These terms and conditions ("Standard Terms") govern the provision of services by iPicnic OÜ
Lootsi tn 11, Tallinn city, Harju county, Estonia, 10151 Reg # 14360328. “You” being a PUBLISHER, agree and accept to these Standard Terms by signing an insertion order (“IO”), by registering at affshark.com or affshark.biz or by otherwise using the iPicnic OÜ platform. These Standard Terms and each IO are collectively referred to as the "Agreement". In case of discrepancies between these Standard Terms and the terms in the IO, the terms in the IO shall prevail.
1. The Services
Service: PUBLISHER will display the Advertisement and perform lead generation services described in the attached Insertion Order. "Advertisement" means the advertisement, including any copy including questions and or text ads, graphic, sound, video, programming code and/or other content that comprises the advertisement, as well as the websites to which an advertisement is linked if applicable. iPicnic OÜ hereby grants to PUBLISHER during the Contract Period a non-exclusive, royalty-free, worldwide right and license by all means and in any media, whether now known or hereafter discovered, to use, reproduce, distribute, publicly perform, publicly display and digitally perform such Advertisement and all its constituent parts.
1.1. Details for available advertisement campaign will be specified in separate advertisement campaign proposals (“Offer Card”). Details will specify Lead Cap Limit, payout, offer descriptions, restrictions (among described in this T&C), events and creatives, as well as testing and tracking descriptions.
2. Qualified Lead Definition (Qualified Leads)
2.1. Qualified Leads are prospects that meet iPicnic OÜ marketing criteria and who provide their complete contact data. PUBLISHER will be paid on a delivered per lead basis defined as when a user agrees through a pre approved opt-in method to be contacted. In the case of any dispute between the parties should relay on iPicnic OÜ statistics. iPicnic OÜ defines non-valid leads as leads generated by means of any device, program, or robot, manually created in bad faith with the direct intent to artificially inflate commissions payable to the PUBLISHER; leads with suspicious registration data like usernames or email addresses or similar IP-addresses or IP-address from other countries than the country advertised, phone numbers, as well as leads with suspicious behavior that shows that the lead profiles do not represent real persons. iPicnic OÜ can mark leads during term of 60 days after actual subscription as non-valid in case of direct user complaint (e.g. user were forces to subscribe (forced subscription), user was subscribed without action (auto subscription), user was subscribed without seeing landing page (forced auto subscription), multiple attempts to subscribe one user using iframe or similar methods) to our call center. In case of violation iPicnic OÜ has rights to define whole traffic source invalid (using sub id's either source by itself).
2.2. The PUBLISHER is required to pass the affiliate ID through the parameter “l1” or “l2” in order to keep track of sources.
2.3. Extra restrictions you may find in addition 1 of this agreement.
3. Creative Changes:
Editing of iPicnic OÜ creatives is strictly prohibited, without prior written approval from iPicnic OÜ Creative includes, but is not limited to, text ads, graphic ads, from and subject line, any copy associated with the campaign including survey questions and answers. Any changes to Creative, without prior written permission will result in the loss of payment of Leads.
4.1 iPicnic OÜ will actively monitor PUBLISHER activity using a combination of its proprietary software and third party monitoring services. It is the obligation of PUBLISHER to prove to iPicnic OÜ that they are not committing fraud. iPicnic OÜ will hold PUBLISHER payment in ‘Pending Status’ until PUBLISHER has satisfactorily provided evidence that PUBLISHER is not defrauding the system. iPicnic OÜ flags accounts that: Have click-through rates that are much higher than industry averages and where solid justification is not evident; Have only click programs generating clicks with no indication by site traffic that it can sustain the clicks reported; Have shown fraudulent leads as determined by our clients or Use fake redirects, automated software, and/or fraud to generate clicks or leads. If PUBLISHER is unable to prove to iPicnic OÜ that PUBLISHER is not committing fraud, PUBLISHER will forfeit its entire commission for all programs and PUBLISHER’s account will be terminated. iPicnic OÜ reserves sole judgment in determining fraud. Publisher agrees at its own expense, to indemnify, defend and hold harmless iPicnic OÜ in case if violation by PUBLISHER of Terms and Conditions or restrictions discussed on by-campaign basis, will cause any punitive damages from carrier or service provider side.
PUBLISHER will invoice iPicnic OÜ on a monthly basis (unless different highlighted in IO) at the payout rates reflected in the Insertion Order. The invoice will reflect delivery of final qualified lead numbers that are based upon numbers reported by iPicnic OÜ to PUBLISHER pursuant to the terms of this Agreement.
6. General Obligations and Warranties
6.1. The PUBLISHER warrants that - PUBLISHER will not fraudulently add leads or clicks or inflate leads or clicks by fraudulent traffic generation (as determined solely by iPicnic OÜ, such as pre-population of forms or mechanisms not approved by iPicnic OÜ); - PUBLISHER will not attempt in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the site tags, source codes, links, pixels, modules or other data provided by or obtained from iPicnic OÜ that allows iPicnic OÜ to measure ad performance and provide its services. PUBLISHER will not engage in or promote any illegal activities of any kind in association with this Agreement.
6.2. The PUBLISHER shall - NOT make use of Spyware or Spamming. - NOT PROVIDE Incentivized Traffic, Adware or Virtual Currency Traffic. This includes but is not limited to any spoofing, redirecting or trafficking from adult related websites in an effort to gain traffic or websites that are point, lottery, coupon or rewards based and encourage users to click on Advertisements or use Advertisements to generate revenue for users to win points, get rewards, or other any other incentive (unless it’s iPicnic OÜ landing page). - NOT PROVIDE leads generated from content, email or websites that are not subject matter related to the category of the Advertisement represented. Such websites must be content-based (not a list of links or advertisements) and must not infringe on any personal, intellectual property or copyrights. This can be waived only by specifically providing the name of the proposed website to iPicnic OÜ
- be able to provide the name of the Website where the lead was generated. This information is only delivered to iPicnic OÜ upon request, but MUST be made available in case there is a dispute or problem with the lead.
- not provide inappropriate content, which includes, but is not limited to, content that is placed in any illegal contexts including without limitation illegal file sharing or other copyright infringing pages, pages promoting or otherwise displaying child pornography, violence or any other indecent, libelous or defamatory contents, o promotes violence or the use of illegal substances or activities such as how to build a bomb, counterfeiting money and software pirating o promotes illegal or unethical activity, racism, hate, "spam", mail fraud, gambling, sweepstakes, pyramid schemes, or illegal advice o is otherwise prohibited by the applicable law or o will bring iPicnic OÜ and/or its associated Merchant negative publicity.
- at no time engage in, disseminate, promote or otherwise distribute any Advertisement through the use of contextual media, specifically downloadable software (also called adware, pop-up/pop-under technologies, plug-ins, and other names as applicable). - only target persons over the age of 18 years.
7.1. The terms of this Agreement are confidential and shall not be disclosed to any third party except where required by law. All information submitted by end-user customers pursuant to this Agreement is proprietary to and owned by iPicnic OÜ Such customer information is confidential and may not be disclosed by iPicnic OÜ or PUBLISHER. In addition, PUBLISHER acknowledges that all non-public information, data and reports received from iPicnic OÜ hereunder or as part of the services hereunder is proprietary to and owned by iPicnic OÜ (“Confidential Information”).
7.2. PUBLISHER agrees not to disclose the terms of this Agreement, including the CPA or RevShare value, to any third party without the express written consent of iPicnic OÜ, and that such constitutes Confidential Information.
7.3. All Confidential Information is or may be protected by copyright, trademark, trade secret and other intellectual property law, as appropriate. PUBLISHER agrees not to reproduce, disseminate, sell, distribute or commercially exploit any proprietary or Confidential Information in any manner.
7.4. These non-disclosure obligations shall survive the termination of this Agreement for a period of five (5) years. This section does not bind iPicnic OÜ or PUBLISHER in the event such information is required to be disclosed by operation of law. If a request is made of PUBLISHER to disclose such information, PUBLISHER must immediately inform iPicnic OÜ via written notice sufficiently promptly to allow iPicnic OÜ to seek a protective order prior to the time commanded to produce or disclose such Confidential Information, and PUBLISHER agrees to cooperate in whatever way iPicnic OÜ requests to attempt to protect that information from disclosure by operation of law. In case of reverse situation iPicnic OÜ must immediately inform PUBLISHER via any available source of communication.
7.5. Subject to prior approval by PUBLISHER, iPicnic OÜ may publicly announce its contractual relationship with PUBLISHER, which includes being on a listing of iPicnic OÜ PUBLISHERS in general corporate materials and in industry standard press releases.
8. DISCLAIMER OF WARRANTIES:
iPicnic OÜ PROVIDES ITS SITES AND THE SITES OF ITS AFFILIATES AND PARTNERS, AND ALL ITS SERVICES AND THE SERVICES OF ITS AFFILIATES AND PARTNERS, AS PERFORMED HEREUNDER, ON AN "AS IS," “WHERE IS” AND "AS AVAILABLE" BASIS. iPicnic OÜ DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
9. LIMITATIONS OF LIABILITY:
IN NO EVENT SHALL iPicnic OÜ BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE OR STRICT LIABILITY), OR FOR INTERRUPTED COMMUNICATIONS, LOSS OF USE, LOST BUSINESS, LOST DATA OR LOST PROFITS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. UNDER NO CIRCUMSTANCES SHALL iPicnic OÜ BE LIABLE TO PUBLISHER OR ANY THIRD PARTIES FOR AN AMOUNT GREATER THAN THE AMOUNTS PAID BY iPicnic OÜ TO PUBLISHER DURING THE PRIOR THREE MONTHS.
Each party agrees to indemnify, defend and hold harmless the other party and its employees, agents, officers and directors, against any and all claims, causes of actions, judgments, demands, damages, losses or liabilities, including costs and expenses (including reasonable attorneys fees and costs of suit), arising out of or relating to (a) any claim based upon infringement of copyright, trademark, patent, or trade secret or other intellectual property right of any third party; (b) any claim, representation, or statement made in the Advertisement; (c) any breach of any representation or warranty contained in this Agreement.
11. Dispute Resolution:
If any dispute arises under this Agreement, the Parties agree to first try to resolve the dispute with the help of a mutually agreed upon mediator in the following location: Ukraine, Zaporizhzhya. Any costs and fees other than attorneys’ fees associated with the mediation shall be shared equally by the parties. If it proves impossible to arrive at a mutually satisfactory solution through mediation, the Parties agree to submit the dispute to binding arbitration in the following location: Ukraine, Zaporizhzhya The Parties agree that the binding arbitration will be conducted under the rules of the Ukrainian Arbitration. Judgment upon the award rendered by the arbitrator may be entered in any court with proper jurisdiction. If any litigation or arbitration is absolutely necessary to enforce this Agreement or the terms thereof, the prevailing Party shall be entitled to reimbursement by the other Party for reasonable attorneys’ fees, costs and expenses.
12. No Assignment:
Neither Party shall have the right to assign or otherwise transfer its rights and obligations under this Agreement except with the prior written consent of the other Party; provided, however, that a successor in interest by merger, by operation of law, assignment, purchase or otherwise of all or substantially all the business of a Party may acquire its rights and obligations hereunder. Any prohibited assignment shall be null and void.
13. Independent Contractor:
Each party is an independent contractor. Except as set forth in this Agreement, neither party is authorized or empowered to obligate the other or incur any costs on behalf of the other without the party’s prior written consent.
If any term, provision, covenant, or condition of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of the Agreement shall remain in full force and effect and shall in no way be affected or invalidated.
15. Entire Agreement; Modification:
This constitutes the entire agreement between the parties and supersedes any prior or inconsistent agreements, negotiations, representations and promises, written or oral, regarding the subject matter. No modification, course of conduct, amendment, supplement to or waiver of this Agreement or any provisions hereof shall be binding upon the parties unless made in writing and duly signed by both parties.
16. Agreement in Counterparts:
This agreement may be signed by iPicnic OÜ and PUBLISHER in counterparts, and facsimile signatures shall have the same force and effect as an original signature.
17. Prepayment obligations:
In case PUBLISHER accept only prepayment method and iPicnic OÜ accept cooperation on prepayment basis, PUBLISHER obligated to spend 50% of prepayment based on invoice provided to iPicnic OÜ, during 30 days after payment being received. And another 50% not longer then 50 days, since payment were done. This minimal limit should be reached with first 2 prepayments during cooperation between iPicnic OÜ and PUBLISHER. Otherwise PUBLISHER obligated to refund 100% of invoice value made by iPicnic OÜ in 30 days.