Buya Media Ltd., Publisher/Affiliate Terms and Conditions
YOU MUST BE AT LEAST EIGHTEEN (18) YEARS OLD TO USE THE SERVICE AND/OR THE SITE. Any registration by, use of, or access to the Service or Site, by anyone under age 18 is unauthorized and in violation of these Terms and Conditions. By using the Service or the Site, you represent and warrant that You are at least 18 years of age or older and that you agree to abide by these Terms and Conditions.
If You do not agree to the Terms and Conditions in their entirety, you are not authorized to use the Service, and/or use the Site, in any manner or form whatsoever.
1. Buya Media solicits customers on behalf of its advertising clients (a “Client” or the “Clients”) through the placement of advertising offers (“Offers”) published by Publishers or Sub-Publishers (as defined below). Offers may be banners, gateways, text links, or any other advertising format. We enable Publishers to apply for and, upon Our approval, have an opportunity to earn “Commissions” (as defined below) through participation in various advertising campaigns (“Programs”) offered by Us or by Our Clients in accordance with the Agreement. “Commissions” are generated from a specified transaction (“Action”) as defined by Us. Actions include, without limitation, sales, registrations, leads, impressions, and/or clicks or may be calculated periodically (such in the event of fixed payment per week or months), all as agreed explicitly between You and Us. We may, at Our sole discretion, change a Program at any time, without prior notice to You, unless otherwise specified. Similarly, you may cease participation in a previously accepted Program at any time, unless otherwise specified. Program data compiled by Us including, but not limited to, numbers and calculations regarding Actions and associated Commissions (“Program Data”), will be directly and/or indirectly calculated by Us through the use of industry standard tracking technology and shall be final and binding on You. Any questions and/or disputes regarding the Program Data must be submitted in writing within seven (7) days delivery to You, otherwise the Program Data will be irrevocably deemed to be accurate and accepted by You. Publisher understands and agrees that on occasion the Service may be inaccessible, unavailable or inoperable for any reason, including, but not limited to, equipment malfunctions, periodic maintenance procedures or repairs, or causes beyond Our control, including, but not limited to, interruption or failure of telecommunication or digital transmission links, hostile network attacks, the unavailability, operation, or inaccessibility of websites or interfaces, network congestion or other failures. We will attempt to provide the Service on a continuous basis. However, Publisher acknowledges and agrees that We have no control over the availability of the Service and on a continuous or uninterrupted basis. Our failure to deliver because of technical difficulties does not represent a failure to meet the obligations of the Agreement. We may, at Our sole discretion, refuse to register You as a Publisher, terminate Your participation in the Service, and/or terminate Your participation in any Program at any time for any reason.
2. Application Information. All information that you provide to Us must be complete, accurate, and honest. Any falsification of such information will result in the immediate termination and forfeiture of all Commissions up through and including the date of termination. Such information may (but need not) include, without limitation, Your email address, telephone number, date of birth, gender, driver’s license number/state of issuance, or passport upload, social security number/EIN (if in the United States), and other means by which We may employ to identify You.
3. Conditions of Service Usage. As a condition of Your use of the Service, You represent, warrant, and covenant on a continuing and ongoing basis, that Your website: (a) does not violate any state or federal laws or regulations, without limitation, governing: (i) false or deceptive advertising; or (ii) sweepstakes or gambling; (b) does not contain any comparative advertising, trade disparagement or libelous, defamatory or infringing content; (c) does not contain any machine-readable code that could be unintentionally downloaded onto a recipient’s computer (such as a worm, virus, Trojan Horse or other self-executing computer program); and (d) does not contain any material that (i) infringes upon intellectual property rights of a third party (including any trademarks, service marks or copyrights) or (ii) may be a basis to a claim or suit by any third party. .
4. Ineligible Websites. Websites that do not feature customer-friendly site navigation or contain acceptable content (including pornographic or hateful content) that We, in Our sole discretion, determine that do not meet a reasonably acceptable commercial or aesthetic standard are not eligible for usage with respect to the Service. If We, in the exercise of reasonable discretion, determine Your website to be ineligible, all Commissions, whether earned or unearned, shall be forfeited.
5. Participation and Membership. Your participation and membership in the Service will commence on the date Your application is accepted and will continue until terminated by one of the Parties. We reserve the right to terminate an existing membership at will, in Our sole discretion, for any reason/cause, or for no reason/cause at all.
6. Identification Number. Upon submission of your application, you will be issued an identification number. The aforementioned identification number shall serve as a personal identifier. Your use of the identification number and Your login information shall not, under any circumstances whatsoever, be distributed to and/or used by a third-party, including, without limitation, any Sub-Publisher.
7. Special Rules Governing Sub-Publishing. Publisher may desire to use non-member business partners and/or associates to distribute Offers, fulfill the obligations, and/or exercise the rights under a particular Program. For the purposes of this section, any of Publisher’s business partners or associates that participate in or perform any activities on behalf of Publisher under the Agreement shall be considered to be a “Sub-Publisher.” All Sub-Publishers must meet the same criteria for approval as the Publisher and must comply with all the terms and conditions that are applicable to Publisher under the Agreement. . We reserve the right to reject any and all Sub-Publishers and may demand that You cease working with Sub-Publisher at any time and for any reason.
8. Relationship among Publisher, Sub-Publisher(s) and Us. Publisher is responsible for and shall fully and unconditionally indemnify Us for any and all actions of any of its Sub-Publishers, including the payment of attorneys’ fees and costs. Each Sub-Publisher shall, for purposes of these Terms and Conditions, be deemed to be an agent of the Publisher and You are responsible in all respects for the activities of Your Sub-Publishers. Any breach by Your Sub-Publishers of the Agreement shall be deemed a breach by You. It is understood and agreed between You and Us that (a) We are not and shall not be party to any agreement between You and any Sub-Publisher, (b) You are not authorized to make any commitments on behalf of Us to any Sub-Publisher, including but not limited to any payment or other commitment by Us, and (c) no license other than the license set forth in herein may be extended by You to any Sub-Publisher. Additionally, we may, at Our sole discretion, terminate a Publisher at any time based on the actions of that Publisher’s Sub-Publisher(s). Once express approval of a Sub-Publisher has been granted by Us, notices to the Publisher shall be deemed notice to that Publisher’s approved Sub-Publisher(s). Publisher agrees that We are under no obligation to pay a Sub-Publisher. We further reserve the right to withhold or refuse payment to any Publisher in the event that any of its Sub-Publishers breach the Agreement.
9. No Third-Party Beneficiary Status. Nothing in Our permission to engage Sub-Publishers may be construed as extending to any Sub-Publisher the status of third-party beneficiary of any agreement between Us and You, including without limitation these Terms and Conditions.
10. Special Rules and Restrictions Governing Campaigns. By accepting membership in the Service, You agree to refrain from originating, authorizing or participating in any non-consensual campaigns or promotions, whether by e-mail, telephone or otherwise, including but not limited to “spamming.”
11. Audit of Website Traffic. We reserve the right to audit any website traffic at any time and for any reason, or no reason at all. Should We determine, in the exercise of Our reasonable business judgment, that You have employed any device to artificially inflate Actions, Your membership in the Service will be immediately terminated, all unpaid Commissions for all Programs will be immediately voided, and You will return to Us immediately any Commissions attributable to all Programs that had been previously paid within five (5) business day of demand, and, in the event that we will have sufficient proof that you have, in fact, artificially inflated traffic, you will pay us a liquidated damages sum of USD 5,000, without any proof of damage.
12. Proprietary Rights. Subject to the Agreement and applicable Program terms, We grant to Publisher a limited, non-exclusive, revocable, non-transferable (except as may be set forth elsewhere, herein), royalty free, worldwide license to display on, distribute through, and/or download one or more Offers for posting on Your website and/or other approved marketing channels, and any and all associated trademarks, service marks, tradenames and/or copyrighted material (“Intellectual Property Matter”) that We provide to Publisher through the Service for the limited purposes of promoting Programs to end users. Publisher may not remove or alter any copyright or trademark notices. The Intellectual Property Matter (as defined below) and other matters related to, without limitation, the Programs, Service, Offers and Site are protected under applicable copyright, trademark and other proprietary rights. The use, copying, redistribution and/or publication by Publisher of the same or of any part thereof, other than as expressly permitted hereunder, are strictly prohibited. Publisher does not acquire any ownership rights to, without limitation, the Programs, Service, Offers, and/or Site. You may not use, copy, emulate, clone, rent, lease, sell, modify, decompile, disassemble, reverse engineer or transfer the Site, Site content or any portion thereof. We reserve any rights not explicitly granted in the Agreement.
13. Compensation and Payment Terms. You will be paid the applicable Commission for Actions as agreed by us in advance. Commissions will be payable only for Offers published by You in accordance with specific Program terms, and only after the Commissions have been earned. Commissions will not be “earned” until We receive corresponding payments from the Client. Our responsibilities do not involve investigating or resolving any claim or dispute involving You and any Client or other third party. It is Your responsibility to advise us immediately of any change in any of the information furnished by You when You signed up for the Service. You agree that corresponding payments shall be made by Us to You out of the funds actually collected by Us from the applicable Client. We shall have no payment obligation to Publisher where the Client has not remitted sufficient payments to cover the Commissions otherwise due and owing Publisher. All Publisher accounts will be paid in U.S. dollars. All payments due hereunder are exclusive of any applicable taxes, electronic wire transfer fees/costs, electronic funds transfer fees/costs (e.g., PayPal), pre-paid debit card fees/costs. Publisher shall be responsible for all of the foregoing applicable taxes, fees, and costs. A Client may request that We, or We may, on Our own initiative, debit from the Commissions otherwise due and owing Publisher an amount equal to a Commission previously credited to Publisher’s account where a return or cancellation has been made with respect to the applicable product and/or service, there is an instance of a duplicate, fraudulent or incomplete entry or other similar error with respect to a customer order, there are Actions that do not comply fully with the terms of the Agreement, including where the applicable non-complying Action is not the result of Publisher’s action, omission and/or failure to comply with the terms and conditions of the Agreement, there is non-receipt of payment from, or refund of payment to, the customer that entered into the subject Action, or there is any failure on the part of Publisher to comply with the Agreement and/or the applicable Program terms (collectively referred to as a “Chargeback”). Chargebacks requested by a Client in accordance with this Section may be applied up to ninety (90) days after the end of the month in which the applicable Commission was earned. The number or amount of Actions, credits for payments and debits for Chargebacks, as calculated by Us, shall be final and binding on Publisher. You acknowledge and agree that Your receipt of Commission payments that We may elect to advance to You prior to those payments having been earned is conditional and subject to Our right to demand return of unearned Commissions for any reason, at Our sole discretion. We reserve the right to withhold and/or cancel any and all Commissions otherwise due and owing to You at any time, in Our sole discretion, when We believe that You and/or any Sub-Publisher are in breach of any term of these Terms and Conditions, or otherwise the Agreement.
14. Our Records. We maintain records of all traffic passing over the Service. Our records shall govern all interpretations made under this Agreement, including but not limited to the calculation of Commissions.
15. Minimum Commission Requirement for Regular Payment. We shall not be obligated to make any payment of Commissions to You unless the aggregate amount of earned Commissions equal or exceed the payment threshold of fifty US Dollars ($50 USD). Any earned but unpaid Commissions shall carry over to the next regularly scheduled payment period.
16. Suspension of Payment. If We, in Our sole discretion, suspect or determine that You are in breach of any material term of this Agreement, your account will be deactivated immediately, with no notice to You, and You will forfeit all Commissions, pending further investigation. We reserve sole judgment in determining the breach of any material term of this Agreement and You agree to be bound by any and all such determinations. It is the obligation and burden of Publisher to prove to Us that it has not breached any material term of this Agreement.
17. Fraud. We actively monitor traffic, Actions, Commissions, and other Program-related activities for potential fraud. If We, in Our sole discretion, suspect or determine that Your account has been used in a fraudulent manner, your account will be deactivated effective immediately, with no notice to You, and You will forfeit all Commissions, pending further investigation. By way of example, where the applicable Action involves the generation of leads, and the applicable leads delivered by You were are either fraudulently obtained, erroneous, fake, duplicates, or comprised of consumers that have previously registered for, opted-in to and/or are already members and/or customers of the subject Client, as the case may be.
18. Non-Disclosure. Any and all information submitted by end-user customers in connection with a Program shall be considered proprietary to and owned by Us. Such customer information is Confidential Information (defined below) of Ours and may not be utilized or otherwise disclosed by You. In addition, you acknowledge that all non-public information, data, and reports made available by Us hereunder or otherwise as part of the Services are proprietary to and owned by Us. All proprietary and Confidential Information is protected by copyright, trademark and other intellectual property laws. You agree not to reproduce, disseminate, sell, distribute or commercially exploit any proprietary or Confidential Information of Us in any manner. These non-disclosure obligations shall survive termination or expiration of the Agreement.
19. Confidentiality. “Confidential Information” means any information disclosed to You by Us, either directly or indirectly, in writing, verbally, or by inspection of tangible objects, other than information that You can establish: (a) was publicly known and made generally available in the public domain prior to the time of disclosure to You by Us; (b) becomes publicly known and made generally available after disclosure to You by Us other than through Your action or inaction; and/or (c) is in Your possession, without confidentiality restrictions, at the time of disclosure by Us as shown by Your files and records prior to the time of disclosure. All information relating to Your participation in the Service, including but not limited to Your log-in identification number, the identities of any Client, Our Commission rates, Program rates, and pricing strategies shall be considered “Confidential Information”. You shall not at any time, without the prior written consent of Us: (a) disclose, sell, license, transfer or otherwise make available to any person or entity any Confidential Information; (b) use any Confidential information (other than to confirm the accuracy of Commission calculations); and/or (c) reproduce or otherwise copy any Confidential Information, except as necessary in connection with the purpose for which such Confidential Information is disclosed to You or as required by applicable law. You agree to take all reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information. All Confidential Information shall at all times remain Our property and all documents, electronic media and other tangible items containing or relating to any Confidential Information shall be delivered to Us immediately upon Our request.
21. Our Covenants. We covenant and agree to use Our commercially reasonable best efforts: (a) to provide, monitor and maintain the necessary technology applications required to link You to Client websites; (b) to provide You with Offers in appropriate format; and (c) to provide changes to Offers or cancellations as quickly as is commercially feasible in advance of requested change date or time.
22. Your Covenants. You covenant and agree to use Your commercially reasonable best efforts: (a) to continue to operate and maintain Your distribution channels in a manner consistent with the intent and purpose of this Agreement; (b) to place Offers in Your distribution channels in accordance with this Agreement; and (c) to respond to any change notice and/or communication within one (1) business day from Our transmission of such change notice and/or communication to You.
23. Limited Promotional License. You hereby grant Us a limited, non-exclusive, revocable, worldwide license for the term of this Agreement to use, reproduce and distribute Your company name and logo for use in our promotional materials.
24. Non-Circumvent. You shall not, during the term of this Agreement and for six (6) months thereafter, implement any CPA/CPM/CPC/CPL agreements with any Client with whom You did not have a previously existing CPA/CPM/CPC/ CPL agreement. In the event that You do so directly contract with such a party, you shall pay Us an additional commission equal to what We would otherwise have earned had You not violated this Section.
25. Term and Termination. This Agreement shall commence upon execution of a relevant insertion order and remain in effect until terminated as set forth herein. This Agreement may be terminated by Us at any time, for any reason, or for no reason at all. You may terminate this Agreement as set forth in the applicable insertion order. If no applicable notice period is specific, you may terminate this Agreement upon twenty-four (24) hours prior written notice. In addition, we reserve the right, in Our sole and absolute discretion, to terminate a Program or your access to the Service at any time for any reason, upon notice to You. The representations, warranties and obligations contained within this Section and the Agreement itself shall remain in full force and effect after termination of the Agreement.
26. Responsibilities Following Termination. Immediately upon termination, you will remove any and all Offers, Program information, our code, and/or or other intellectual property made available to Publisher in connection with its performance under the Agreement from any website(s) owned or operated by You.
28. Limitation of Liability and Disclaimer of Warranty. ANY OBLIGATION OR LIABILITY OF US UNDER THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL OF YOUR COMMISSIONS PAID TO YOU BY US UNDER THIS AGREEMENT DURING THE YEAR PRECEDING THE CLAIM. NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST US MORE THAN ONE YEAR AFTER THE TERMINATION OF THIS AGREEMENT. YOU AGREE THAT WE SHALL NOT BE LIABLE TO YOU, OR ANY THIRD PARTY (INCLUDING, BUT NOT LIMITED TO, A CLAIM BY ANOTHER PUBLISHER OR A CLIENT), 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. PUBLISHER RECOGNIZES AND ACKNOWLEDGES THAT THIS LIMITATION OF DAMAGES IS FAIR AND REASONABLE. THE SITE, PROGRAMS, CLIENTS’ UNDERLYING PRODUCTS AND SERVICES, CONTENT AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND ALL WARRANTIES, EXPRESS AND IMPLIED, ARE DISCLAIMED (INCLUDING, WITHOUT LIMITATION, THE DISCLAIMER OF ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND/OR FITNESS FOR A PARTICULAR PURPOSE). THE SITE, PROGRAMS AND/OR CLIENTS’ UNDERLYING PRODUCTS AND SERVICES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. WE HAVE NO LIABILITY, WHATSOEVER, TO PUBLISHER OR ANY THIRD PARTY, FOR PUBLISHER’S USE OF, OR INABILITY TO USE, THE SITE, PROGRAMS AND/OR CLIENTS’ UNDERLYING PRODUCTS OR SERVICES AND WE DISCLAIM ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, THAT PUBLISHER’S USE OF SAME WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ANY OF THE PROGRAMS WILL BE AVAILABLE TO PUBLISHER. WE MAKE NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY RESULTS OBTAINABLE THROUGH THE SERVICE.
29. Indemnity. You shall indemnify, defend and hold Us, Our Clients and each of Our and their respective parents, publishers, subsidiaries, officers, partners, members, managers, employees, agents and attorneys, harmless from and against any and all claims, allegations, liabilities, costs and expenses (including reasonable attorneys’ fees) arising out of or related to, without limitation: (a) You and/or Your Sub-Publisher’s improper use of the Site, Programs, and/or the Service; (b) any third party claim related to You and/or Your Sub-Publisher’s website, and/or marketing practices; (c) any third party allegation or claim against Us and/or Our Clients relating to a violation of any and all state and federal laws or the laws of You and/or Your Sub-Publisher’s jurisdiction; (d) any content, goods or services offered, sold or otherwise made available by You and/or Your Sub-Publisher on or through the Publisher and/or Sub-Publisher’s website, or other marketing channels or otherwise; (e) breach and/or violation of the Agreement and/or any representation or warranty contained herein; and/or (f) You and/or Your Sub-Publisher’s use of the Service, in any manner whatsoever.
30. Jurisdiction and Venue. This Agreement shall be governed by the laws of the State of Israel, without giving effect to its conflict of law rules. The parties agree that the forum for dispute resolution under this Agreement shall be located exclusively in Tel-Aviv, Israel. The parties specifically exclude the United Nations Convention of Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act from application to this Agreement.
31. Severability and Non-Waiver. If any provision of the Agreement is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability shall not affect any other provisions of the Agreement, and the Agreement shall be construed as if such invalid, illegal or unenforceable provision had not been contained herein. No waiver of any breach of any provision of the Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving Party.
32. Assignment. We may assign or transfer Our rights to the Agreement, or any portion thereof, at Our sole discretion and without restriction. You may not assign, transfer or delegate any of Your rights under the Agreement except with Our prior written consent, which may be withheld for any reason, and any attempts to do so shall be null and void. The Agreement will be binding on, inure to the benefit of and be enforceable against, the Parties’ successors and assigns.
33. Relationship. The Parties are non-exclusive independent contractors and not partners, joint ventures, or employees of the other. Neither Party shall have the right to bind the other or to incur any obligation on the other Party’s behalf.
34. Notices. Unless otherwise specified herein, any notice, communication or statement relating to this Agreement, including the Terms and Conditions, shall be in writing and deemed effective immediately: (a) upon delivery when delivered in person; (b) upon Your receipt of such notice when delivered via e-mail, facsimile transmission or other means of public communication; (c) upon Your receipt of such notice when delivered by registered or certified mail, postage prepaid, return receipt requested or by nationally recognized overnight courier service to the address of the respective Party; (d) or three (3) business days following the sending of notice, whichever is earlier. All written notices shall be sent to the address submitted by You when You signed up for the Service and, if to Us, to the address listed in Our Site.
35. Survival. Any and all provisions hereof which by their nature are intended to survive the termination of Your participation in Our Programs and/or this Agreement, shall survive any such termination.
36. Corporate Authority; Non-Breach. Each Party represents and warrants to the other that: (a) such Party has all necessary right, power and authority to agree to this Agreement and to perform its obligations hereunder; (b) nothing contained in this Agreement or required by such Party’s performance hereunder will place such Party in breach of any other contract or agreement to which it is bound or violate any applicable law, including obscenity, privacy and defamation laws; and (c) the performance of either Party’s obligations under this Agreement shall not infringe or violate upon the intellectual property or privacy rights of any third party.
37. Electronic Signatures. You acknowledge and agree that by clicking on the button labeled “I Agree” or such similar links as may be designated by Us to accept this Agreement, you are submitting a legally binding electronic signature and are entering into a legally binding contract. You acknowledge that Your electronic submission constitutes Your agreement and intent to be bound by this Agreement.