CLEVERBRIDGE PERFORMANCE MARKETING PUBLISHER TERMS

 

 

THESE CLEVERBRIDGE PERFORMANCE MARKETING PUBLISHER TERMS
(the “Terms”) of CLEVERBRIDGE GMBH, with its principal place of business at Gereonstrasse
43-65, 50670 Cologne, Germany (“cleverbridge”) shall govern the use of the
Performance Marketing Platform by you (“Publisher”).

RECITALS

 

WHEREAS, cleverbridge operates a Performance Marketing Platform that allows
Clients to offer Publishers incentives for marketing Client Products; and

WHEREAS, Publisher desires to use the Performance Marketing Platform and to
market Client Products; and

WHEREAS, Publisher acknowledges that the conditions of such marketing will be
agreed upon separately between Client and Publisher;

NOW, THEREFORE, for good and valuable consideration, receipt
of which is hereby acknowledged, the parties hereto agree as follows:

AGREEMENT

1.          
Definitions.

The following capitalized terms will have the meanings
ascribed to them below.

1.1        
“cleverbridge Performance Marketing Program”

means the activities of cleverbridge with regards to the procurement
and facilitation of Performance Marketing Services.

1.2        
“Client”

means the supplier of products or services that the
Publisher wishes to promote through the use of Links.

1.3        
“Client Product”

means any product manufactured by or service provided by
Client.

1.4        
“Confidential Information”

means the terms of this Agreement and all documentation and
information, including techniques, algorithms, and processes, and technical,
business, and marketing information, whether designated or marked as
“proprietary” or “confidential” or that Publisher should reasonably consider to
be confidential.

1.5        
“Data Breach”

means any serious interruption of operations, suspicion of
breaches of (personal) data protection, or unintentional release of (personal)
data to an untrusted or unauthorized environment, including by Publisher’s
employees, Publishers, agents or any third parties, or any other irregularity
in processing personal data or any other circumstances under which Publisher is
required to provide a notification under applicable law.

1.6        
“Event”

means any action by a User as defined under the Publishing
Conditions.

1.7        
“Identifiable Natural Person”

means a person who can be identified, directly or
indirectly, in particular by reference to an identifier such as a name, an
identification number, location data, an online identifier or to one or more
factors specific to the physical, physiological, genetic, mental, economic,
cultural or social identity of that natural person, or User behavior (including
previous history and interests recorded by cookie).

1.8        
“Link”

means the link supplied to Publisher in the PMP for
inclusion on Publisher's site, which when clicked on by a User, identifies (1)
that the User has been referred by Publisher; and (2) that Publisher
participate in the cleverbridge Performance Marketing Program.

1.9        
“Materials”

means any graphical images, hypertext links, intellectual
property or other materials provided by Client to Publisher for the purpose of
performing Performance Marketing Services.

1.10      
 “Performance
Marketing Platform” or “PMP”

means the portal provided by cleverbridge that Publisher can
access to identify and interact with Clients and to manage data related to Performance
Marketing Services.

1.11      
“Performance Marketing Services”

means any online marketing and promotion activities for
Client Products using technical means, including Links, provided through the
PMP.

1.12      
“PMP Account”

means the account of Publisher in the PMP that can be used
to manage Publish

1.13      
“Publishing Agreement”

means the legally binding agreement between Client and
Publisher with regards to Publishing Conditions and Performance Marketing
Services.

1.14      
“Publisher Commission”

means the commission to be paid by Client to Publishers for
each Event

1.15      
“Publishing Conditions”

means any condition set by Client in the PMP for a Publisher
for the Provision of Performance Marketing Services, including but not limited
to Events, Materials, Publisher Commission, and payout schedule for Publisher
Commission

1.16      
“User”

means an individual consumer who purchases, applies for,
enquires about or otherwise takes action in respect of Advertiser's products
and services.

1.17      
“User Information”

means any information relating to an identified or
Identifiable Natural Person who is a User.

2.          
The cleverbridge Performance Marketing Program

2.1        
Account Application and Approval.

After sign-up to the Performance Marketing Program,
participation in the Performance Marketing Program is subject to acceptance by
cleverbridge. Client may, in its sole discretion, approve or reject any
signed-up Publisher for no reason or any reason, including if cleverbridge
considers, in its sole discretion. If Publisher has been rejected, cancelled or
terminated from the cleverbridge Performance Marketing Program subsequent to
application for admission and/or admission to the cleverbridge Performance
Marketing Program, any future application for admission will be rejected.

2.2        
Use of PMP Account, Username and Password.

Publisher will not disclose any individual PMP account
information, including passwords, to any third party. Publisher is solely
responsible for the loss, theft, or unauthorized disclosure of its individual
account information, including usernames or passwords. Publisher shall
immediately notify cleverbridge in writing of any known or suspected loss,
theft, or unauthorized disclosure of any of its individual account information.

2.3        
Grant of Rights.

Publisher grants to cleverbridge a non-exclusive,
royalty-free, and worldwide license to use the Publisher’s name, branding
and/or logos for the purpose of promoting the Publisher to Clients and
advertising the cleverbridge Performance Marketing Program.

2.4        
Correct Information.

Publisher represents and warrants that all information it
provides to cleverbridge or a Client, including all information in any
application to cleverbridge or a Client, Publisher’s physical address,
Publisher’s VAT ID or TIN, and any other information inputted or updated in the
cleverbridge Publisher Center, is true and correct information. Publisher will
update all such information in the cleverbridge Publisher Center immediately if
the information changes or Publisher discovers an error. cleverbridge may
suspend or terminate Publisher’s account without notice if it determines, in
its sole discretion, that Publisher has provided incomplete or inaccurate
information.

2.5        
No Physical Presence in Certain States of the
USA

Publisher represents and warrants that it does not have and
will not maintain or create a physical presence in the following States of the
United States: Connecticut and Pennsylvania. cleverbridge may add additional
states to this list and terminate this agreement if Publisher has a physical
presence in such state.

2.6        
Non-Solicitation.

During the term of this Agreement, the Publisher will not
enter into any direct or indirect agreement with any Client which concerns the
referral of (potential) Users and/or would in any manner circumvent, avoid or
compete with the cleverbridge Performance Marketing Program or initiate or
further such a (third party) practice in any way.

3.          
Obligations of cleverbridge

3.1        
Operation of PMP.

cleverbridge will provide Publisher access to and maintain
the Performance Marketing Platform to facilitate Publishing Agreements and
their execution. As part of the PMP, cleverbridge provides a tracking tool for the
purpose of tracking Events that is the only tool used by Client, Publisher and
cleverbridge to track User Information related to the performance of the
cleverbridge Performance Marketing Program. No other trackings of User
Information shall be allowed or accepted within the cleverbridge Performance
Marketing Program.

3.2        
Disputes between Publisher and Client.

Any dispute between Publisher and a Client will be addressed
and resolved by the Publisher and the Client. cleverbridge may at its sole
discretion, but is not required to, mediate or assist in the resolution of any
such dispute.

4.          
Client-Publisher Relationship

4.1        
Application for and Acceptance by Client

Within the PMP, Publisher will apply separately for each
Client whose Client Products the Publisher wishes to promote. Client may, in
its sole discretion, approve or reject any application. Clients are entitled to
withdraw the approval at any time in its sole discretion for any reasons.

4.2        
Performance Marketing Services.

Upon approval of the application by Client(s), the Publisher
may promote Client Products for those Clients only in accordance with the terms
of this Agreement and any Publishing Agreements.

4.3        
Publishing Agreements.

Publisher acknowledges that by performing Performance
Marketing Services for a Client, Publisher accepts the Publishing Conditions set
by that Client and enters into a binding legal Publishing Agreements with Client
. cleverbridge is not a party to any such agreement between Clients and
Publishers and is under no circumstances responsible for any action of Client
or Publisher that leads to the conclusion or termination of such an agreement,
or any act or omission of Client or Publisher under such an agreement.

4.4        
Materials and Intellectual Property Rights.

Client is solely responsible for providing Materials to
Publisher. cleverbridge will not be liable for any infringement of third party
rights through Materials. Publisher will respect and not infringe any and each
of Client’s intellectual property rights.

5.          
PMP Usage and Performance Marketing Services

Publisher will only use the PMP Account in full compliance
with this Agreement. Publisher will be responsible for all usage and activity
on the PMP Account and in relation to these Performance Marketing Publisher
Terms.

5.1        
Means of Promotion

Publisher may only use Links for the promotion Client
Products that have been explicitly provided by Client for this purpose.

5.2        
Publisher Content and Intellectual Property

(a)        
Publisher is responsible for the
development, display, operation, and maintenance of any content shown together
or made available with or otherwise associated with Client Products or Links,
including website content, designs, videos, citations, images, fonts, styles,
visual effects, or information, when that content in any way originates from
Publisher or any third party, and that such content will conform to all
applicable laws, regulations, and best industry practices at all times.

(b)        
Publisher will only use intellectual
property in any way associated with Client Products or the Links if and to the
extent it has all necessary third party rights and consents required for such
use. Publisher will in no way directly or indirectly, infringe any intellectual
property rights, including patents, copyrights, name, trademarks, service
marks, trade dress, trade names, web designs, logos and other designation of
origin, of the Client, cleverbridge, or any third parties. Publisher represents
and warrants that no claim of infringement of any intellectual property right
has been threatened or asserted, and that no such claim is pending or
threatened against Publisher, Publisher’s Publishers, or against any entity or
person from which Publisher obtained third party intellectual property rights.
Publisher may not copy any icons, buttons, banners, graphics files, or content
contained in the Link, including removing or altering any copyright or
trademark notices, except as agreed by Client.

5.3        
Prohibited Means of Promotion

Publisher will not perform Performance Marketing Services

(a)        
on websites that promote (a) material with
explicit sexual content, violence; (b) race, sex, gender, religion,
nationality, physical disability, sexual orientation and/or age discrimination;
(c) illegal activities; or contains (d) materials infringing or supporting
third parties to infringe intellectual property or any other applicable laws;
(e) the term “cleverbridge” or the Client’s or Client Product’s name or
derivations thereof; (f) typing errors in the domain name used by Publisher; or
(g) is in any way illegal, damaging, libelous, obscene, and/or aggressive;

(b)        
by placing Links in newsgroups, on message
boards, banner networks, e-counters, chatrooms, guestbooks, internet relay chat
channels, or through any similar Internet resources or locations.

(c)        
by using pop-ups, pop-unders, exit pages, or
any other techniques covertly leading or guiding Users to trigger Events,
unless explicitly approved by cleverbridge in writing prior to usage.

(d)        
by using unsolicited email or include Links
in unsolicited email.

 

5.4        
Misrepresentations and Deceptive Practices.

Publisher may not promote Client Products in a manner that
intentionally or unintentionally misleads Users, conveys information that is
contrary to fact, or that provides information not in compliance with all applicable
laws and this Agreement. Publisher may not promote Client Products through
scare-ware or any other misleading sales tactics. Publisher will not identify
or describe itself as an authorized dealer, agent, sales representative, or in
any other way imply an association with cleverbridge that is inaccurate in any
way. Publisher will make no claims, representations, or warranties, express or
implied, on behalf of cleverbridge, to prospective or actual Users or others.

5.5        
Malicious or Hidden Code.

Publisher will not in any way, directly or indirectly,
utilize any link implementation or engage in other activities which may include
any computer “virus,” back door, fire bomb, trojan horses, worm, or any other
similar harmful, malicious, or hidden programs, code, or data.

5.6        
Artificial Traffic and other Prohibited Actions.

(a)        
Publisher may not generate or contribute to
the generation of artificial traffic to or through the Links or any Client
website by any means, including by using any device, program, robot, bot, inline
frames, hidden frames,or redirect.

(b)        
Publisher may not use, unless generated in
the PMP or otherwise provided by cleverbridge:

(i)    
automatic redirection to a Link’s target or

(ii)  
any automatic method for saving or use of
any cookies or tracking.

(c)        
Publisher may not advertise Client Products
employing cookie stuffing techniques, including pop-ups, frames, images,
JavaScript, stylesheets, or any type of technology which attempts to intercept
traffic to or from any other website.

(d)        
Publisher may not replace, intercept,
interfere with, hinder, disrupt, or otherwise alter the access, viewing, or
usage of the Client’s website or any other site associated with the Links.

(e)        
Publisher may not use outbound, inbound,
solicited, or unsolicited calling techniques to promote or sell Client
Products.

5.7        
Restricted and Embargoed Countries.

Exports and re-exports of the Client Products may be subject
to certain export control laws, rules, and regulations (collectively, “Export
Regulations”), including Export Regulations of the European Union (EU) and the
United States of America. Publisher will comply with all applicable Export
Regulations at all times. Publisher represents and warrants that Publisher is
not situated in a country that is subject to such Export Regulations and that
Publisher is not subject to such Export Regulations.

5.8        
Data Privacy.

(a)        
Publisher will not act in any manner that
would violate cleverbridge’s privacy policy, available at:
https://www.cleverbridge.com/?scope=opprivacy. Publisher acknowledges and
accepts the policies and practices of cleverbridge outlined in such privacy
policy with respect to information regarding Publisher.

(b)        
Publisher will adhere at all times to the
Regulation (EU) 2016/679 of the European Parliament and of the Council of 27
April 2016 on the protection of natural persons with regard to the processing
of personal data and on the free movement of such data, and repealing Directive
95/46/EC (General Data Protection Regulation, GDPR), the Directive on Privacy
and Electronic Communications 2002/58/EC, (from its entry into force) the
Regulation of the European Parliament and of the Council concerning the respect
for private life and the protection of personal data in electronic
communications and repealing Directive 2002/58/EC (Regulation on Privacy and Electronic
Communications), the Controlling the Assault of Non-Solicited Pornography And
Marketing (CAN-SPAM) Act of 2003, the Federal Trade Commission’s Telemarketing
Sales Rules, the Canadian Anti-Spam law, and to all other laws and regulations
applicable in the jurisdictions in which Users reside.

5.9        
Data Breach

(a)        
Publisher shall immediately inform and
notify cleverbridge in case of a Data Breach.

(b)        
Publisher shall promptly investigate any
Data Breach and take any and all effective measures to identify its root
cause(s) and prevent any (partial) recurrence of such Data Breach. As
information is collected or otherwise becomes available, unless prohibited by
applicable law, Publisher will provide cleverbridge with a description of the
Data Breach, the type of data that has been or may be subject to the Data
Breach, and any and all other information cleverbridge may reasonably request
concerning the affected persons, including Users or other third parties.

5.10      
Compliance with Laws.

Publisher will comply at all times with all applicable laws,
regulations, rules, directives, and best industry accepted standards and
practices.

6.          
Publisher Payments.

Payments to Publisher will be made as agreed upon in the
Publishing Agreements and in the Performance Horizon or Cuelinks Terms and
Conditions, as applicable.

7.          
Confidentiality.

7.1        
Confidential Information.

Publisher acknowledges that, as a result of this Agreement,
it may gain access to certain Confidential Information of cleverbridge or
Client.

7.2        
Protection of Confidential Information.

During the term of this Agreement and for a period of five
(5) years thereafter, Publisher agrees (a) to hold any cleverbridge or Client
Confidential Information in strict confidence, using the same degree of (but no
less than reasonable) care and protection that it exercises with its own
information of a similar nature; (b) not to directly or indirectly disclose or
otherwise make available any cleverbridge or Client Confidential Information to
a third party; and (c) not to copy or use cleverbridge or Client Confidential
Information for any purpose other than as necessary to fulfill Publisher’s
obligations or exercise its rights under this Agreement. Publisher will
disclose Confidential Information only to its employees with a need to know
such information in order to fulfill Publisher’s obligations hereunder and who
have been informed of and have agreed to abide by the provisions of this
section. In addition, Publisher is permitted to disclose cleverbridge or Client
Confidential Information to the extent that such disclosure is approved in
writing by the affected party, or is required by law or order of a court or
similar judicial or administrative body, provided that the Publisher notifies
the affected party of such required disclosure promptly and in writing and
cooperates with the affected party in any lawful action to contest or limit the
scope of such required disclosure.

7.3        
Exclusions.

The obligations of this Section 7 will not apply to
Confidential Information if such information: (a) is publicly available prior
to or at the time of disclosure, or becomes publicly available through no
improper act of the Publisher or any third party; or (b) was, prior to
disclosure, rightfully known to the Publisher (other than in connection with
this Agreement) without any confidentiality restriction.

8.          
Limitations on cleverbridge’s Liability.

8.1        
No Service Warranty.

cleverbridge does not warrant or guarantee the performance
or availability of the Performance Marketing Platform, the Links, Any Client
websites, or any related links or linked websites.

8.2        
Types and Amount of Damages.

In no event shall cleverbridge be liable to Publisher for
indirect, incidental, special, or other consequential damages, including
without limitation damages for loss of profits, data, or use, incurred by
Publisher or any third party, arising out of or related to this Agreement,
whether in an action in contract, tort, or otherwise, even if cleverbridge has
been advised of the possibility of such damages. cleverbridge shall not be
liable for any costs or damages incurred by the Publisher or any other party
arising out of this Agreement unless caused directly by the gross negligence or
intentional misconduct of cleverbridge in fulfilling its obligations hereunder.
Any obligation or liability of cleverbridge shall be limited to an amount equal
to the aggregate Publisher Payments actually received by Publisher in the three
months’ period preceding the event giving rise to liability. This limitation is
cumulative and shall not be increased by the existence of more than one
incident or claim.

8.3        
Client and Client Products.

cleverbridge shall not be liable to Publisher for the
actions or omissions of Clients Or Client Products and makes no representations
or warranties as to features or the performance of Client Products or the
performance, or lack thereof, of any duties or obligations of Clients. In
particular, cleverbridge shall not be liable for any losses or damages incurred
by the Publisher, any contractual obligations or liabilities (if any) created by
an agreement or dealings between Publisher and Client, or any payment
obligations arising out of a Publishing Agreement.

8.4        
Basis of the Bargain.

The parties agree that the limitations of liability set
forth in this Section shall survive and continue in full force and effect
despite any failure of consideration or of any exclusive remedy. The parties
acknowledge that the terms of this Agreement have been determined, and the
Agreement entered into, in reliance upon these limitations of liability and
that all such limitations form an essential basis of the bargain between the
parties.

9.          
Indemnification.

Publisher will indemnify, defend, and hold harmless
cleverbridge and its Publishers, directors, officers, employees, agents,
Clients, and Users from any and all claims, losses, liabilities, damages, costs
and expenses, including attorney’s fees, expert witness fees, and dispute
resolution costs, directly or indirectly arising from or relating to any actual
or alleged (a) breach of or inaccuracy in any representations or warranties
made in this Agreement, (b) breach of this Agreement, or (c) breach of or
inaccuracy in any representations or warranties made by Publisher in any
Publishing Agreement between Client and Publisher

10.        
Suspension, Termination, and Amendments.

10.1      
Suspension.

cleverbridge reserves the right to suspend a Publisher’s
account at any time in order to investigate an alleged violation of this
Agreement. Publisher acknowledges and agrees that during any suspension, (a)
Publisher will cease use of Links, (b) Publisher will not earn payments, and
(c) payments to Publisher will not be made.

10.2      
Termination for Convenience.

The parties may terminate this Agreement at any time for any
or no reason with immediate effect by giving the other party notice.

10.3      
Effect of Termination.

Upon termination of this Agreement, The Publisher must
immediately stop using the Performance Marketing Platform and remove any Links
in its direct or indirect control. Publisher will not earn Commissions or
receive payments after termination of this Agreement. Sections 2.1,
3.2,
4.3,
4.4,
5.2,
7,
8,
9,
11,
shall survive termination of this Agreement.

10.4      
Amendments.

cleverbridge reserves the right to amend this Agreement or
the Performance Marketing Program at any time. Publisher will be given notice
of any modification or change of this Agreement. If Publisher does not agree to
such modifications or changes, Publisher must terminate this Agreement and
cease using the Performance Marketing Platform and any and all Links
immediately. Publisher’s continued participation in the cleverbridge
Performance Marketing Program in any way, including use of the Performance
Marketing Platform or any of the Links will constitute Publisher’s acceptance
of the modifications to the Agreement.

11.        
General.

11.1      
Notice.

(a)        
Notice
to cleverbridge.

Any notice, approval, authorization, consent, or other
communication required to be delivered to cleverbridge under this Agreement
must be in writing and will be deemed properly delivered and given on receipt
(or when delivery is refused) if delivered (a) by hand, or (b) by courier or
express delivery service, or (c) by postage prepaid first-class mail to the
address set forth below:

Cleverbridge GmbH

Gereonstrasse 43-65

50670 Cologne, Germany

Attention: Legal

(b)        
Notice
to Publisher.

Any notice, approval, authorization, consent, or other
communication required to be delivered to Publisher will be deemed properly
delivered either (a) immediately upon sending an email to the email address
provided by Publisher in the cleverbridge Publisher Center, or (b) fourteen
(14) days after being posted in the cleverbridge Publisher Center.

11.2      
Governing Law and Venue.

This Agreement and any action related thereto will be
construed in accordance with and governed in all respects by the laws of
Germany without regard to any conflicts of law principles that would result in
the application of laws of any other jurisdiction. Publisher expressly agrees
to submit to the exclusive personal jurisdiction, and that the exclusive venue
for disputes related to this Agreement shall be the state and federal courts of
Cook County, Illinois. The United Nations Convention on Contracts for the
International Sale of Goods will not apply to this Agreement.

11.3      
Assignment.

Publisher may not assign or transfer any rights under this
Agreement or delegate any obligations or duties under this Agreement without
cleverbridge’s prior written consent. Any attempted assignment or delegation
without such consent will be null and void.

11.4      
Severability.

If any provision of this Agreement is unenforceable, such
provision will be changed and interpreted to accomplish the objectives of such
provision to the greatest extent possible under applicable law and the
remaining provisions will continue in full force and effect.

11.5      
Independent Contractors.

This Agreement does not establish any partnership, joint
venture, employment, or other relationship between the parties, except that of
independent contractors.

11.6      
Construction.

The section headings in this Agreement are for convenience
of reference only, will not be deemed to be a part of this Agreement, and will
not be referred to in connection with the construction or interpretation of
this Agreement. Any rule of construction to the effect that ambiguities are to
be resolved against the drafting party will not be applied in the construction
or interpretation of this Agreement.

11.7      
Waiver.

cleverbridge’s failure to exercise or delay in exercising
any right, power or privilege under this Agreement shall not operate as a
waiver; nor shall any single, continued or partial exercise of any right, power
or privilege under this Agreement preclude any other or further exercise
thereof.

11.8      
Force Majeure.

If a Party’s inability to perform this Agreement, or any
obligation hereunder, is the result of an Act of God (fire, flood, epidemic, or
earthquake); war or act of terrorism, including chemical or biological warfare;
governmental acts, orders, or restrictions; or any other reason where failure
to perform is beyond the reasonable control, and is not caused by the
negligence, intentional conduct, or misconduct of the defaulting party, and the
defaulting party has exercised all reasonable efforts to avoid or remedy such
force majeure, then the party so affected, upon giving prompt notice to the
other party, shall be excused from such performance to the extent of such
prevention, restriction or interference.

11.9      
Entire Agreement.

This Agreement contains the entire understanding of the
parties relating to the subject matter hereof and supersedes all prior or
contemporaneous agreements, communications, and understandings between the
parties (whether written or oral) relating to the subject matter hereof.
Between and in relation to the parties to this Agreement, it supersedes and
prevails, if any of its contents or provisions conflict with any agreement
between Publisher and Client or any other third party.

Advertiser Terms & Conditions

Publishers cannot be in conflict with any Cuelinks Terms & Conditions.

Publishers must provide a website URL or concrete promotional method when signing up for the Aomei Performance Marketing Program.

Publishers must present a professional appearance that aligns with Aomei's brand image.

Search Campaign Rules

Protected SEM Bidding Keywords:

Publishers are prohibited from bidding on any Aomei branded keywords for search marketing campaigns, examples of keywords that must be negative matched:

Aomei, Aomeitech, Aomei Backupper, Aomei Partition Assistant, Aomei Software, aomeitech.com, MultCloud, multcloud.com

Bidding on Aomei trademark terms, including any variations or misspellings, is strictly prohibited.

Coupons and Promotional Codes

Publishers may only use coupons and promotional codes that are provided exclusively through the performance marketing program or have been sent to them.

Discount values advertised must not exceed discount values presented by the merchant

Non-commissionable Items

Publishers may only promote products that are part of their commission settings. Any products promoted outside of this will not be credited for.

Backup discs and other physical fulfillments are not commissionable

Violation of Terms

If a publisher is responsible for any fraudulent activities, they will be rejected from the program

A publisher will be rejected from the program if found promoting: