limited company, located at Room A, 9/F., Eton Building, 288 Des Voeux Road Central, Sheung Wan, Hong Kong (CHINESEAN), and you (You). As an application service provider, CHINESEAN facilitates Performance Marketing Programs by providing affiliate network services (Service) via the internet website CHINESEAN. A Marketing Program (Program) is where a person, entity, affiliate or its agent, operating Website(s) (internet domain, or a portion of a domain) and/or other promotional methods to drive traffic to anothers Website or Website content (Publisher) may earn financial compensation (Commission) for Transactions (specific actions by Visitors as defined by the Advertiser) referred by such Publisher via an action made by a Visitor (any person or entity that is not the Publisher or the Publishers agent) through an internet connection (Link) to a Web site or Website content operated by another person or entity (Advertiser) from an Advertiser authorized promotional method used by such Publisher. The Advertiser compensates the Publisher, in accordance with this Agreement and the Program Payout specifications. 1. Participation in Programs (a) Acceptance by Advertiser: During this Agreement You may apply to Advertiser Programs for the opportunity to earn Commission by promoting Advertisers in accordance with the Advertisers Program terms and complying with this Agreement. Upon approval by the Advertiser for acceptance into its Program, You may display (and remove) Links to Advertisers Website or Website content in accordance with the Advertisers Program terms and this Agreement. An Advertisers acceptance of You extends only to the entity, or individual, that enters into this Agreement with CHINESEAN. (b) Program Terms: The details of an Advertisers Program shall be available through the Service. Transactions qualifying for Commission are defined by the Advertiser. Advertisers may change any Commission rate upon no less than 7 days written notice through the Service with effect from the 8th day (or such later date as specified by Advertiser). (c) Prohibited Uses of Links: (i) Locations: You may not place Links to an Advertisers Website or Website content in third-party newsgroups, message boards, blogs, unsolicited email and other types of spam, link farms, counters, chatrooms, or guestbooks. (ii) Non-Bona Fide Transactions: You must promote Advertisers such that You do not mislead the Visitor, and such that the Links deliver bona fide Transactions by the Visitor to Advertiser from the Link. You shall not cause any Transactions to be made that are not in good faith, including, but not limited to, using any device, program, robot, Iframes, or hidden frames. You may or may not be compensated for Transactions where You or Your agent are the Visitor. Multiple Leads from the same individual, entity or IP address may be considered non-bona fide Transactions. You shall not earn Payouts for non-bona fide Transactions. (iii) Infringement: None of Your promotional activities may infringe an Advertisers proprietary rights (including but not limited to trademark rights), CHINESEANs proprietary rights, or a third partys proprietary rights. (e) Updating Links: Upon notification You are obligated to update an Advertisers Links in order to earn Payouts. 2. Publishers Responsibilities (a) Accurate, Up-to-Date Information: You agree to provide CHINESEAN and Advertiser with accurate information about You and Your promotional methods, and to maintain up-to-date Account information (such as contact information, Web sites used, etc.). In Your Account, You must accurately, clearly and completely describe all promotional methods by selecting the appropriate descriptions and providing additional information when necessary. (b) Use of Links: You represent and warrant that all promotional means used by You will not contain objectionable content (including but not limited to content that is misleading, libelous, defamatory, obscene, violent, bigoted, hate-oriented, illegal, and/or promoting illegal goods, services or activities), and that You will not mislead others. You agree to use ethical and legal business practices and comply with the Advertisers Program terms and this Agreement. CHINESEAN must approve all of Your promotional activities and may deem Your promotional activities inappropriate and a material breach of this Agreement in CHINESEANs sole discretion. CHINESEAN reviews publisher conduct and any suspected fraudulent, abusive or otherwise illegal content or activity by You through Your promotional methods, or that is perpetrated through use of the Service, is grounds for immediate termination of this Agreement or deactivation of Your Account. (c) Personally Identifiable Information of Visitors: You represent and warrant that You will not enable the Tracking Code to collect personally identifiable information of Visitors that would allow CHINESEAN to personally identify Visitors. (d) Applicable Codes and Code Maintenance: In order for CHINESEAN to record the tracking of Visitors Transactions resulting from clicks on Links to Advertisers promoted by You, You must include and maintain a CHINESEAN Tracking Code within the Advertisers Links. All Advertiser Links and all advertisements (Ad Content) must be in a format compatible to the Service. (e) Usage and Security of Account: You shall be responsible for all usage and activity on Your account and for loss, theft or unauthorized disclosure of Your password. 3. CHINESEANs Responsibilities (a) Tracking Transactions and Payouts: CHINESEAN shall determine (where possible) actual Commission that should be credited to Your Account. CHINESEAN may, in its sole discretion, apply an estimated amount of Commission, if: (i) You are referring Visitors to Advertiser as verified by clicks through Links to Advertiser with CHINESEAN Tracking Code, (ii) where there is an error in Advertisers transmission of Tracking Code data to CHINESEAN, and (iii) where CHINESEAN is able to utilize a historical analysis of Your promotion of Advertiser to determine an equitable amount of estimated Commission. (b) Charge-backs: An Advertiser may apply, or CHINESEAN may apply, a debit to Your Account in an amount equal to a Commission previously credited to Your Account in circumstances of : (i) product returns; (ii) duplicate entry or other clear error; (iii) non-bona fide Transactions; (iv) non-receipt of payment from, or refund of payment to, the Visitor by the Advertiser; or (v) Publisher failure to comply with Advertisers Program terms or other agreement with Advertiser (Charge-back). Charge-backs may be applied to Your Account at any time, including previous payout cycles. (c) Tools: CHINESEAN shall provide You with access to tracking and reporting tools, and to support services. (d) Facilitating Payment of Payouts: Subject to other provisions in this Agreement, CHINESEAN shall credit Your Account with a Payout for each qualifying Transaction in accordance with the Advertisers Payout rate and Program terms for the relevant Transaction. Between Thursday to Saturday of each week, CHINESEAN will issue to You any positive balance in Your Account for Transactions previously reported, provided Your Account balance exceeds the required Minimum Payout Amount. CHINESEAN shall have no obligation to make payment of any Commission for which CHINESEAN has not received payment from the relevant Advertiser of all monies due to CHINESEAN (including for all Commission owed by such Advertiser to all of such Advertisers Publishers). Your recourse for any earned Commission not paid to You shall be to make a claim against the relevant Advertiser(s), and CHINESEAN disclaims any and all liability for such payment. The number or amount of Transactions, credits for Commission, and debits for Charge-backs, as calculated by CHINESEAN, shall be final and binding on You. (e) Currencies: You may elect to receive payment in any of the currencies that CHINESEAN supports with restrictions to Your location (as may be amended by CHINESEAN). All credits for Commission, and thus any change to Your Account Balance, will be calculated according to this elected currency once the Transaction and its respective Commission is being reported. Once elected, the currency should not be changed prior to mutual agreement by You and CHINESEAN. The conversion rate shall be determined and be updated according to the market rate, from time to time, and will be posted on ChineseAN Website. (f) Dormant Accounts: If Publishers Account has not been credited with a valid, compensable Transaction that has not been Charged-back during any rolling, six consecutive calendar month period (Dormant Account), CHINESEAN reserves the right to apply a dormant account fee to Publishers Account each calendar month that Publishers Account remains an open yet Dormant Account or until Your Account balance reaches a zero balance (g) Negative Accounts: You may have a negative balance if Your Account is debited amounts equivalent to previous Commission for Charge-backs and You do not have an adequate Account balance to cover the Charge-back amounts. When You have a negative balance, You must immediately remit payment to CHINESEAN in an amount sufficient to bring Your Account to a zero balance, or Your Account is subject to 1.8% interest per month, compounded monthly. 4. Proprietary Rights (a) Linking to Advertisers: For each Advertisers Program that You have been accepted to, the Advertiser is granting to You the right to display and Link to the Advertisers Web site or Web site content in accordance with the Advertisers Program terms for the limited purposes of Promoting the Advertisers Program, subject to the terms and conditions of this Agreement. Your use of the Link signifies Your agreement to refrain from copying or modifying any icons, buttons, banners, graphics files or content contained in the Link. As between CHINESEAN and Publisher, CHINESEAN owns all rights in and to all information regarding the Visitors that You refer to Advertisers through CHINESEAN. (b) CHINESEANs Use of Your Marks: You authorize CHINESEAN to utilize Your trademarks, service marks, tradenames, and/or copyrighted material that You provide to CHINESEAN through Your Account to promote Your participation in the Service. (c) Your Use of CHINESEANs Proprietary Rights: You agree that Your use of any CHINESEAN Website (such as ChineseAN) and Your use of any CHINESEAN trademarks, service marks, tradenames, and/or URLs is subject to the license and terms of use that are available from such Website (Terms of Use). You explicitly agree not to adopt or use in any manner any trademarks, service marks, tradenames, copyrighted material, and/or URLs that are the same or confusingly similar to, or are combined with, those of CHINESEAN. You acknowledge that You obtain no proprietary rights in CHINESEANs and Your Advertisers proprietary rights, and agree not to challenge such proprietary rights. 5. Confidentiality. (a) Obligations: You or CHINESEAN may provide the other with information that is confidential and proprietary to that party or a third party, as is designated by the disclosing party or that is reasonably understood to be proprietary and/or confidential (Confidential Information). The receiving party agrees to make commercially reasonable efforts, but in no case no less effort than it uses to protect its own Confidential Information, to maintain the confidentiality of and to protect any proprietary interests of the disclosing party. Confidential Information shall not include (even if designated by a party) information: (i) that is or becomes part of the public domain through no act or omission of the receiving party; (ii) that is lawfully received by the receiving party from a third party without restriction on use or disclosure and without breach of this Agreement or any other agreement without knowledge by the receiving party of any breach of fiduciary duty, or (iii) that the receiving party had in its possession prior to the date of this Agreement. Upon termination of this Agreement, You must destroy or return to CHINESEAN any Confidential Information provided by CHINESEAN to You under this Agreement. (b) Provision of Info to Advertisers/Third Parties: You agree that CHINESEAN may, but is not obligated to, provide Your email address(es) and basic Publisher Account detail (including but not limited to Your address, phone and fax number, email address, Website name, and visitor demographics) to Advertisers. CHINESEAN may provide any and all Visitor, Transaction and/or Tracking Code data to the Advertiser to which You referred such Visitor, and to any third party in CHINESEANs sole discretion, including but not limited to all regulatory, legislative and judicial bodies, and pursuant to allegations and claims of proprietary rights infringement. CHINESEAN reserves the right to be able to utilize Tracking Code data provided to it, which may include information about Your performance statistics, to analyze Service trends, monitor Service efficiencies, maintain the integrity of the tracking code, promote Service capabilities and efficiencies, and promote You and Your Web performance to Advertisers. 6. Term, Termination, Deactivation and Notices. (a) Term: This Agreement shall commence upon Your indication that You have accepted this Agreement by providing the required information and clicking through the acceptance button on the CHINESEAN.COM Website and shall continue until terminated in accordance with the terms of this Agreement. This Agreement may be terminated by either party upon 15 days notice. This Agreement may be terminated immediately upon notice for Your breach of this Agreement. Your Account may be deactivated during investigation of breach of this Agreement. If this Agreement is terminated based upon Your breach, You shall not be eligible to enter into a new click-through Publisher Service Agreement with CHINESEAN, and any attempt to do so shall be null and void. (b) Termination by Advertiser: An Advertiser may terminate You, one of Your Web sites, or Your ability to use a promotional method, from the Advertisers Program for any or no reason, upon 7 days written notice with effect from the 8th day. Additionally, Advertiser may terminate You from the Advertisers Program for breach of a third partys proprietary rights, and/or diluting, tarnishing or blurring an Advertisers trademarks, tradenames, and/or service marks, or for Your material breach of the Advertisers Program terms or of this Agreement. (c) Termination or Deactivation by CHINESEAN: CHINESEAN may terminate You, one of Your Web sites, or Your use of a promotional method, from an Advertisers Program, at any time in CHINESEANs sole discretion. Breach of any Section of this Agreement is cause for immediate termination from an Advertisers Program and/or termination of this Agreement, and may result in Chargeback of one or more Payouts. CHINESEAN may temporarily deactivate or terminate Your Account if: (i) You or Your agent are responsible for the improper functioning of Ad Content, or if You otherwise interfere with and/or fail to maintain the Tracking Code; (ii) Your Account has not been logged into and/or there have been no Transactions credited to Your Account for any 30 day period; (iii) You maintain a negative balance in Your Account; (iv) CHINESEAN determines You are diluting, tarnishing or blurring CHINESEANs proprietary rights; (v) You begin proceedings to challenge CHINESEANs proprietary rights; or (vi) a third party (including a CHINESEAN Advertiser) disputes Your right to use any Link, domain name, trademark, service mark, trade dress, or right to offer any service or good offered on Your Web site, or through any of Your promotional means. Upon termination of this Agreement, or in case of deactivation of Your Account, You shall no longer accrue Payouts in Your Account, including but not limited to subsequent sales and/or Leads for click-throughs that occurred prior to termination. (d) Termination of Programs and Offers: Programs and Offers may be discontinued at any time. (e) Notices: Except as provided elsewhere herein, both parties must send all notices via emails relating to this Agreement to: (i) for CHINESEAN, via registered mail, return receipt requested or via an internationally recognized express mail carrier to Ignite Vision Limited, Room A, 9/F., Eton Building, 288 Des Voeux Road Central, Sheung Wan, Hong Kong, Attn: ChineseAN (effective upon actual receipt); and, (ii) for You, at the email or physical address listed on Your Account (effective upon sending as long as CHINESEAN does not receive an error message regarding delivery of the email or five (5) days after mailing). (f) Post-termination: Upon termination of this Agreement, any outstanding payments shall be paid by CHINESEAN to You within 90 days of the termination date, and any outstanding debit balance shall be paid by You to CHINESEAN within 30 days of termination of this Agreement. All payments are subject to recovery for Charge-backs. Upon termination of this Agreement, any permissions granted under this Agreement will terminate, and You must immediately remove all Links to Advertiser(s). Provisions of this Agreement that by their nature and context are intended to survive the termination of this Agreement shall survive the termination of this Agreement to the extent that and as long as is necessary to preserve a partys rights under this Agreement that accrued prior to termination. 7. Representations, Warranties, Disclaimers and Limitations. (a) Business Operations: Each party will make reasonable commercial efforts to keep its Website operational during normal business hours. However, the parties agree that it is normal to have a certain amount of system downtime and agree not to hold each other or Your Advertisers liable for any of the consequences of such interruptions. CHINESEAN may modify the Service, or discontinue providing the Service, or any portion thereof, at any time. (b) Authority: Each party represents and warrants to the other party as to itself that the person executing this Agreement is authorized to do so on such partys behalf. IF YOU ARE AN INDIVIDUAL, YOU REPRESENT AND WARRANT THAT YOU WERE AT LEAST 18 YEARS OF AGE ON THE EFFECTIVE DATE OF THIS AGREEMENT. (c) Non-infringement Warranties: You represent and warrant that: (i) You have all appropriate authority to operate, and to any and all content on, Your Website(s); (ii) You have all appropriate authority in any promotional method you may choose to use; (iii) Your Website(s) and Your promotional methods do not and will not infringe a third partys, a CHINESEAN Advertisers, or CHINESEANs, proprietary rights; and (iv) You shall remain solely responsible for any and all Websites owned and/or operated by You and all of Your promotional methods. CHINESEAN may or may not review all content on Your Website or used by You in Your promotional methods. (d) Compliance with Laws: You are responsible for compliance with the requirements of all relevant legislation (including subordinate legislation and the rules of statutorily recognized regulatory authorities) in force or applicable in the Hong Kong Special Administrative Region or in any other applicable territory, and warrant that no promotion method used by You or the content of Your Website(s) will render CHINESEAN liable to any proceedings whatsoever. (e) Limitation of Liabilities: ANY OBLIGATION OR LIABILITY OF CHINESEAN UNDER THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL OF YOUR COMMISSION PAID TO YOU BY CHINESEAN UNDER THIS AGREEMENT DURING THE YEAR PRECEDING THE CLAIM. NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST THE OTHER PARTY TO THIS AGREEMENT MORE THAN ONE YEAR AFTER THE TERMINATION OF THIS AGREEMENT. YOU AGREE THAT CHINESEAN SHALL NOT BE LIABLE TO YOU, OR ANY THIRD PARTY (INCLUDING BUT NOT LIMITED TO A CLAIM BY ANOTHER PUBLISHER OR AN ADVERTISER OF THE SERVICE), FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF GOODWILL, LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR OTHER DATA, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIM. (f) Disclaimer of Warranties. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, CHINESEAN DISCLAIMS ALL WARRANTIES IMPLIED, INCLUDING, BUT NOT LIMITED TO, (A) MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, (B) THAT THERE ARE NO VIRUSES OR OTHER HARMFUL COMPONENTS, (C) THAT CHINESEANS SECURITY METHODS WILL BE SUFFICIENT, (D) REGARDING CORRECTNESS, ACCURACY, OR RELIABILITY, OR (D) AGAINST INTERFERENCE WITH ENJOYMENT OF THE PUBLISHERS INFORMATION OR WEBSITE. ALL INFORMATION AND COMPUTER PROGRAMS PROVIDED TO YOU IN THE COURSE OF THIS AGREEMENT ARE PROVIDED WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. CHINESEAN IS, UNDER NO CIRCUMSTANCES, RESPONSIBLE FOR THE PRACTICES, ACTS OR OMISSIONS OF ANY ADVERTISER OR PUBLISHER, OR SUCH ADVERTISER OR PUBLISHERS WEBSITE(S), AND/OR THE CONTENT OF AN ADVERTISERS WEBSITE OR THAT AN ADVERTISER MAKES AVAILABLE THROUGH THE SERVICE. (g) Remedies: No remedy or election shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity. (h) Benefit of the Bargain: THE PROVISIONS OF THIS SECTION 7 ARE AN ESSENTIAL ELEMENT OF THE BENEFIT OF THE BARGAIN REFLECTED IN THIS AGREEMENT. 8. Publishers Indemnification Obligations Publisher shall defend, indemnify and hold CHINESEAN and Advertisers harmless against all claims, suits, demands, damages, liabilities, losses, penalties, interest, settlements and judgments, costs and expenses (including attorneys fees) incurred, claimed or sustained by third parties, including but not limited to Advertisers, directly or indirectly as a result of (a) Publishers breach of or non-compliance with this Agreement, (b) Publishers violation of any law, or an alleged violation of law by CHINESEAN, that is a direct or indirect result of Publishers use of the Service, (c) Publishers use of the Service, (d) Publishers participation in any Program, (e) any content, goods or services offered, sold or otherwise made available by Publisher to any person, (f) Publishers acts or omissions in using, displaying or distributing any internet links obtained from the Service or elsewhere, including but not limited to Publishers use of internet links via email distribution, (g) any claim that CHINESEAN is obligated to pay tax obligations in connection with payment made to Publisher pursuant to this Agreement and/or any Advertisers Program, and (h) any violation or alleged violation by Publisher of any rights of another, including breach of a persons or entitys intellectual property rights (each (a)-(h) individually is referred to hereinafter as a Claim). Should any Claim give rise to a duty of indemnification under this Section 8, CHINESEAN shall promptly notify Publisher, and CHINESEAN shall be entitled, at its own expense, and upon reasonable notice to Publisher, to participate in the defense of such Claim. Participation in the defense shall not waive or reduce any of Publishers obligations to indemnify or hold CHINESEAN harmless. Publisher shall not settle any Claim without CHINESEANs prior written consent. Publisher also shall indemnify for any reasonable attorneys fees or other costs incurred by an indemnified party in investigating or enforcing this Section 8. In the context of this Section 8 only, the term CHINESEAN shall include officers, directors, employees, corporate affiliates, subsidiaries, agents, and subcontractors. 9. Miscellaneous (a) Relationships of Parties/Third Party Rights: The relationships of the parties to this Agreement shall be solely that of independent contractors, and nothing contained in this Agreement shall be construed otherwise. Nothing in this Agreement or in the business or dealings between the parties shall be construed to make them joint venturers or partners with each other. Neither party shall do anything to suggest to third parties that the relationship between the parties is anything other than that of independent contractor. You agree that Your consent is not necessary to modify any Advertiser Service Agreement. (b) Choice of Law: This Agreement is governed by the laws of Hong Kong. The exclusive forum for any actions related to this Agreement shall be in the court of Hong Kong. (c) Force Majeure: Neither party shall be liable by reason of any failure or delay in the performance of its obligations hereunder for any cause beyond the reasonable control of such party, including but not limited to electrical outages, failure of Internet service providers, default due to Internet disruption (including without limitation denial of service attacks), riots, insurrection, acts of terrorism, war (or similar), fires, flood, earthquakes, explosions, and other acts of God. (d) Severability/Waiver: If any provision of this Agreement is held by any court of competent jurisdiction to be illegal, null or void or against public policy, the remaining provisions of this Agreement shall remain in full force and effect. The parties shall in good faith attempt to modify any invalidated provision to carry out the stated intentions in this Agreement. The waiver of any breach of any provision under this Agreement by any party shall not be deemed to be a waiver of any preceding or subsequent breach, nor shall any waiver constitute a continuing waiver. (e) Assignment and Acknowledgement: Neither party may assign this Agreement without the prior express written permission of the other party. Notwithstanding the foregoing, Your consent shall not be required for assignment or transfer made by CHINESEAN (1) due to operation of law, or (2) to an entity that acquires substantially all of CHINESEANs stock, assets or business, or (3) to a related entity (e.g. parent or subsidiary of parent). Your use of the Service is irrefutable acknowledgement by You that You have read, understood and agreed to each and every term and provision of this Agreement. CHINESEAN may establish from time to time rules and regulations regarding use of the Service as published on the Service and incorporated herein. (f) Marketing: Publisher agrees that CHINESEAN may identify it as a CHINESEAN Publisher in client lists and may use Publishers name and/or logo solely for such purpose in its marketing materials. Any other uses of Publishers name and/or logo not otherwise described or contemplated herein shall require Publishers prior written consent. (g) Entire Agreement, Assignment and Amendment: This Agreement contains the entire understanding and agreement of the parties and there have been no promises, representations, agreements, warranties or undertakings by either of the parties, either oral or written, except as stated in this Agreement. This Agreement may only be altered, amended or modified by an instrument that is assented to by each party to this Agreement by verifiable means, including without limitation by written instrument signed by the parties or through a click through acknowledgement of assent. No interlineations to this Agreement shall be binding unless initialed by both parties. Notwithstanding the foregoing, CHINESEAN shall have the right to change, modify or amend (Change) this Agreement, in whole or in part, by posting a revised Agreement at least 14 days prior to the effective date of such Change. Your continued use of the Service after the effective date of such Change shall be deemed Your acceptance of the revised Agreement.
Posted on: Sun, 02 Nov 2014 11:56:11 +0000
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