Modern Cat, Inc. Affiliate Program Terms and Conditions
Please read very carefully these terms and conditions and the FAQ before registering for Modern Cat’s Online Affiliate Program. Participation in Modern Cat’s Online Affiliate Program indicates that you accept these Terms and Conditions. If you do not accept these Terms and Conditions, please do not register for or participate in Modern Cat’s Online Affiliate Program.
Introduction. This agreement ("Agreement") between You and Modern Cat Inc. ("Modern Cat") consists of the Modern Cat Online Affiliate Program (the "Program") Standard Terms and Conditions ("Terms and Conditions"). A description of the Program, as generally offered by Modern Cat, is available at the Online Affiliate Program’s Frequently Asked Questions ("FAQ") URL, located at http://www.moderncat.com/affiliate-faq, or such other URL as Modern Cat may provide from time to time. "You" or "Publisher" means any entity identified in an enrollment form submitted by the same or affiliated persons, and/or any agency or network acting on its (or their) behalf, which shall also be bound by the terms of this Agreement.
- Program Participation. Participation in the Program is subject to Modern Cat’s prior approval. Modern Cat reserves the right to refuse participation to any applicant or participant at any time in its sole discretion. By enrolling in the Program, You represent, if you are a natural person, that You are at least 18 years of age and agree, whether or not You are a natural person, that You may serve Modern Cat provided advertisements, links, and banners (collectively, "Ads"), in connection with the Web site(s), media player(s), video content and/or mobile content that You designate, or such other properties expressly authorized in writing by Modern Cat (including by electronic mail) (such other properties, “Other Properties”), and the Atom, RSS, or other feeds distributed through such Web site(s), media player(s), video content, mobile content and/or Other Properties (each such Web site, media player, video content, mobile content, Other Property or feed, a "Property"). For the avoidance of doubt, any reference in this Agreement to an individual “Web page”, “Web site”, “Web site page” or the like that is part of the Property will also mean feeds and media players distributed through such Web site.
- Parties' Responsibilities. You are solely responsible for the Property(ies), including all content and materials, maintenance and operation thereof, the proper implementation of Modern Cat's specifications, and adherence to the terms of this Agreement. ModernCat reserves the right to investigate, at its own discretion, any activity that may violate this Agreement or any engagement in any activity prohibited by this Agreement. Modern Cat is not responsible for anything related to Your Property(ies), including without limitation, the receipt of queries from end users of Your Property(ies) or the transmission of data between Your Property(ies) and Modern Cat
Prohibited Uses. You shall not:
You acknowledge that any attempted participation or violation of any of the foregoing is a material breach of this Agreement and that we may pursue any and all applicable legal and equitable remedies against You, including an immediate suspension of Your account or termination of this Agreement, and the pursuit of all available civil or criminal remedies. purchase search engine keywords or domain names that use Modern Cat's trademark "Modern Cat" and/or variations and misspellings thereof. You shall not purchase or register keywords, Pay Per Click advertising, AdWords, search terms, domain names, or other identifying terms that include the word "MODERNCAT" or certain variations and misspellings thereof for use in any search engine, portal, sponsored advertising service or other search or referral service. Specifically, this policy prohibits You from:
- Bidding on Modern Cat's trademark, "Modern Cat", and any keyword string that includes this term. For example, "Modern Cat subscriptions", "Modern Cat apparel", "Modern Cat magazines", "Modern Cat t-shirts", etc. • Bidding on variations of Modern Cat's trademark: for example “Modern Cat", "Modern Cat.com", www.moderncat.com", "modern-cat", "modern cat", www.moderncat", "ww.moderncat.com", "modern-cat.com", "www,moderncat.com", "modern.cat", "wwwmodern.cat.com", "moderdnog", etc.
- Purchasing domain names based on Modern Cat's trademarks or variations of Modern Cat's trademark: for example "moderncaaaat.com", "modderncat.com", "Modern Catt.com", "Modern Catproducts.com", etc.
- Purchasing Pay Per Click advertising containing Modern Cat's trademarks or variations of Modern Cat's trademark: for example "modernnnncat.com", "mooooderncat.com", "moderncatt.com", "moderncatproducts.com", etc.
- Withhold all compensation otherwise payable to You beginning with the date on which You purchased the prohibited trademarked terms;
- Remove You from the Modern Cat Affiliate Program permanently; and/or Contact the search engine in which your ad was found to ask that these ads be removed immediately and permanently.
- Display any Ad(s), on any Web page or any Web site that contains any pornographic, hate-related, violent, sexually explicit, illegal content, or advocates or promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation or age; display any Ad(s), on any Web Page or any Web site that advocates or promotes puppy mills or the inhumane treatment of cats or other animals; directly or indirectly access, launch, and/or activate Ads, through or from, or otherwise incorporate the Ads, Links, Referral Buttons in, any software application, Website, or other means other than Your Property(ies), and then only to the extent expressly permitted by this Agreement; disseminate malware; create a new account to use the Program after Modern Cat has terminated this Agreement with You as a result of your breach of this Agreement; or engage in any action or practice that reflects poorly on Modern Cat or otherwise disparages or devalues Modern Cat’s reputation or goodwill
- Confidentiality. You agree not to disclose Modern Cat Confidential Information without Modern Cat 's prior written consent. "Modern Cat Confidential Information" includes without limitation: (a) all Modern Cat software, technology, programming, specifications, materials, guidelines and documentation relating to the Program; (b) Conversion rates or other statistics relating to Property performance in the Program provided to You by Modern Cat (Conversion is defined as a bona-fide subscription sale on Modern Cat ’s website resulting from a visitor from Your Property clicking on a Modern Cat Ad and completing a subscription purchase); and (c) any other information designated in writing by Modern Cat as "Confidential" or an equivalent designation. However, You may accurately disclose the amount of Modern Cat ’s gross payments to You pursuant to the Program. Modern Cat Confidential Information does not include information that has become publicly known through no breach by You or Modern Cat, or information that has been (i) independently developed without access to Modern Cat Confidential Information, as evidenced in writing; (ii) rightfully received by You from a third party; or (iii) required to be disclosed by law or by a governmental authority.
- No Guarantee. Modern Cat makes no guarantee regarding the number of Conversions or amount of any payment to be made to You under this Agreement. In addition, for the avoidance of doubt, Modern Cat does not guarantee the Program will be operable at all times or during any down time (i) caused by outages to any public Internet backbones, networks or servers, (ii) caused by any failures of Your equipment, systems or local access services, (iii) for previously scheduled maintenance or (iv) relating to events beyond Modern Cat’s (or its wholly owned subsidiaries’) control such as strikes, riots, insurrection, fires, floods, explosions, war, governmental action, labor conditions, earthquakes, natural disasters, or interruptions in Internet services to an area where Modern Cat (or its wholly owned subsidiaries) or Your servers are located or co-located.
- No Warranty. Modern Cat makes no warranty, express or implied, including without limitation with respect to advertising, and other services, and expressly disclaims the warranties or conditions of noninfringement, merchantability, and fitness for any particular purpose. To the extent ads are based on or displayed in connection with non-Modern Cat content, Modern Cat shall not have any liability in connection with the display of such ads.
- Limitations of Liability; Force Majeure. Except for any indemnification and confidentiality obligations hereunder or your breach of any intellectual property rights and/or proprietary interests relating to the program, (i) in no event shall either party be liable under this agreement for any consequential, special, indirect, exemplary, or punitive damages whether in contract, tort or any other legal theory, even if such party has been advised of the possibility of such damages and notwithstanding any failure of essential purpose of any limited remedy and (ii) Modern Cat's aggregate liability to Publisher under this agreement for any claim is limited to the net amount paid by Modern Cat to Publisher during the three month period immediately preceding the date of the claim. Each party acknowledges that the other party has entered into this Agreement relying on the limitations of liability stated herein and that those limitations are an essential basis of the bargain between the parties. Without limiting the foregoing and except for payment obligations, neither party shall have any liability for any failure or delay resulting from any condition beyond the reasonable control of such party, including but not limited to governmental action or acts of terrorism, earthquake or other acts of God, labor conditions, and power failures.
- Payment. You shall receive a 50% commission payment for each valid visitor click on an Ad from your site that results in a Conversion, i.e., said visitor completing a paid subscription transaction on Modern Cat’s website. Only subscriptions promoted on Modern Cat’s site are eligible for a 50% commission payment (i.e., special offers promoted externally do not apply). Modern Cat will maintain a 30 day cookie on its site, meaning that if a visitor clicks on an Ad from Your site, you are credited with the sale as long as the visitor completes a bona fide paid subscription sale on Modern Cat’s site within 30 days. Unless otherwise agreed to by the parties in writing (including by electronic mail), payments to You shall be sent by Modern Cat within approximately thirty (30) days after the end of each calendar month that Ads are running on Your Property if Your earned balance is $50 or more. In the event the Agreement is terminated, Modern Cat shall pay Your earned balance to You within approximately ninety (90) days after the end of the calendar month in which the Agreement is terminated by You (following Modern Cat's receipt of Your written request, including by email, to terminate this Agreement) or by Modern Cat. In no event, however, shall Modern Cat make payments for any earned balance less than $10. Notwithstanding the foregoing, Modern Cat shall not be liable for any payment as a result of any breach of this Agreement by You for any applicable pay period. Modern Cat reserves the right to withhold payment due to any breach of this Agreement by You, pending Modern Cat's reasonable investigation of any of the foregoing or any breach of this Agreement by You. To ensure proper payment, You are solely responsible for providing and maintaining accurate address and other contact information as well as payment information associated with Your account. You agree to pay all applicable taxes or charges imposed by any government entity in connection with Your participation in the Program. Modern Cat may change its pricing and/or payment structure at any time. If You dispute any payment made under the Program, You must notify Modern Cat in writing within thirty (30) days of any such payment; failure to so notify Modern Cat shall result in the waiver by You of any claim relating to any such disputed payment. Payment shall be calculated solely based on records maintained by Modern Cat. No other measurements or statistics of any kind shall be accepted by Modern Cat or have any effect under this Agreement. The payments made under this Agreement are for use by You only and may not be transferred or in any manner passed on to any third party (i.e., distributed to Properties managed by You that require separate payments) unless expressly authorized in writing by Modern Cat(including by electronic mail). From time to time Modern Cat may be holding funds, payments and other amounts due to You in connection with the Affiliate Program. You acknowledge and agree that Modern Cat may, without further notice to You, contribute to a charitable organization selected by Modern Catall funds, payments and other amounts related to the Affiliate Program that are held by Modern Cat and that are due to you (if any), but which Modern Cat is unable to pay or deliver to You because Your account is Inactive (as defined below). “Inactive” means that, based on Modern Cat’s records: (a) for a period of one (1) year or more You have not logged into your account or accepted funds, payments or other amounts that Modern Cat has attempted to pay or deliver to You, and (b) Modern Cat has been unable to reach You, or has not received adequate payment instructions from You, after contacting You at the address shown in Modern Cat’s records. Modern Cat may set-off any monies otherwise payable by you to Modern Cat against any monies payable by Modern Cat to you.
- Publicity. You agree that Modern Cat may use Your name and logo in presentations, marketing materials, customer lists, financial reports and Web site listings of customers. If You wish to use Modern Cat's trade names, trademarks, service marks, logos, domain names, and other distinctive brand features, You may do so, so long as such use is in compliance with this Agreement.
- Representations and Warranties. You represent and warrant that (a) all of the information provided by You to Modern Cat to enroll in the Program is correct and current; (b) You are the owner of each Property or You are legally authorized to act on behalf of the owner of such Property(ies) for the purposes of this Agreement and the Program; (c) You have all necessary right, power, and authority to enter into this Agreement and to perform the acts required of You hereunder; and (d) You have complied and will continue to comply with all applicable laws, statutes, ordinances, and regulations (including without limitation the CAN-SPAM Act of 2003 and any relevant data protection or privacy laws) in Your performance of any acts hereunder. In addition, to the extent that Your Site is a media player (1) You represent and warrant that You have a valid license to use and distribute such media player (including all content therein, including without limitation any Ads) for the purposes of this Agreement and the Program; and (2) You shall ensure that any media player(s) that constitute the Site shall comply with the terms and conditions set forth herein. You further represent and warrant that each Property and any material displayed therein: (i) comply with all applicable laws, statutes, ordinances, and regulations; (ii) do not breach and have not breached any duty toward or rights of any person or entity including, without limitation, rights of intellectual property, publicity or privacy, or rights or duties under consumer protection, product liability, tort, or contract theories; and (iii) are not pornographic, hate-related or otherwise violent in content.
- Your Obligation to Indemnify. You agree to indemnify, defend and hold Modern Cat, its agents, affiliates, subsidiaries, directors, officers, shareholders, employees, and applicable third parties (e.g. relevant advertisers, syndication partners, licensors, licensees, consultants and contractors) (collectively "Indemnified Person(s)") harmless from and against any and all third party claims, liability, loss, and expense (including damage awards, settlement amounts, and reasonable legal fees), brought against any Indemnified Person(s), arising out of, related to or which may arise from Your use of the Program, the Property(ies), and/or Your breach of any term of this Agreement.
- Modern Cat Rights. You acknowledge that Modern Cat owns all right, title and interest, including without limitation, all Intellectual Property Rights (as defined below), in and to the Program (including Modern Cat's ad serving technology, and Brand Features, including implied licenses, and excluding items licensed by Modern Cat from third parties and excluding any third party media player that may comprise the Property), and that You will not acquire any right, title, or interest in or to the Program except as expressly set forth in this Agreement. You will not modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from any Modern Cat services, software, or documentation, or create or attempt to create a substitute or similar service or product through use of or access to the Program or proprietary information related thereto. You will not remove, obscure, or alter Modern Cat's copyright notice, Brand Features, or other proprietary rights notices affixed to or contained within any Modern Cat services, software, or documentation (including without limitation the display of Modern Cat’s Brand Features with Ads,). "Intellectual Property Rights" means any and all rights existing from time to time under patent law, copyright law, semiconductor chip protection law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights, as well as, any and all applications, renewals, extensions, restorations and re-instatements thereof, now or hereafter in force and effect worldwide.
- Miscellaneous. This Agreement shall be governed by the laws of the Province of British Columbia. Any dispute or claim arising out of or in connection with this Agreement shall be adjudicated in Vancouver, British Columbia. The parties specifically exclude from application to the Agreement the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. Any modifications to this Agreement must be made in writing executed by both parties, by Your online acceptance of updated terms, or after Your continued participation in the Program after such terms have been updated by Modern Cat. The failure to require performance of any provision shall not affect a party's right to require performance at any time thereafter, nor shall a waiver of any breach or default of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself. If any provision herein is held unenforceable, then such provision will be modified to reflect the parties' intention, and the remaining provisions of this Agreement will remain in full force and effect. You may not resell, assign, or transfer any of Your rights hereunder. Any such attempt may result in termination of this Agreement, without liability to Modern Cat. Notwithstanding the foregoing, Modern Cat may assign this Agreement to any affiliate at any time without notice. The relationship between Modern Cat and You is not one of a joint venture or legal partnership relationship, but is one of independent contractors.
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