Terms and Conditions
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY. BY CLICKING THE “SUBMIT” BUTTON AT THE AFFILIATES.MACKEEPER.COM SIGN UP PAGE, AND BY SUPPLYING KROMTECH WITH ALL INFORMATION REQUIRED TO CREATE AN ACCOUNT FOR THE PROGRAM, THE AFFILIATE AGREES THAT HE HAS READ AND UNDERSTOOD THESE TERMS AND CONDITIONS AND CONFIRMS TO BE LEGALLY RESPONSIBLE FOR ANY VIOLATION OF THESE TERMS AND CONDITIONS.
For the purpose of these Terms and Conditions (hereinafter “T&C”), the following terms shall have their respective definitions:
a. “Confidential Information”
a.i. Any trade secret, know-how, invention, software program, product(s), service(s), application(s), documentation, schematic, procedure, contract, information, knowledge, data, process, technique, design, drawing, program, formula or test data, work in progress, engineering, manufacturing, marketing, financial, sales, prices, supplier, customer, employee, investor, third party relationships or business information, whether in oral, written, graphic or electronic form;
a.ii. Any non-public business information, including, without limitation, personnel data; correspondence with governmental agencies; historical customer information and data; historical cost information such as budgets and operating expenses and capital costs; and projected capital additions and operating cost information;
a.iii. Any document, diagram, photograph, drawing, computer program or other communication that is either conspicuously marked "confidential", or is known or reasonably should have been known by the Party in possession to be confidential; and
a.iv. Any advice, information, exhibits, documentation or any other information that a Party reasonably expects would be protected by attorney-client privilege or work product doctrine or other applicable privileges.
b. “Affiliate’s Partner” or Partner – any party who works with Affiliate to generate traffic in order to cover Affiliate’s need in supply.
c. “Promotional materials” – any web page, creative or other materials that are being used by Affiliate or Affiliate’s Partners to advertise current advertising offers provided by Kromtech.
d. “Tail payment” – the commission that Affiliate receives for the sale of Kromtech’s product that occurred after the Affiliate stopped sending traffic to the campaign upon which these T&C had been concluded.
1. BASIC AGREEMENT
Upon acceptance by Affiliate of T&C and advertising materials guidelines (Annex 1) contained herein and continued compliance herewith, the Affiliate shall be allowed to participate in the Kromtech Affiliate Program (the "Program") wherein Kromtech shall enable the Affiliate to use certain intellectual property of Kromtech at the Affiliate's Websites for marketing and promotional purposes and as consideration for any traffic directed by the Affiliate to Kromtech through the Affiliate's marketing and promotional efforts and that converts into revenue to Kromtech, Kromtech shall pay the Affiliate compensation, as set forth in section 3 below.
2. RIGHTS OF THE AFFILIATE
Kromtech grants the Affiliate with each of the following:
2.1 The non-exclusive right to refer, direct or send visitors or users of the Affiliate's Website(s) to websites owned, controlled and/or operated by Kromtech ("Kromtech Websites").
2.2 A limited non-exclusive, non-transferable and revocable license to access and download promotional banners and other promotional materials created and owned by Kromtech for use at the Affiliate Websites for exclusive purpose of advertising, marketing or promoting Kromtech Websites. The Affiliate may post as many of these banners and other materials on its site(s) as desired.
2.3 Kromtech owns and retains all rights, title and interest in and to its intellectual property, copyright, trademarks, patents, and in the files, promotional banners and other material provided by Kromtech, including all images and software therein. Upon termination of the Affiliate's participation in the Program and/or termination of these T&C, the grant of right and license set forth in subsection 2.2 above shall cease and terminate, and the Affiliate shall immediately remove all Kromtech files, banners, ads, and any and all other Kromtech intellectual property, copyrighted material, trademarks, and patents, if any, from the Affiliate's Websites.
2.4 The Affiliate is not authorized and shall not change Kromtech's names, file names, trademarks, design logos, banners, ads or other material for any purpose other than as expressly set forth herein or in any modification to these T&C by Kromtech.
2.5 The Affiliate specifically acknowledges and agrees that it shall not modify, edit, resize or otherwise change any of Kromtech's names, file names, trademarks, design logos, banners, ads or other material for any purpose whatsoever. The Affiliate further acknowledges and agrees that any such change or changes will be a material breach of these T&C and shall constitute an infringement of Kromtech's copyrighted and/or trademarked intellectual property.
2.6 The Affiliate agrees and covenants to notify Kromtech of all Uniform Resource Locator (URL) a.k.a. "Website" locations where it has published Kromtech's names, file names, trademarks, design logos, banners, ads or other material pursuant to these T&C, specifically identifying the names, file names, trademarks, design logos, banners, ads or other material posted at each URL. The Affiliate further acknowledges and agrees that failure to notify Kromtech of these locations constitutes a material breach of these T&C and each such posting of which Affiliate fails to notify Kromtech shall constitute an infringement of Kromtech's copyrighted and/or trademarked intellectual property.
2.7 The Affiliate hereby agrees NOT to promote, advertise or distribute MacKeeper by means of Google Network and/or AdWords without prior written approval of Kromtech Affiliate Manager.
Note: Upon violation of paragraph 2.7 Affiliate is obliged to pay out a compensation in the amount equal to the losses inflicted due to the violation including but not limited to the expenses caused by a lawsuit addressed to Kromtech. The minimal amount of compensation that Affiliate is obliged to pay to Kromtech in case of violation of paragraph 2.7 of these T&C is $10,000 (ten thousand US Dollars) as a compensation fee.
3. FORBIDDEN AFFILIATE BUSINESS PRACTICES
3.1 Misleading advertising practices
Affiliate is not allowed to:
(i) Assign a value to free products resulting in an inflated product value.
(ii) Run pop-up or pop-under ads that are designed as software warnings, that contain misleading information that could be perceived as information that scares and/or motivates a user to complete an action based on knowingly false statement.
3.2 Deceptive domain registrations
Affiliate is not allowed to register a domain which might be infringing copyrights and trademark rights of a competitive product or service.
3.3 Copyright infractions
Affiliate is not allowed to use any third-party trademarks, copyrights, branded terms, URL etc., in any promotional method, unless the proper trademark and copyright notices are made on relevant promotional materials and rights-holder has given specific permission to do so.
3.4 Fraudulent product reviews
Affiliate is not allowed to:
(i) Post a product review without disclosing the true author and affiliation.
(ii) Post or direct a third party to post a disparaging review for a competitive product and/or service.
3.5 Other contradictory business practices
Affiliate is not allowed to:
(i) Emailing to users who have not explicitly opted in to a mailing list.
(ii) Refusing to honor an unsubscribe request within 10 business days.
Note: Upon violation any of paragraph 3 Kromtech has the right to terminate these T&C and Affiliate is obliged to pay out a compensation to Kromtech in the amount equal to the losses inflicted due to the violation including but not limited to the expenses caused by a lawsuit addressed to Kromtech. The minimal amount of compensation that Affiliate is obliged to pay to Kromtech in case of violation of paragraph 3 of these T&C is $10,000 (ten thousand US Dollars) as a compensation fee.
4. PAYMENT OF COMPENSATION
Kromtech will pay the Affiliate for providing Web traffic to Kromtech Target Page(s) from a banner or a link posted at the web page(s) of the Affiliate's site(s) for sales generated by that traffic. For details on the current commission rates for the sales generated, contact Kromtech representatives.
4.1 All payments are made in U.S. dollars. Payments are processed on the 1st and 16th of each month. Payment will only be sent if the amount due to the Affiliate is at least US $100. Payment will be carried over from week to week until the amount due to the Affiliate is at least US $100. A "Pay Period" is defined as a two-week period commencing on the 1st and 16th day of each given month at 12:00 AM Pacific Standard Time and ending two weeks later on the 15th /last day of the month at 11:59 PM Pacific Standard Time. If the Affiliate is a foreign, non-United States resident participant, the Affiliate may request Kromtech to withhold payment until the amount due is US $300 or greater, so as to incur lower banking fees.
4.2 The Affiliate agrees, by accepting and negotiating payment received from Kromtech, that the payment received is payment in full for any and all advertising space and traffic for the Pay Period to which the payment applies.
4.3 A "referral" from the Affiliate Website entitling the Affiliate to a "commission" is defined as follows:
(i) A person who has been directed to an authorized website owned, controlled or operated by https://affiliates.mackeeper.com/ ("Kromtech Website") through the use of a hypertext transfer link residing at the Affiliate's Website in the form of a banner ad or other promotional link which automatically connects any person that clicks on the banner ad or other promotional link to a Kromtech Website, and which banner ad or other promotional link has been supplied to the Affiliate as part of the Program; and
(ii) That person who, after having been directed to a Kromtech Website through the use of the hyperlink banner ad or other promotional link supplied to the Affiliate residing at the Affiliate's Website, has been converted into a subscriber or member of a Kromtech Website.
4.4 "Webmaster Referral" Program: Kromtech will also compensate the Affiliate for sales generated by other affiliates referred to Kromtech by the Affiliate. When a new webmaster affiliate signs up for the Program through the approved Webmaster Referral link provided to the Affiliate by Kromtech, the Affiliate will receive a commission on each sale generated by that referred webmaster affiliate. For details on the current commission rates for the Kromtech Webmaster Referral program, contact Kromtech representatives. Affiliates are prohibited from "referring" their own accounts/sales, as such "self-referrals" will result in termination of all Program accounts operated by the Affiliate.
5. RESTRICTIONS ON PAYMENT OF COMPENSATION
5.1 Affiliate is not entitled to receive any commission from the moment Affiliate violates any term of these T&C.
5.2 Affiliate is not entitled to a commission for any Kromtech subscriber sent or referred to a Kromtech Website in violation of terms of these T&C, or for any Kromtech subscriber that does not fall within the terms of paragraphs 5.4 (i) & (ii).
5.3 The Affiliate is not entitled to a commission from Kromtech for any subscription which Kromtech determines is the result of potential fraudulent activity. Kromtech shall have the right, in its sole and absolute discretion, to expand or modify what it determines to constitute potential fraudulent activity. Without limiting the foregoing, potential fraudulent activity includes without limitation, the following circumstances or activities:
(i) The subscriber used or attempted to use a credit card number that is in a "negative database";
(ii) There are multiple subscriptions from a single Internet Protocol (IP) address within a one (1) month period of time;
(iii) There are sequential or multiple subscriptions under different names, or variations of the same name using the same credit card number, or sequential names or patterns of names using different credit card numbers;
(iv) There is a pattern of "bursting subscriptions" characterized by numerous subscriptions from a website in a relatively short time span (the "bursting period"), where there has been history of few subscriptions from that website before or after the bursting period.
(v) There are sequential or multiple attempts to register or subscribe from a credit card using the same "bin number" and sequential or multiple number strings are used to complete the credit card number.
(vi) There are subscriptions from an IP address that matches the IP address the Affiliate used when establishing an account in the Program, or an IP address that is otherwise known to be used by the Affiliate.
5.4 Kromtech has the right to deny or withhold payment from the Affiliate, and to terminate the Affiliate from the Program, if there is an abnormal number of chargebacks or cancellations of software orders or subscriptions which have been referred to Kromtech through the Affiliate's Websites. Kromtech shall determine, in its sole and absolute judgment, what constitutes an abnormal number of chargebacks or cancellations of software orders or subscriptions.
5.5 In the event campaign between Affiliate and Kromtech is stopped Kromtech does not remit any “tail payments” whatsoever to Affiliate.
6. TERM AND TERMINATION
6.1 These T&C is not for any specific term or duration of time. The Affiliate may terminate these T&C at any time, for any reason or for no reason; and, these T&C and/or the Program may be terminated by Kromtech, in its sole and absolute discretion, at any time, for any reason or for no reason.
6.2 The Affiliate shall terminate participation in the program by notifying Kromtech by E-mail at email@example.com of the Affiliate's intent to terminate participation in the Program.
6.3 In the event these T&C is terminated, the Affiliate shall be entitled to any unpaid commissions or referral fees earned prior to the date and hour of termination. The Affiliate shall not be entitled to receive any commissions or referral fees for any "referrals" delivered or received after the date and time of termination.
6.4 If these T&C is terminated due to the Affiliate's breach of any portion of these T&C, Kromtech reserves the right to withhold any amounts then due and owing.
7. AFFILIATE'S RESPONSIBILITIES AND DUTIES
7.1 The Affiliate shall only use and promote at the Affiliate Websites advertising banners, links, and other promotional materials, approved by Kromtech. In case Affiliate independently creates advertising materials for promotion of MacKeeper (according to Annex 1 Guidelines), these materials must be reviewed and approved by Kromtech’s Compliance dept. before they will be used for promotional purposes by Affiliate. The Affiliate hereby agrees NOT to promote, advertise or distribute MacKeeper using advertising materials that were not primarily approved by Kromtech’s Compliance dept. Affiliate agrees that he is fully responsible for the activities of its partners.
Note: Upon violation of paragraph 7.1 Affiliate is obliged to pay out a compensation to Kromtech in the amount equal to the losses inflicted due to the violation but not limited to the expenses caused by a lawsuit addressed to Kromtech. The minimal amount of compensation that Affiliate is obliged to pay to the Kromtech in case of violation of paragraph 7.1 of these T&C is $10,000 (ten thousand US Dollars) as a compensation fee.
7.2 The Affiliate shall not use or employ any form of mass unsolicited electronic mailings, newsgroup postings, IRC postings, adware, spyware, malware marketing or any other form of "spamming" as a means of promoting the Affiliate Websites or for the purpose of directing or referring users to any websites owned, operated or controlled by Kromtech. The Affiliate further acknowledges and agrees that Kromtech has the right to immediately, and without notice, terminate the Affiliate’s participation in the Program if Kromtech, in its sole and absolute discretion, concludes that the Affiliate has engaged in the use of any form of mass unsolicited electronic mail solicitations, newsgroup postings, password selling or trading, warez, IRC posting, adware, spyware, malware marketing or any other form of "spamming". NOTE: KROMTECH HAS ZERO TOLERANCE FOR SPAMMING. IF THE AFFILIATE SPAMS, PARTICIPATION IN THE PROGRAM WILL BE TERMINATED, THE AFFILIATE WILL BE BARRED FROM FUTURE PARTICIPATION IN THE PROGRAM AND ALL FUNDS OTHERWISE DUE TO THE AFFILIATE WILL BE FORFEITED TO KROMTECH. AFFILIATES WISHING TO SEND TRAFFIC TO KROMTECH SITES VIA ELECTRONIC MAIL PROMOTIONS MUST DO SO IN COMPLIANCE WITH THE CAN-SPAM ACT, THE FTC's FINAL RULE REGARDING SEXUALLY EXPLICIT COMMERCIAL EMAIL AND THE TERMS LISTED BELOW: The initially viewable area of the email must include the following: a. clear and conspicuous notice that the email message is for an advertisement or solicitation b. clear and conspicuous opt-out instructions and link c. functioning return email address or other Internet-based mechanism to opt out; d. clear and conspicuous valid physical postal address of the email sender. "Clear and conspicuous" means that the recipient must be able to actually read the text without altering it. One cannot, for example, place the physical address (or other required information) in a color that cannot be distinguished from the background, or in a font size that is too small to read. If you have any questions concerning the Kromtech mailing terms, please contact firstname.lastname@example.org.
7.3 Except as expressly authorized by Kromtech in writing, the Affiliate shall not copy, reproduce, alter, modify, change, broadcast, distribute, transmit or disseminate any banners or other promotional or advertising materials provided by Kromtech pursuant to these T&C in whole or in part, in any form or manner, at any time or anywhere in the World.
7.4 The Affiliate shall ONLY use Promotional Pictures and Images provided by Kromtech to promote sites that are included in the Program. For purposes of these T&C Promotional Software, Pictures and Images means any of the executable files, images and/or videos provided in zip file format on https://affiliates.mackeeper.com/.
7.5 All content displayed at any website containing Kromtech banners or links, and all content displayed at any website to which the Affiliate provides third-party links, must comply with all local laws and community standards. Accordingly, the Affiliate shall not include, or link to, any of the following within a website that contains Kromtech banners or links, or directly or indirectly link any of the following content or material to any Kromtech website through any hyperlinks maintained or created at the Affiliate's Websites:
(i) Any material deemed by Kromtech to be threatening, abusive, hateful, defamatory, libelous, slanderous, scandalous or injurious to the reputation of any person or entity;
(ii) Any material which constitutes an infringement, misappropriation or violation of any person's intellectual property rights including without limitation, copyrights, trademarks, rights of publicity, patent rights, personal property rights, privacy rights or any other intellectual property rights; or
(iii) Any program, file, data stream or other material that contains viruses, worms, "Trojan horses" or any other destructive feature, regardless whether the damage is intended or unintended, which may cause damage to any computer equipment, loss or corruption of data or programs or inconvenience to any person.
8. REPRESENTATIONS AND WARRANTIES
The Affiliate hereby represents and warrants each of the following:
8.1 That if the Affiliate is an individual person, he/she is over the age of eighteen (18) years;
8.2 That if the Affiliate is an entity (i.e., corporation, limited liability company, etc.), all individuals employed or associated with Affiliate in any way are over the age of eighteen (18) years; and
8.3 That the individual who provides information pursuant to the Program and accepts these T&C has full, lawful power and authority to enter into and to carry out the terms of these T&C.
9. RIGHTS OF KROMTECH
9.1 Kromtech shall have the right, in its sole and absolute discretion, to terminate the Program and any and all Program Benefits relating to the Affiliate's participation in the Program at any time and may do so with or without cause.
9.2 Kromtech shall have the right, in its sole and absolute discretion, to change or modify the Program without limitation. If at any time Kromtech changes or modifies the Program, the Affiliate shall have the right to withdraw and terminate participation in the Program.
9.3. Kromtech reserves the right to request for Audit of all materials and documents that are being used in advertising with corresponding Affiliate in case if:
(i) Kromtech finds confirmed information about advertising of products or services by the Affiliate that is being or has been done with violation of paragraph 3 of these T&C.
9.4. Upon Kromtech’s request the Affiliate is obliged to provide all needed information in order to conduct an audit. The information required includes but is not limited to: all banners, landing pages, pre-landers, websites, installers etc. used to promote Kromtech’s product. The audit may be conducted in two ways:
(i) by a third party that had been primarily chosen by a mutual agreement between Kromtech and Affiliate. Such audit shall be maintained solely at the expense of the Affiliate;
(ii) by Kromtech and its Compliance dept., at the expense of Kromtech.
10. NO PARTNERSHIP, JOINT OR COLLABORATIVE VENTURE
10.1 Nothing contained in these T&C shall create or be deemed to create a partnership, joint venture or other business combination or venture of any kind between the Affiliate and Kromtech, its subsidiaries, affiliated entities, successors or assigns; nor shall any term contained in these T&C constitute or create any agency or employment relationship between the Affiliate and Kromtech, its subsidiaries, affiliated entities, successors or assigns.
10.2 Kromtech has no control over nor ownership interest in the Affiliate or the Affiliate's Websites, and the Affiliate has no financial or other interest in Kromtech, its subsidiaries, affiliated entities or any property owned by such entities, except as expressly set forth herein.
11. NO CONTENT CONTROL, MONITORING OR SUPERVISION
11.1 Kromtech does not monitor, supervise or review content contained at the Affiliate's Websites. Kromtech is not responsible for any content appearing or otherwise distributed on, at or in association with the Affiliate's Websites that is provided by the Affiliate or independent third parties.
11.2 Kromtech has no direct or indirect control over the content of performances or services, the manner of performances or services, or the time or duration of provision of performances or services by the Affiliate on, at or in association with the Affiliate's Website except as specifically set forth in these T&C.
12. NO WARRANTY OR GUARANTY
Kromtech makes no guaranty of any kind with respect to the Program or materials provided by, through or in association with the Program, and all materials are provided to the Affiliate "as is", and use of the Program and associated materials is solely at the Affiliate's risk. Kromtech disclaims all warranties, either express or implied including, but not limited to, warranties of merchantability and fitness for a particular purpose with regard to the Program and any and all materials of every kind supplied to the Affiliate as part of this Program.
13. MUTUAL CONFIDENTIALITY
Both parties acknowledge that in the course of dealing with each other they will be exposed to “Confidential Information,” as defined above, of the other party, its customers, providers, and vendors, and that maintaining the confidentiality of that information, both during and after the termination of these T&C, is a critical part of their relationship. Both parties acknowledge that any use of Confidential Information, except to promote the best interests of the other party and its customers, providers and vendors, or the unauthorized disclosure of Confidential Information to third parties, would cause serious harm and would be a breach of these T&C. Both parties specifically agree to keep confidential the terms of these T&C, payment amounts, and payment terms. The parties agree to safeguard and protect confidentiality of each other’s Confidential Information and to follow appropriate procedures when sharing any information with outside accounting firms, legal counsel, state and federal tax services, or other necessary persons for the daily operation of their respective businesses. The parties agree to give prior notification before releasing any information of the other, to any government or law enforcement agency that requests such information or in response to any subpoena or other legal process. Both parties acknowledge and agree that any breach of this confidentiality provision may cause irreparable harm to the other and both parties agree that the non-breaching party may seek an immediate injunction against any actual or threatened breach of this provision without the necessity of posting a bond. Upon termination of this relationship both parties agree to immediately return or destroy all Confidential Information of the other that is in their possession. These T&C to maintain confidentiality will survive the termination of these T&C for a period of five (5) years.
14. NO GUARANTY OF SUCCESS OR PROFITABILITY
Kromtech cannot guarantee or promise the Affiliate any level of success or profitability due to the Affiliate's participation in the Program. The Affiliate has unilaterally entered into an Internet service business and all risk of loss, cost and expense of the Affiliate doing business shall be borne solely by the Affiliate.
15. FORCE MAJEURE
Neither party shall be liable for any loss or delay, nor be considered in breach of these T&C, due to an act of God, fire, natural disaster, terrorist act, strike or other labor stoppage, declaration of war or military intervention, computer system/server failure, network failure, governmental action, or any other cause outside the control of the parties and which cannot be avoided by the exercise of due care.
16. LIMITATION OF LIABILITY
Kromtech, its subsidiaries, affiliated entities, employees, independent contractors, agents, representatives, assigns and successors shall not be liable to the Affiliate, or any other person or entity, for any direct or indirect losses, injuries or incidental, consequential or other damages (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES OR ANY OTHER PECUNIARY LOSS) with regard to any link to any Kromtech website, or arising from or in connection with these T&C or the use of the Kromtech Program materials, or due to any mistakes, omissions, delays, errors, interruptions in the transmission, or receipt of Kromtech's services, content or Program materials, including without limitation any losses due to server problems or due to incorrect placement of HTML.
The Affiliate shall indemnify and hold Kromtech, its subsidiaries, affiliates, licensors, content providers, service providers, employees, agents, officers, directors, and contractors and any successor-in-interest or assign (the "Indemnified Parties") harmless from any breach of these T&C by the Affiliate, including any use of Program materials other than as expressly authorized in these T&C. The Affiliate agrees that the Indemnified Parties shall have no liability in connection with any such breach or unauthorized use, and the Affiliate agrees to indemnify for any resulting loss, damage, judgment, award, cost, expense, and attorneys' fees of the Indemnified Parties. The Affiliate shall also indemnify and hold the Indemnified Parties harmless from and against any and all claims brought by third parties arising out of the Affiliate's use of the information accessed from a Kromtech Web site.
18. TRANSFER OR ASSIGNMENT
18.1 These T&C shall not, under any circumstances, be transferred or assigned by the Affiliate to any other person or entity, and any attempted transfer or assignment of a membership shall be void.
18.2 Kromtech may, at any time, in its sole discretion and without prior notice to the Affiliate, transfer or assign these T&C to an affiliated or non-affiliated person or entity.
These T&C are subject to change or modification by Kromtech at any time and changes shall become effective upon notice to the Affiliate by e-mail, posting at or via hyperlink to a Kromtech Website, or by mail. The Affiliate may not alter, delete, add or change or edit any of these terms and conditions, and any such attempted alteration shall be void and of no effect.
20. NOTICES TO KROMTECH OR AFFILIATES
Notices from a Kromtech Website to Affiliates may be given by means of electronic messages (email), by general posting at the Website, or by conventional mail. Communications from the Affiliate to Kromtech may be made by electronic messages (email) or conventional mail, unless otherwise specified in these T&C. All notices to Kromtech sent by electronic mail shall be to email@example.com. Notices from Kromtech shall be deemed delivered when sent by Kromtech to the Affiliate; notices of changes or modifications to these T&C shall be accepted by the Affiliate upon the first use by the Affiliate of the Materials provided in the Program after such notice was sent; and, such acceptance of a change or modification shall be deemed to relate back to the date such change or modification was originally sent by Kromtech.
21. CHOICE OF LAW, ARBITRATION AND ATTORNEY'S FEES
These T&C shall be governed by the laws of the Great Britain (English Law). In the event of any dispute arising under these T&C, the parties agree to submit such dispute, without recourse to the ordinary courts of law, to arbitration administered by the International Centre for Dispute Resolution® in accordance with its International Dispute Resolution Procedures, as modified by the ICDR® Online Protocol for Manufacturer/Supplier Disputes then in effect (please find the International Dispute Resolution Procedures and the ICDR Online Protocol for Manufacturer/Supplier Disputes at www.icdr.org). Any final determination of an arbitrator shall be final and binding upon the parties. With further respect to any arbitration arising hereunder, the substantially prevailing party in any such action shall be entitled to its costs and reasonable attorneys' fees. The failure of any party hereto to insist upon strict performance of any covenant or terms and conditions contained herein, or to exercise any option or right, shall not be construed to be a waiver or relinquishment of any such option or right, or of any other covenants or agreements, but the same shall be and remain in full force and effect.
If any provision of these T&C is held to be invalid or unenforceable, in any respect, such invalidity or unenforceability shall not affect or impair the validity or enforceability of the remaining provisions of these T&C, but, to the contrary, these T&C shall be construed as if such invalid or unenforceable provision had never been contained herein.
23. ENTIRE AGREEMENT, HEADINGS, AND NEUTRAL CONSTRUCTION
These T&C and any changes or modifications thereto by Kromtech and accepted by the Affiliate expresses the entire agreement between the parties regarding the Affiliate's participation in the Program, and all materials directly and indirectly related thereto, superseding and negating any prior or contemporaneous agreements, whether written or oral. There are no representations, agreements, arrangements or undertakings relating to the matters addressed which are not fully expressed herein. The headings are for convenience only and shall not be construed to give any substantive meaning to the agreement between the parties. These T&C shall be construed neutrally and as the commemoration of the mutual assent of both parties rather than for or against either party.
24. REVIEW BY ATTORNEY
Kromtech strongly advises that the Affiliate reviews these T&C with an attorney before acceptance of its terms so the Affiliate is fully apprised of all its rights, duties and obligations under these T&C. The Affiliate acknowledges that nothing herein and no statement by Kromtech or any employee, representative, agent or other person associated with Kromtech has in any way prevented or inhibited the Affiliate from seeking such independent legal advice prior to entering into these T&C. The Affiliate hereby acknowledges and agrees that the terms of these T&C are reasonable and fair; all terms have been fully disclosed in writing, and the Affiliate has been given reasonable opportunity to seek the advice of independent counsel with respect to these T&C and all transactions associated herewith.
25. ACCEPTANCE AND EXECUTION
By CLICKING THE "SUBMIT" BUTTON at the https://affiliates.mackeeper.com/ Sign Up Page, and by supplying Kromtech with all information required to create an account for the Program, the Affiliate has accepted all of the terms and conditions set forth herein above.
Advertising Material Guidelines
These Advertising Material Guidelines ("Guidelines") are binding upon any Affiliate partner (“Affiliate)” who enters into an agreement with Kromtech Alliance Corp. (the "Company") for the promotion of MacKeeper (the "Product") and wants to create promotional materials for the Product independently. Kromtech grants an Affiliate permission to create advertising materials according to the Guidelines provided hereinafter.
Company may change or update the Guidelines from time to time subject to its sole discretion including for the purpose of addressing and properly reflecting the terms, conditions and guidelines of relevant third parties.
NOTE: According to paragraph 7.1. of the Terms and Conditions, Affiliate shall only use and promote at the Affiliate Websites Company approved advertising banners, links, and other promotional materials. The Affiliate hereby agrees NOT to promote, advertise or distribute the Product using independently created and not approved by the Company advertising materials.
Upon violation of paragraph 7.1 Affiliate is obliged to pay out a compensation to Kromtech in the amount equal to the losses inflicted due to the violation but not limited to the expenses caused by a lawsuit addressed to Kromtech. The minimal amount of compensation that Affiliate is obliged to pay to the Kromtech in case of violation of paragraph 7.1 of these Terms and Conditions is $10,000 (ten thousand US Dollars) as a compensation fee.
In these Guidelines the following terms shall have their respective definitions:
“Advertising Material(s)” means graphic, information, images, text, video, artwork, images, links to third party sites or services and other material and content used by Affiliate in order to promote MacKeeper (“Product”) through Affiliate’s advertising space.
“Prohibited Activity” means any illegal or abusive activity including but not limited to the following activities: (a) using deceptive or false creative and/or representations and/or notifications to end users in order to initiate a program’s installation without the end user’s awareness, knowledge or consent; (b) using automated or direct installation of a program or using any automated program intended to generate non-human clicks (this may include: using scripts, web crawlers, spiders, bots or other similar non-human programs that result in installation of a Product or any other program without the end user’s knowledge); (c) hacking, interfering, uninstalling or disabling any third party content, application, widget or any program or any part thereof ; (d) generate, use, distribute or propagate viruses, worms, Trojan horses, or any other malicious code, file or program; (e) use the end user's device for purposes that are unwarranted and unexpected by the end user (such as consuming bandwidth or computer resources, spamming or obtaining personal information from an end user’s device); (f) take any action that may harm the security of end user’s device or the privacy of the end user, or materially interfere with or disrupt web navigation or browsing; (h) using any misleading, deceptive or fraudulent practice whatsoever with respect to Advertising Material, the software or end user’s system.
“Prohibited Content” means any content that is: (a) false, deceptive, misleading, infringing upon any applicable law, fraudulent, libelous, defamatory, abusive, violent, prejudicial, obscene, sexually explicit (including any false diet and/or health content); (b) adult content (including pornographic material); (c) excessively profane, racist, ethnically offensive, threatening, infringing, excessively violent, discriminatory, hate-mongering or otherwise objectionable content; (d) defame, abuse, or threaten physical harm to others; (e) any type of harmful applications or components which intentionally create or exploit any security vulnerabilities in an end user's device, including without limitation: viruses, spyware, malware, Trojan horses, spamware, worms or any other malicious code or conduct; (f) advocate or facilitate violence of any kind; (j) targeted to minors; (h) any other content that would otherwise be considered as a criminal offense or could give rise to a civil liability, or considered questionable or illegal in any fashion according to applicable laws or that is infringing upon third party right.
Company requires that all Company’s Affiliates comply with the guidelines set forth herein and obligates its upstream partners (if applicable) to comply with these guidelines as well.
RESPONSIBILITIES AND DUTIES OF AFFILIATE
1. Affiliate will make sure that all advertising content generated discretionary by Affiliate and/or its upstream partners will be at all times compliant with applicable laws, rules, regulations and industry best practices and standards, including but not limited to any false advertising laws, fair competition, privacy and data collection, intellectual property and any other rules, limitations and restrictions that are relevant to the distribution and display of advertisements or commercial offers, or to the promotion, sell or facilitation of products and services (collectively or in separate “Laws”). Affiliate further represents that it employs all necessary monitoring and reviewing procedures to achieve such compliance.
2. Without limiting the aforesaid, Affiliate represents and warrants that:
2.1. Advertising Material will not falsely be associated with or attributed to a third party or third party content, including without limitation by using false representations, endorsements or sponsorships;
2.2. Advertising Material that promotes or sells services or products that are limited for sale, promotion or facilitation by applicable Laws, will comply with such Laws and provide end users with all required disclosures, disclaimers, notices and alerts, including age limitations and any other notification required by law or industry standards;
2.3. No Advertising Material will: (a) infringe upon any third party intellectual property rights, right of privacy, publicity or any other right; (b) contain, include, promote or facilitate Prohibited Content or Prohibited Activity; (c) impersonate others, including any system alert (e.g. “you’re missing a plugin”, “your computer is about to crash” when those statements are not true); (d) require an end user to complete a survey or to disclose personally identifiable information (PII) in order to be operated or uninstalled (as applicable); (e) contain, promote or facilitate gambling, Forex or binary options where such content is prohibited by law or without a due and valid license;
2.4. No Advertising Material will require an end user to participate in any online activity nor will it incentivize an end user to click or interact with the content using a misleading, fraudulent or inaccurate representation or incentivize automated click or automated interaction with that content;
2.5. Affiliate will not collect, transmit or use personally identifiable information about end users without reasonable end user consent;
2.6. Affiliate will not do any of the following: (a) take control of an end user’s computer by deceptively accessing, hijacking or otherwise using the computer’s modem or Internet connection or service and thereby causing damage to the computer or causing the end user, or a third party defrauded by such conduct, to incur charges or other costs that are not authorized by the end user; (b) deliver Advertising Material that an end user cannot close or otherwise disable without turning off the computer or closing all other sessions of the Internet browser for the computer; (c) using rootkits or other software that are typically used to hack into a computer and gain administrative-level access for unauthorized use of a computer;
2.7. Affiliate will not mislead the end user or use any other deceptive practices including, but not limited to: (a) misrepresent that installing a software or providing login and password information is necessary for security or privacy reasons unrelated to the software itself, or that installing software is necessary to open, view or play a particular type of content online or offline (e.g., cannot falsely state software is necessary for accessing web site); (b) Induce the end user to install, download or execute software by misrepresenting the identity or authority of the person or entity providing the software to the end user; (c) otherwise engage in activities related to these requirements that are fraudulent, misleading, unlawful, or violate the rights of third parties.