These Affiliation Terms and Conditions (the « T&Cs ») define the conditions under which MobPartner, a French joint stock company, with its registered office located at 89-91, avenue Ledru-Rollin, 75011 Paris, France, registered under number B 484 374 533 with the Paris Registry of Commerce and Companies, provides its Affiliates with a range of technical solutions and services, enabling them to monetize their audience by promoting Mobile Campaigns via Affiliate Links and Affiliate Services.
The T&Cs constitutes the entire agreement between MobPartner and Affiliate (the “Contract”) and supersede all previous written or verbal communications or agreements.
Unless otherwise expressly agreed in writing by MobPartner, the application of any other contract or conditions (including Affiliate’s own Terms and Conditions) is expressly excluded.
Use of the MobPartner Service by Affiliate is irrefutable acknowledgement by Affiliate that it has read, understood and agreed to each and every term and provision of these T&Cs.
MobPartner shall have the right to amend, change or update the T&Cs, in whole or in part, at any time in its sole discretion. Affiliate will be notified of any changes by email or via a change notice or new agreement T&Cs posted on the MobPartner Website. The continued use of the MobPartner Platform and Services by Affiliate after the effective date of the updated T&Cs shall constitute Affiliate’s binding acceptance to such modification(s).
In these T&Cs, the words or expressions starting with a capital letter shall have the following meaning:
The affiliation to the MobPartner Platform and Services is open to legal entities and individuals aged of more than 18 (eighteen) years old with the full legal capacity to conclude contracts.
Upon the registration on the MobPartner Website, MobPartner creates a dedicated “Account” for the Affiliate.
Each Affiliate is entitled to create only 1 (one) Account, except in case of prior written approval of MobPartner. MobPartner reserves the right to deactivate duplicates Accounts without notice; such Accounts will be subject to Section 4 b below.
The creation of the Account is subject to the provision of the following identification elements by Affiliate:
MobPartner will check the information and documentation provided by Affiliate and may, in its sole discretion, invalidate the account or request additional elements from Affiliate.
If Affiliate fails to provide the requested elements within the deadline specified by MobPartner at the moment of the subscription, the Account may be deactivated at any moment upon notice. Unless Affiliate sends the requested elements within the period indicated by MobPartner in the deactivation notice, the Contract will be considered null and void and the Account invalid.
Invalid Accounts will be closed effective immediately, and all the Transactions generated from such Account, if any, will not be subject to payment.
MobPartner’s decision to invalidate an Account may not be challenged and Affiliate will not be entitled to any indemnification from MobPartner further to such invalidation.
Affiliate can have access to and manage its Account in a dedicated and secured space on the MobPartner Website. In this space Affiliate can subscribe to Mobile Campaigns, have access to reporting tools and issue its payment requests to MobPartner.
Affiliate shall be solely responsible for all usage and activity on its Account and for loss, theft or unauthorised disclosure of its password (except in case of established security breach on the MobPartner Platform).
Affiliate undertakes to provide MobPartner with prompt written notification of any known or suspected unauthorised use of its Account or any breach of the security of its Account.
Affiliate may subscribe to Mobile Campaigns for the opportunity to earn remuneration by promoting Advertisers on Affiliate Medium in accordance with the Mobile Campaign Conditions.
Participation in a Mobile Campaign implies the acceptance of the Campaign Conditions without any reserve by Affiliate and is subject to MobPartner’s prior approval.
When participating in a Mobile Campaign, Affiliate is authorized and agrees to display the related Affiliate Link, MobPartner Link and Advertiser Content on the Affiliate Medium for the duration and according to the conditions set forth in the Campaign Conditions.
Any Modification, update or termination of a Mobile Campaign will be notified to Affiliate with no less than 24 (twenty-four) business hours prior notice. Affiliate undertakes to promptly implement the notified modification, update or termination in good faith within the imparted deadline. MobPartner reserves the right to retain payments in case of failure of Affiliate to implement any notified modification, update or termination in accordance with the terms of the notification.
MobPartner reserves the right to withdraw Affiliate from any ongoing Mobile Campaign at its sole discretion with immediate effect. Affiliate will not be entitled to any indemnification for such withdrawal.
From time to time MobPartner may offer optional services and/or premium services for a fee, under the conditions specified on the MobPartner website.
MobPartner provides its Affiliates with support services available through the MobPartner support system on the website.
Affiliate undertakes to provide MobPartner with accurate information about Affiliate’s identification and Affiliate Services, including a clear and complete description of all promotional methods used, and to maintain at all times such information up-to-date in its MobPartner Account.
Affiliate will provide MobPartner with all required information or documentation relating to its identity and/or the Affiliate Services upon first request.
Affiliate represents and warrants that it will at all times comply with the T&Cs and the Mobile Campaign Conditions of all Mobile Campaigns in which the Affiliate participates.
Affiliate undertakes to participate in the Mobile Campaigns and use the Affiliate Links in a loyal and non-abusive manner.
In particular, and non-exhaustively, Affiliate undertakes:
Affiliate represents and warrants that it has all appropriate authority and licences to operate the Affiliate Medium and the Affiliate Services. Affiliate shall remain solely responsible for Affiliate Medium and Affiliate Services.
Affiliate represents and warrants that the Affiliate Medium and the Affiliate Services will at all times be compliant with all relevant laws, regulations and generally accepted standards of behaviour and public order, applicable in France or in any other relevant territory, in particular with regard to respect for privacy, collection and processing of personal data, protection of individuals and minors, the rights of third parties and unfair competition.
In particular, Affiliate represents and warrants that:
MobPartner, the Advertiser and Affiliate remain the exclusive owners of all their respective intellectual property rights (including, but not limited to, the intellectual property rights related to their website, editorial content, software, trademarks and patents).
Except as expressly set forth herein, no intellectual property right shall be transferred or licensed under these T&Cs.
For each Mobile Campaign in which Affiliate participates, Affiliate is granted the non-exclusive and temporary right to use the Advertiser Content and redirect to the Advertiser’s website using the Affiliate Link, in accordance with the Mobile Campaign Conditions and these T&Cs and for the sole purpose and duration of the Mobile Campaign.
Affiliate warrants that it has all the permissions and all rights to display advertising content and links on the Affiliate Medium. Affiliate is either the owner of the intellectual property rights on the Affiliate Medium, or the owner of a licence to display advertising content and links on the Affiliate Medium.
Affiliate undertakes not to copy or modify the Advertiser Content or the Affiliate Link in any manner, and especially not to remove or alter any copyright or trademark notices.
Except if otherwise requested in writing, Affiliate authorizes MobPartner to utilise the Affiliate’s trademarks, service marks, trade names, and/or copyrighted material that Affiliate provides to MobPartner through its Account to promote its participation in the MobPartner Services.
Affiliate undertakes not to challenge MobPartner's or the Advertiser’s proprietary rights, and not to adopt or use in any manner any trademarks, service marks, trade names, and/or URLs that are the same or confusingly similar to, are combined with, or in any other way infringe, those of MobPartner or of the Advertiser.
Subject to other provisions in these T&Cs, MobPartner shall credit the Affiliate’s MobPartner Account for each valid Transaction as defined in the related Mobile Campaign Conditions.
To be entitled to receive payments, Affiliate shall provide MobPartner with bank account details matching Affiliate’s identification information. In case of failure to provide such information, payments will be kept on hold until necessary information/documentation has been provided to MobPartner.
Affiliate shall request the payment of its remuneration according to the process described in its MobPartner Account. Affiliate is informed that any invoice or payment request that is not made in accordance with this method will not be processed.
Individual Affiliates authorize MobPartner to issue VAT invoices on their behalf upon receipt of their payment request.
Payment by MobPartner is processed within net 30 days from Affiliate’s payment request, provided that the Account presents a positive balance for Transactions reported for the previous month, and provided that the Account balance exceeds the required minimum Account balance specified in the Affiliate’s Account on the MobPartner Website.
Affiliate may elect to receive payment in the currencies that MobPartner supports, which are specified in the Affiliate’s Account on the MobPartner Website, and which may be changed by MobPartner at any time without notice. The exchange rate used by MobPartner is calculated every week, based on world’s currency site www.xe.com.
Affiliate may opt for a payment mode among those specified in the MobPartner Account, and which may be changed by MobPartner at any time without notice. All the fees and/or commissions related to the payment shall be at the exclusive charge of Affiliate.
Data recorded by MobPartner shall constitute proof of all Transactions and shall be applicable in the contractual relationship between MobPartner and Affiliate, to determine the amount to be paid to Affiliate.
The calculation of the amounts due to Affiliate is determined according to the provisions of the Mobile Campaign Conditions. The number or amount of valid Transactions, credits for Payouts, and debits for Charge-backs, as calculated by MobPartner, shall be final and binding on Affiliate.
MobPartner may, in MobPartner's sole discretion, apply an estimated amount of Payouts:
Affiliate will not be entitled to receive any payment from MobPartner for:
MobPartner may apply a Charge-back in circumstances of:
Charge-backs may be applied to the Affiliate’s MobPartner Account at any time, including for previous payment cycles.
Affiliate’s MobPartner Account may have a negative balance if it is debited with amounts equivalent to previous payments for Charge-backs, and the Account balance is not sufficient to cover the Charge-back amounts.
In case of negative balance, Affiliate must immediately remit payment to MobPartner in an amount sufficient to bring the Account to a zero balance; otherwise a monthly interest of 1.5% interest will apply until termination of the Contract in accordance with section 9 b) hereunder.
If Affiliate’s MobPartner Account has not been credited with a valid, compensable Transaction that has not been Charged-back during 6 (six) consecutive calendar month ("Dormant Account"), MobPartner may either terminate the Contract upon notice in accordance with Section 9 b ii, or apply a Dormant Account fee, at the rate specified on the MobPartner Website. Such fee shall be applied on a monthly basis, until Affiliate’s MobPartner Account ceases to be a Dormant Account or until the Account balance reaches a zero balance. When a Dormant Account reaches a zero balance, MobPartner may deactivate it without notice in accordance with the terms of article 9 b ii.
The Contract between MobPartner and Affiliate shall commence upon acceptance of these T&Cs by Affiliate, subject to provision of all the requested information and documents by Affiliate and approval of Affiliate by MobPartner, and shall continue until terminated in accordance with the terms of these T&Cs.
Either party may terminate this Agreement at any time by upon 48 (forty-eight) business hours notice.
MobPartner reserves the right to immediately deactivate Affiliate’s Account and Services upon notice in case of suspected or established breach of any provision of section 6 or 7 of these T&Cs.
Unless Affiliate provides sufficient elements to establish the absence of breach within the imparted time indicated in the notice, MobPartner may terminate Contract, without prejudice of MobPartner’s right to claim adequate indemnification and remedies.
In this case:
No indemnification can be obtained by Affiliate for the suspension of the MobPartner Service or termination of the Contract under this article.
MobPartner may terminate the Contract if Affiliate’s Account has not been logged into and/or there have been no Transactions credited to such Account for a consecutive 6-months period, or if Affiliate’s Account is a Dormant Account and has reached a negative balance by application of section 8 above.
Except if otherwise agreed, MobPartner may terminate the Contract if Affiliate’s Account presents a negative balance for more than 90 days.
In such case, MobPartner will send a written notice, and unless Affiliate cures the situation within the imparted deadline specified in the notice, MobPartner will definitely close the Account, without prejudice of MobPartner’s right to claim adequate indemnification and remedies.
Upon termination of the Contract, for whatever reason, Affiliate shall make the payment request for all outstanding Transactions within thirty (30) days of the termination date, and MobPartner will issue the payment for amounts effectively due by MobPartner within a net thirty (30) days period after receipt of the related payment request.
All payments are subject to recovery for Charge-backs.
Any outstanding debit balance shall be paid by Affiliate to MobPartner within 30 (thirty) days of termination of this Agreement of, in case of Charge-back on the last payment, within 30 (thirty days of MobPartner’s Charge-back notification.
Upon termination of the Contract, for whatever reason, all licences granted under this Agreement will immediately terminate, and Affiliate shall immediately remove all Affiliate Links and Advertiser.
Provisions of the T&Cs that by their nature and context are intended to survive the termination (in particular the indemnification provisions) shall survive the termination of the Contract for whatever reason, to the extent that and as long as is necessary to preserve a party's rights under the Contract that accrued prior to termination.
Affiliate represents and warrants neither the Affiliate Medium nor the Affiliate Services will render MobPartner liable to any proceedings whatsoever.
Affiliate shall defend, indemnify and hold MobPartner (including MobPartner’s officers, directors, employees, corporate affiliates, subsidiaries, agents, and subcontractors) harmless from any and all liabilities, claims and losses of any kind or nature (including but not limited to reasonable attorney’s fees and costs) arising from or in connection with any breach of any of Affiliate’s obligations and/or representations under sections 6 and 7 of these T&Cs by Affiliate, Affiliate’s officers, directors, employees, corporate affiliates, subsidiaries, agents, commercial partners and/or subcontractors.
MobPartner shall promptly notify Affiliate of any such claim or action, and MobPartner shall be entitled, at its own expense, and upon reasonable notice to Affiliate, to participate in the defence of such claim or action.
Participation in the defence shall not waive or reduce any of Affiliate’s obligations to indemnify or hold MobPartner harmless. Affiliate shall not settle any claim without MobPartner’s prior written consent. Affiliate shall indemnify for any reasonable attorneys' fees or other costs incurred by MobPartner in investigating or enforcing this Section 10.
MobPartner makes its best efforts to operate the MobPartner Platform and Services according to the current industry standards as regarding service availability and security.
MobPartner is, under no circumstances, responsible for the practices, acts or omissions of any advertiser or affiliate, or such advertiser or affiliate’s medium.
EXCEPT IN CASE OF FRAUD OR NEGLIGENCE CAUSING DEATH OR PERSONAL INJURY, ANY OBLIGATION OR LIABILITY OF MOBPARTNER UNDER THESE T&CS SHALL BE EXPRESSLY LIMITED TO DIRECT MATERIAL DAMAGES ONLY, AND CAPPED AT THE TOTAL AMOUNT OF PAYOUTS PAID TO AFFILIATE BY MOBPARTNER UNDER THESE T&CS DURING THE 6 (SIX) MONTHS PRECEDING THE CLAIM.
TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, MOBPARTNER DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ABSENCE OF VIRUSES OR HARMFUL COMPONENTS, CORRECTNESS, ACCURACY, RELIABILITY, OR INTERFERENCE WITH ENJOYMENT OF THE AFFILIATE'S INFORMATION OR MEDIUM.
NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST MOBPARTNER MORE THAN 1 (ONE) YEAR AFTER THE TERMINATION OF THE CONTRACT.
Affiliate or MobPartner may provide each other with information that is confidential and/or proprietary, as 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, and in all cases no less effort than it uses to protect its own Confidential Information, to ensure the protection and maintain the confidentiality of the Confidential Information.
Confidential Information shall not include information:
Upon termination of the Contract, Affiliate must, upon MobPartner’s request, destroy or return to MobPartner any Confidential Information provided by MobPartner to Affiliate under the Contract.
Affiliate agrees that MobPartner may provide Affiliate’s identification and contact details, as well as any and all end-user, Transaction and/or Tracking Code data, traffic sources and referring urls to the Advertiser to which Affiliate referred such end-user, and to any competent regulatory, legislative and judicial bodies.
MobPartner reserves the right to utilise Tracking Code data provided to it, which may include: information about Affiliate’s performance statistics, to analyse the MobPartner Service trends, monitor the MobPartner Service efficiency, maintain the integrity of the Tracking Code, promote MobPartner Service capabilities and efficiencies, and promote Affiliate and its web performance to Advertisers.
Affiliate agrees that MobPartner may identify it in client lists and may use Affiliate’s name and/or logo solely for such purpose in its marketing materials. Any other uses of Affiliate’s name and/or logo not otherwise described or contemplated herein shall require Affiliate’s prior written consent.
Independence: The relationship of MobPartner and Affiliate shall be solely that of independent contractors, and nothing contained in these T&Cs or in the business or dealings between the parties shall be construed otherwise. In particular, nothing shall be construed to create a joint venture or a partnership between them. Neither party shall do anything to suggest to third parties that the relationship between the parties is anything other than that of independent contractors.
Competent law and jurisdiction: These T&Cs and the relationship between the Parties are governed by the laws of France without regards to conflicts of law principles. The exclusive forum for any actions related to this Agreement shall be in the Courts in Paris, France, including in case of emergency proceeding or in case of call in guarantee.
Force majeure: Neither party shall be liable by reason of any failure or delay in the performance of its obligations hereunder for any case of “Force Majeure”, in accordance with article 1148 of the French civil code, understood as any unpredictable event external to a party and which is beyond its reasonable control.
Severability: If any provision of these T&Cs is held by any court of competent jurisdiction to be illegal, null or void, all the remaining provisions of these T&Cs shall remain in full force and effect.
Waiver: The waiver of any breach of any provision under these T&Cs shall not be deemed to be a waiver of any preceding or subsequent breach, nor shall any waiver constitute a continuing waiver.
Transfer/ Assignment: Affiliate is not authorized to assign the Contract without the prior express written permission of MobPartner.
MobPartner may at its sole discretion and without requesting the Affiliate’s consent, transfer the Contract to an entity that acquires a substantial part of MobPartner's stock, assets or business, or to any company of MobPartner’s group (entity directly or indirectly controlled by MobPartner, or directly or indirectly controlling MobPartner, or directly or indirectly controlled by the same parent entity as MobPartner, as defined in article L 233-3 of the French commerce code).
Cumulative remedies: The rights and remedies herein provided to MobPartner in case of default or breach of these T&Cs by Affiliate are cumulative and without prejudice to any other rights or remedies that MobPartner may have by reason of such default or breach by Affiliate at law, in equity, under contract or otherwise (all of which are hereby expressly reserved).
Notices: Any notice or other communication under this Agreement shall be in writing and shall be considered given when sent by email.