Affiliate Program Operating Agreement This Affiliate Program Operating Agreement (the “Agreement”) is made and entered into by and between Gameberry Inc. (“Gameberry Inc.” or “we”), and you, (“you” or “Affiliate”) the party submitting an application to become an Gameberry Inc. affiliate). The terms and conditions contained in this Agreement apply to your participation with http://www.junggglex.com (“Affiliate Program”). Each Affiliate Program offer (an “Offer”) may be for any offering by Gameberry Inc. or a third party (each such third party a “Client”) and may link to a specific website for that particular Offer (“Program Web Site”). Furthermore, each Offer may have additional terms and conditions on pages within the Affiliate Program and are incorporated as part of this Agreement. By submitting an application or participating in an Offer, you expressly consent to all the terms and conditions of this Agreement.
You must submit an Affiliate Program application from our website. You must accurately complete the application to become an affiliate (and provide us with future updates) and not use any aliases or other means to mask your true identity or contact information. After we review your application, we will notify you of your acceptance or rejection to the Affiliate Program, generally within two (2) business days. We may accept or reject your application at our sole discretion for any reason.
Obligations of the Parties
Subject to our acceptance of you as an affiliate and your continued compliance with the terms and conditions of this Agreement, Gameberry Inc. agrees as follows:
We will make available to you via the Affiliate Program graphic and textual links to the Program Web Site and/or other creative materials (collectively, the “Links”) which you may display on web sites owned or controlled by you, in emails sent by you and clearly identified as coming from you and in online advertisements (collectively, “Media”). The Links will serve to identify you as a member of our Affiliate Program and will establish a link from your Media to the Program Web Site.
We will pay Affiliate for each Qualified Action (the “Commission”). A “Qualified Action” means an individual person who
We will pay you any Commissions earned monthly, provided that your account is currently greater than $100 and the Affiliate will incure wire fees. Accounts with a balance of less than $100 will roll over to the next month, and will continue to roll over monthly until $500 is reached. If a payment of less than $100 is granted, the payment will be made via Paypal and the Affiliate will incur the Paypal fees. We reserve the right to charge back to your account any previously paid Qualified Actions that are later determined to have not met the requirements to be a Qualified Action.
Payment for Commissions is dependent upon Clients providing such funds to Gameberry Inc., and therefore, you agree that Gameberry Inc. shall only be liable to you for Commissions to the extent that Gameberry Inc. has received such funds from the Clients. You hereby release Gameberry Inc. from any claim for Commissions if Gameberry Inc. has not received such funds from the Clients.
All tracking of Links and determinations of Qualified Actions and Commissions shall be made by Gameberry Inc. in its sole discretion. In the event that Affiliate disputes in good faith any portion of an invoice, Affiliate must submit that dispute to Gameberry Inc. in writing and in sufficient detail within thirty (30) days of the date on the invoice. If Affiliate does not dispute the invoice as set forth herein, then Affiliate agrees that it irrevocably waives any claims based upon that invoice. In the event that Affiliate is also tracking Qualified Actions and Affiliate claims a discrepancy, Affiliate must provide Gameberry Inc. with Affiliate’s reports within three (3) days after 30th day of the calendar month, and if Gameberry Inc.’s and Affiliate’s reported statistics vary by more than 10% and Gameberry Inc. reasonably determines that Affiliate has used generally accepted industry methods to track Qualified Actions, then Gameberry Inc. and Affiliate agree to make a good faith effort to arrive at a reconciliation. If the parties are unable to arrive at a reconciliation, then Gameberry Inc.’s numbers shall govern.
If Affiliate has an outstanding balance due to Gameberry Inc. under this Agreement or any other agreement between the Affiliate and Gameberry Inc., whether or not related to the Affiliate Program, Affiliate agrees that Gameberry Inc. may offset any such amounts due to Gameberry Inc. from amounts payable to Affiliate under this Agreement.
Affiliate also agrees to:
Have sole responsibility for the development, operation, and maintenance of, and all content on or linked to, your Media.
Ensure that all materials posted on your Media or otherwise used in connection with the Affiliate Program
Not make any representations, warranties or other statements concerning Gameberry Inc. or Client or any of their respective products or services, except as expressly authorized herein.
Make sure that your Media does not copy or resemble the look and feel of the Program Web Site or create the impression that your Media is endorsed by Gameberry Inc. or Clients or a part of the Program Web Site, without prior written permission from us.
Comply with all
Comply with the terms, conditions, guidelines and policies of any third party services used by Affiliate in connection with the Affiliate Program, including but not limited to, email providers, social networking services and ad networks.
Always prominently post and make available to end-users any terms and conditions in connection with the Offer set forth by Gameberry Inc. or Client, or as required by applicable laws regarding such Offers.
The following additional program-specific terms shall apply to any promotional programs set forth below:
Advertising Campaigns. No Links can appear to be associated with or be positioned on chat rooms or bulletin boards unless otherwise agreed by Gameberry Inc. in writing. Any pop-ups/unders used for the Affiliate Program shall be clearly identified as Affiliate served in the title bar of the window and any client-side ad serving software used by Affiliate shall only have been installed on an end-user’s computer if the function of the software is clearly disclosed to end-users prior to installation, the installation is pursuant to an affirmatively accepted and plain-english end user license agreement and the software be easily removed according to generally accepted methods.
Affiliate Network Campaigns. For all Affiliate’s that maintain their own affiliate networks, Affiliate agrees to place the Links in its affiliate network (the “Network”) for access and use by those affiliates in Affiliate’s Network (each a “Third Party Affiliate”). Affiliate agrees that it will expressly forbid any Third Party Affiliate to modify the Links in any way. Affiliate agrees to maintain its Network according to the highest industry standards. Affiliate shall not permit any party to be a Third Party Affiliate whose web site or business model involves content containing Objectionable Content. All Third Party Affiliates must be in good standing with Affiliate. Affiliate must require and confirm that all Third Party Affiliates affirmatively accept, through verifiable means, this Agreement prior to obtaining access to the Links. Affiliate shall promptly terminate any Third Party Affiliate who takes, or could reasonably be expected to take, any action that violates the terms and conditions of this Agreement. In the event that either party suspects any wrongdoing by a Third Party Affiliate with respect to the Links, Affiliate shall promptly disclose to Gameberry Inc. the identity and contact information for such Third Party Affiliate. Affiliate shall promptly remove any Third Party Affiliate from the Affiliate Program and terminate their access to future Offers of Gameberry Inc. in the Network upon written notice from Gameberry Inc.. Unless Gameberry Inc. has been provided with all truthful and complete contact information for a Third Party Affiliate and such Third Party Affiliate has affirmatively accepted this Agreement as recorded by Gameberry Inc., Affiliate shall remain liable for all acts or omissions of any Third Party Affiliate.
API integrated publishers- Offers may be paused or resumed at any time without prior notification.
Except as otherwise provided in this Agreement or with the consent of Gameberry Inc., you agree that all information, including, without limitation, the terms of this Agreement, business and financial information, customer and vendor lists, and pricing and sales information, concerning us or any of our affiliates provided by or on behalf of any of them shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by you for any purpose other than your participation in the Affiliate Program, except and solely to the extent that any such information is generally known or available to the public through a source other than you. Affiliate shall not use any information obtained from the Affiliate Program to develop, enhance or operate a service that competes with the Affiliate Program, or assist another party to do the same.
In the event that Publisher whether without anyone else’s input or through its outsiders furnish Gameberry with any Personal Data as characterized under General Data Protection Regulation (“GDPR”) for clients situated in EEA, Publisher will as the Controller execute a significant information security understanding for setting out the terms of Processing (accordingly terms are characterized under GDPR) by Gameberry. The distributor might guarantee that neither Publisher nor its outsiders including Advertisers should share any EEA client Personal Data with Gameberry but to the degree, such an information security assertion has been executed.
If You are a GDPR compliant Demand Partner/Publisher, you agree to accept the terms of Gameberry’s Data Protection Segment as set out in “http://junggglex.com/privacy” where you are receiving EEA user Personal Data as defined under GDPR from Gameberry. Where you intend to share any EEA user Personal Data as defined under GDPR with Gameberry/Media Company, please share your data protection agreement with us for review. You agree not to share any EEA user Personal Data with Gameberry except where such a data protection agreement has been executed.
We grant you a nonexclusive, nontransferable, revocable right to use the Links and to access our website through the Links solely in accordance with the terms of this Agreement, for the sole purpose of identifying your Media as a participant in the Affiliate Program and assisting in increasing sales through the Program Web Site.
You may not alter, modify, manipulate or create derivative works of the Links or any Gameberry Inc. graphics, creative, copy or other materials owned by, or licensed to, Gameberry Inc. in any way. You are only entitled to use the Links to the extent that you are a member in good standing of the Affiliate Program. We may revoke your license anytime by giving you a written notice. Except as expressly stated herein, nothing in this Agreement is intended to grant you any rights to any of Gameberry Inc.’s trademarks, service marks, copyrights, patents or trade secrets. You agree that Gameberry Inc. may use any suggestion, comment or recommendation you choose to provide to Gameberry Inc. without compensation. All rights not expressly granted in this Agreement are reserved by Gameberry Inc..
This Agreement shall commence on the date of our approval of your Affiliate Program application and shall continue thereafter until terminated as provided herein. You may terminate your participation in the Affiliate Program at any time by removing all Links from your Media, deleting all copies of the Links. We may terminate your participation in one or more Offers or this Agreement at any time and for any reason which we deem appropriate with or without prior notice to you by disabling the Links or providing you with a written notice. Upon termination of your participation in one or more Offers or this Agreement for any reason, you will immediately cease all use of and delete all Links, plus all Gameberry Inc. or Client intellectual property, and will cease representing yourself as a Gameberry Inc. or Client affiliate for such one or more Offers. All rights to validly accrued payments, causes of action and any provisions, which by their terms are intended to survive termination, shall survive any termination.
In addition to any other rights and remedies available to us under this Agreement Gameberry Inc. reserves the right to delete any actions submitted through your Links and withhold and freeze any unpaid Commissions or charge back paid Commissions to your account if
Such withholding or freezing of Commissions, or charge backs for paid Commissions, shall be without regard as to whether or not such Commissions were earned as a result of such breach. In the event of a material breach of this Agreement, Gameberry Inc. reserves the right to disclose your identity and contact information to appropriate law enforcement or regulatory authorities or any third party that has been directly damaged by your actions.
You must strictly comply with the federal CAN-SPAM Act of 2003 (the “Act”). All emails sent in connection with the Affiliate Program must include the appropriate party’s opt-out link. From time to time, we may request – prior to your sending emails containing linking or referencing the Affiliate Program that you submit the final version of your email to Gameberry Inc. for approval by sending it to your Gameberry Inc. representative and upon receiving written approval from Gameberry Inc. of your email the email may be transmitted to third parties.
It is solely your obligation to ensure that the email complies with the Act. You agree not to rely upon Gameberry Inc.’s approval of your email for compliance with the Act, or assert any claim that you are in compliance with the Act based upon Gameberry Inc.’s approval.
You are expressly prohibited from using any persons, means, devices or arrangements to commit fraud, violate any applicable law, interfere with other affiliates or falsify information in connection with referrals through the Links or the generation of Commissions or exceed your permitted access to the Affiliate Program. Such acts include, but are in no way limited to, using automated means to increase the number of clicks through the Links or completion of any required information, using spyware, using stealware, cookie-stuffing and other deceptive acts or click-fraud. Gameberry Inc. shall make all determinations about fraudulent activity in its sole discretion.
We have the right to withhold payment if in violation of the following:
Non-approved creatives found with print/link can result in non-compensation of the placement. Use of misleading creatives with not approved conditions, if found, will result in non-compensation of the publisher.
You hereby represent and warrant that this Agreement constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms and that you have the authority to enter into this Agreement. Subject to the other terms and conditions of this Agreement, Gameberry Inc. represents and warrants that it shall not knowingly violate any law, rule or regulation which is applicable to Gameberry Inc.’s own business operations or Gameberry Inc.’s proprietary products or services.
In addition to any notice permitted to be given under this Agreement, we may modify any of the terms and conditions of this Agreement at any time by providing you with a notification by email. The changes will become effective ten (10) business days after such notice. If the modifications are unacceptable to you, you may terminate this Agreement without penalty solely on the account of such termination within such ten (10) business day period. Your continued participation in this Affiliate Program ten (10) business days after a change notice has been posted will constitute your acceptance of such change. In addition, Gameberry Inc. may change, suspend or discontinue any aspect of an Offer or Link or remove, alter, or modify any tags, text, graphic or banner ad in connection with a Link. Affiliate agrees to promptly implement any request from Gameberry Inc. to remove, alter or modify any Link, graphic or banner ad that is being used by Affiliate as part of the Affiliate Program.
You acknowledge that you have read this Agreement and agree to all its terms and conditions. You have independently evaluated the desirability of participating in the Affiliate Program and each Offer and are not relying on any representation, guarantee or statement other than as set forth in this Agreement or on the Affiliate Program.
Affiliate hereby agrees to indemnify, defend and hold harmless Gameberry Inc. and Clients and their respective subsidiaries, affiliates, partners and licensors, directors, officers, employees, owners and agents against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys’ fees and costs) based on
Gameberry Inc. hereby agrees to indemnify, defend and hold harmless Affiliate and its subsidiaries, affiliates, partners, and their respective directors, officers, employees, owners and agents against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys’ fees and costs) based on a claim that Gameberry Inc. is not authorized to provide you with the Links.
THE AFFILIATE PROGRAM AND LINKS, AND THE PRODUCTS AND SERVICES PROVIDED IN CONNECTION THEREWITH, ARE PROVIDED TO AFFILIATE “AS IS”. EXCEPT AS EXPRESSLY SET FORTH HEREIN, GAMEBERRY INC. EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. GAMEBERRY INC. DOES NOT WARRANT THAT THE AFFILIATE PROGRAM OR LINKS WILL MEET AFFILIATE’S SPECIFIC REQUIREMENTS OR THAT THE OPERATION OF THE AFFILIATE PROGRAM OR LINKS WILL BE COMPLETELY ERROR- FREE OR UNINTERRUPTED. GAMEBERRY INC. EXPRESSLY DISCLAIMS ANY LIABILITY FOR ANY ACT OR OMISSION OF A CLIENT OR THEIR PRODUCTS OR SERVICES. GAMEBERRY INC. DOES NOT GUARANTEE THAT AFFILIATE WILL EARN ANY SPECIFIC AMOUNT OF COMMISSIONS.
IN NO EVENT SHALL GAMEBERRY INC. BE LIABLE FOR ANY UNAVAILABILITY OR INOPERABILITY OF THE LINKS, PROGRAM WEB SITES, TECHNICAL MALFUNCTION, COMPUTER ERROR, CORRUPTION OR LOSS OF INFORMATION, OR OTHER INJURY, DAMAGE OR DISRUPTION OF ANY KIND BEYOND THE REASONABLE CONTROL OF GAMEBERRY INC.. IN NO EVENT WILL GAMEBERRY INC. BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PERSONAL INJURY / WRONGFUL DEATH, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS OR LOSS OF BUSINESS OPPORTUNITY, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT GAMEBERRY INC. HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. GAMEBERRY INC.’S CUMULATIVE LIABILITY TO AFFILIATE, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE AMOUNTS PAID TO AFFILIATE BY GAMEBERRY INC. IN COMMISSIONS DURING THE SIX (6) MONTHS IMMEDIATELY PRIOR TO SUCH CLAIM.
Affiliate shall be responsible for the payment of all attorneys fees and expenses incurred by Gameberry Inc. to enforce the terms of this Agreement. This Agreement contains the entire agreement between Gameberry Inc. and Affiliate with respect to the subject matter hereof, and supersedes all prior and/or contemporaneous agreements or understandings, written or oral. Affiliate agrees that Gameberry Inc. shall not be subject to or bound by any Affiliate insertion order or online terms and conditions that amend, conflict with or supplement this Agreement, regardless of whether Gameberry Inc. “clicks through” or otherwise indicates its acceptance thereof. Affiliate may not assign all or any part of this Agreement without Gameberry Inc.’s prior written consent. Gameberry Inc. may assign this Agreement at any time with notice to Affiliate. This Agreement will be binding on and will inure to the benefit of the legal representatives, successors and valid assigns of the parties hereto. Any accrued payment obligations shall survive the termination of this Agreement. Except as set forth in the “Modifications” section above, this Agreement may not be modified without the prior written consent of both parties. If any provision of this Agreement is held to be void, invalid or inoperative, the remaining provisions of this Agreement shall continue in effect and the invalid portion of any provision shall be deemed modified to the least degree necessary to remedy such invalidity while retaining the original intent of the parties. Each party to this Agreement is an independent contractor in relation to the other party with respect to all matters arising under this Agreement. Nothing herein shall be deemed to establish a partnership, joint venture, association or employment relationship between the parties. No course of dealing nor any delay in exercising any rights hereunder shall operate as a waiver of any such rights. No waiver of any default or breach shall be deemed a continuing waiver or a waiver of any other breach or default.
This Agreement and the ensuing relationship between the Parties shall be construed in accordance with and governed by Canadian law. Any dispute, controversy or claim arising out of or in connection with this Agreement, or the breach, termination, or invalidity thereof, shall be finally settled by courts of Seoul, South Korea
By submitting and application to Affiliate Program, you affirm and acknowledge that you have read this Agreement in its entirety and agree to be bound by all of its terms and conditions. If you do not wish to be bound by this Agreement, you should not submit an application to Affiliate Program. If an individual is accessing this Agreement on behalf of a business entity, by doing so, such individual represents that they have the legal capacity and authority to bind such business entity to this Agreement.
Effective Date of Data Protection May 25, 2018
We refer to the Publisher Terms located at http://junggglex.com/terms (“Agreement”) which You have accepted to avail Gameberry’s advertising services as a publisher (referred as “You” or “Publisher”).
Until 25 May 2018, the Data Protection Act 1998 (the “DPA”) is the key piece of legislation governing data protection. The General Data Protection Regulation (the “GDPR”), is a new piece of legislation which will largely supersede the DPA on 25 May 2018. The GDPR will then apply to the processing that is carried out under the Agreement for any Personal Data related to Data Subjects in the European Union (“EU”).
The GDPR requires data processing contracts – such as the Agreement – to contain additional provisions regulating the processing Personal Data of Data Subjects based on EU. Therefore, the parties agree to add the data protection Segment, set out below to the Agreement with effect from 25 May 2018 (the “Variation Date”). These terms of the data protection Segment shall be deemed to be incorporated within the Agreement.
This data protection Segment makes reference to the “Model Contract Clauses”, produced by the European Commission, which are incorporated into this data protection Segment as if they had been set out in full. The full legal name for the Model Contract Clauses is: “The EU-controller to Non-EU/EEA processor model contractual clauses annexed to European Commission Decision C(2010)”.
Except as set out in this data protection Segment, the Agreement and any other agreements already in place between us shall continue in full force and effect; In the event of any conflict or inconsistency between this data protection Segment and the terms and conditions of the Agreement, this data protection Segment shall prevail; and To the extent that this data protection Segment does not address project-specific data mechanics or specific details relevant to data processing already set out in the Agreement (such as a particular type or frequency of data transfer), those project specific mechanics will remain in place, save that they shall be interpreted to give full effect to the provisions of this data protection Segment and the GDPR.
This data protection Segment (including the Model Contract Clauses, particularly at clauses 9 and 11.3) and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation (a “Claim”) shall be governed by and interpreted in accordance with the law of England and Wales. The parties irrevocably agree that the courts of England and Wales have exclusive jurisdiction to settle any Claim.
Please accept or sign and return the data protection Segment to acknowledge your agreement of these terms.
If you do not accept these terms, we will discontinue any EU user related transactions with your applications/mobile websites. Additionally, please do not share any EU user data with us. However, if you continue to use our services, you will be deemed to have accepted these terms.
“Controller”, “Data Subject”, “Personal Data”, “Processor” “Processes/Processing” shall each have the meanings given in the applicable Data Protection Legislation.
“Data Protection Legislation” means the European Union’s General Data Protection Regulation (2016/679), the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2003/2426) and all applicable laws and regulations relating to the processing of personal data and privacy as amended, re-enacted, replaced or superseded from time to time, including, where applicable, the mandatory guidance and codes of practice issued by the United Kingdom’s Information Commissioner.
“Personal Data Breach” means any breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to any Personal Data transmitted, stored or otherwise processed. “Publisher” is the organization to whom this letter is addressed.
Each party acknowledges that:
Gameberry shall Process the Personal Data for the purposes of (a) optimizing mobile online advertising campaigns across its ad network whether owned, operated or controlled by Gameberry including but not limited to the programmatic channel; (b) interest based targeting of Gameberry ad campaigns or other survey based services; (c) data-targeted ad inventory forecasting; (d) providing its customers, partners and relevant third parties with data as part of campaign reporting and performance (e) enrichment, creation of audience profile/segments including sharing with data partners for enrichment purposes. Publisher further acknowledges that Gameberry may need to transfer Personal Data outside of EU in the context of Processing.
It is acknowledged that both Parties are under certain recordkeeping obligations under the Data Protection Legislation, and agree to provide the other Party with all reasonable assistance and information required by the other Party to satisfy such record keeping obligations.
In the event of any Personal Data breach (actual or suspected) involving the Publisher or a sub-Processor, the Publisher shall (at no cost to Gameberry):
Joint Controller Requirements: The Parties shall, in their respective capacities as joint Controllers:
Publisher Requirements: Publisher shall:
GAMEBERRY DATA ANALYTICS
The Publisher acknowledges that Gameberry:
MODEL CONTRACT CLAUSES
When You are a Controller, the Model Contract Clauses require us to set out more detail about what data You are transferring to us and why, as well as how we keep that data secure. We have set this out in the sections below. Description of our data processing for You
In the event when either party Processes Personal Data on behalf of the other the parties will execute appropriate data processing agreement. Description of security measures
Restriction of access to buildings, data centers and server rooms as necessary.
Adequate locks on all doors.
Monitoring of unauthorized access.
Written procedures for employees, contractors, and visitors covering confidentiality and security of information.
Restricting access to systems depending on the sensitivity/criticality of such systems.
Use of password protection where such functionality is available.
Maintaining records of the access granted to which individuals.
Ensuring prompt deployment of updates, bug-fixes and security patches for all systems.
The illustrative indemnity contained in the Model Contract Clauses is deemed deleted.
You will not provide any unsolicited data related to Data Subjects with us.