User agreement

User agreement

To be considered as signed by StoneBird Inc. on the Effective date

Version: 08.04.2015

This Agreement comes into full force on the Effective Date when accepted by two Parties named hereunder:

StoneBird Inc. , The Republic of Seychelles, international business company, which is the owner of the website, all services provided herein and all supplemental instruments (hereunder the Owner of the Network)

and

the Affiliate who is the visitor of StoneBird Inc.’ website and intends to join the Affiliate Network (the Network) and has duly registered on the website as a “Partner”.

Definitions of Agreement

Internet sites – shall mean collectively the domain names, World Wide Web or other electronic communications site.

Intellectual property – shall mean all present and future rights conferred by statute, common law, equity or any corresponding law in or in relation to copyrights, trademarks, designs, patents, circuit layouts, plant varieties, business and domain names, inventions, confidential information and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields whether or not registrable, registered or patentable. These rights include:

(a) all rights in all applications to register these rights;

(b) all renewals and extensions of these rights; and

(c) all rights in the nature of these rights, such as moral rights.

Link – segment of text or a graphical item that serves as a cross-reference between the Source and Landing Page.

Confidential Information – any information transferred by the Parties of this Agreement to each other which is not publicly available.

Valuable actions of visitors – expected by Advertiser for his campaign set of actions by visitor, like downloads of software, filling in the required information in forms, etc.

Landing Page – specific URL where Advertiser wants to lead visitors’ traffic for a specific campaign.

Advertiser – a party that intends to attract Visitors to their site and motivate them to perform Specified actions.

Affiliate Network – a broker system between Advertiser and Affiliate that is performing main operations like rotating Media files of Advertiser on Sources, managing statistics of Impressions, Clicks and conversions of Visitors, statistics of financial data and payments between all subjects.

Conversion – the completion of specified actions on Advertiser’s site.

Affiliate – a party that is interested in showing ads on their site and receiving money for specified actions of Visitors.

Media – text, audio, visual, or audiovisual material (file) prepared to be demonstrated to visitors, motivating them to perform valued actions for Advertiser. In many cases it is a picture in GIF, PNG, JPG or another format.

Fraud – any actions of Affiliates in breach of the conditions of Offers and/or these Agreement and/ or applicable laws as to the Traffic sources, types, volumes, etc.

Offer of Campaign – Applies to Affiliate network: a proposal made to Affiliate that expresses readiness to pay money to the Affiliate for specific actions of Visitors. It includes following parameters: offer goal – one or more goals that can be performed by Visitors, offer URL – one or more landing pages of Advertiser that Visitor(s) may be led to.

Campaign – advertisement campaign based on Offer of Campaign.

Specified Action – an action specified by Advertiser as specified Action and performed by a Visitor having clicked through the Link. The specified actions is registered as such only if all of the information required for such action is completed within the time period allowed by StoneBird Inc. and/ or its Network and the action is not later determined by StoneBird Inc. to be fraudulent, incomplete, unqualified or duplicate.

Traffic – the flow of Visitors who are interested with an ad in any way. The traffic may vary by type and source.

Traffic source – web, mobile, or other resources employed by the Affiliate to publish Links and Media

Visitor – Party that visits traffic source and watches ads, then clicks Media and performs Conversions. The Visitor must be a person, not a computer generated visitor, such as a robot, spider, computer script or other automated, artificial or fraudulent method to appear like an individual. Use of pre-populated traffic is forbidden.

Recitals

WHEREAS:

(A) StoneBird Inc. has entered into agreement with Advertisers pursuant to which it provides its advertisement to Affiliates.

(B) StoneBird Inc. has developed software and services for providing such advertisement to Affiliates.

(C) StoneBird Inc. shall provide all the reasonable required materials[1], texts, pictures, references and links with reasonable required diligence. StoneBird Inc. may provide and the Affiliate may accept special services of StoneBird Inc. for publishing of ads or materials. Affiliate can get the materials by direct access to Advertiser’s website.

(D) Affiliate has intention to advertise the third party materials and receive commission for special actions of visitors.

(E) Affiliate has proper traffic of the Visitors on his website what allows him to direct the visitors traffic to different links.

(F) Affiliate is a legal entity or person owning or renting the website and has a proper reputation.

(G) Affiliate uses a bank account or payment services to receive the commission on timely manner.

(H) Affiliate may own the separate Affiliate Network or to be an Affiliate of other such Networks.

Becoming an Affiliate

You must submit an Affiliate application form on 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. We will notify you of your acceptance or rejection to the Affiliate Network within reasonable time, generally within three (3) business days. We may accept or reject your application at our sole discretion for any reason.

Covenants by Affiliate

Affiliate covenants with StoneBird Inc. that it will comply with, at its own cost and expense, all laws and all necessary decrees, acts, orders, consents, licenses, permits, approvals and certificates (and any required amendments and replacements thereto) to enable Affiliate to operate the Site, to publish on the Site in accordance with the terms of this Agreement.

Affiliate covenants with StoneBird Inc. that it will not modify the Links and/ or media in any way. Affiliate agrees that it expressly forbid any third party affiliate to modify the provided Links and/ or media in any way. Affiliate agrees to maintain its network according to the highest industry standards. Affiliate shall not permit any third party to be a third party affiliate whose traffic sources or business model involves content unacceptable according to the terms of this Agreement and/ or offers Affiliate run with them. All third party affiliate 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 Link(s) and/ or media. Affiliate shall promptly terminate any third party affiliates who takes, or could reasonably be expected to take, any action that violates the terms and conditions of this Agreement and/ or offers. In the event that either party suspects any wrongdoing by a third party Affiliate with respect to the Link, Affiliate shall promptly disclose to StoneBird Inc. the identity and contact information for such third party Affiliate. Affiliate shall promptly remove any third party Affiliate from the Affiliate Network and terminate their access to future offers of StoneBird Inc. in the network upon written notice from StoneBird Inc.. Unless StoneBird 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 StoneBird Inc., Affiliate shall remain liable for all acts or omissions of any third party Affiliate.

Services

  1. Secured online Account

Affiliate can have access to and manage its Account in a dedicated and secured space on the StoneBird Inc.’ website. Via such Account, the Affiliate can subscribe to the Campaigns, have access to reporting tools and issue its payment requests to StoneBird Inc. (where there is a valid ground to do so).

  1. Participation in the Campaigns

Affiliate may subscribe to the Campaign in accordance with the terms of the Offer of Campaign. Participation in a Campaign implies the acceptance of the Offer of Campaign without any reserve by Affiliate and is subject to StoneBird Inc.’s prior approval.

When participating in a Campaign, Affiliate is authorised and agrees to display the related Links and Content where applicable for the duration and according to the conditions set forth in the Offer of Campaign. Any modification, update or termination of a Campaign will be notified to Affiliate with no less than 24 (twenty four) business hours prior notice. Affiliate undertakes to promptly implement the notified modification, update or termination in good faith within the imparted deadline. StoneBird Inc. reserves the right to retain payments in case of failure of Affiliate to implement any notified modification, update or termination in accordance with the terms of the notification.

StoneBird Inc. reserves the right to withdraw Affiliate from any ongoing Campaign at its sole discretion with immediate effect. Affiliate will not be entitled to any indemnification for such withdrawal.

  1. Other services

From time to time StoneBird Inc. may offer optional services and/or premium services for a fee, under the conditions specified on the StoneBird Inc.’ website.

Availability of materials. StoneBird Inc. shall make available access to the Affiliate a dynamic database of Offers and Advertiser’s materials through Links, solely for the purposes set out in this Agreement and for the purpose of identifying the traffic sources of Affiliate as a participant of StoneBird Inc. Network.

Content of materials. StoneBird Inc. make no any review, comment, agreement, consent or other approval, recommendation (including in respect of Affiliate’s choice of Advertisers, materials), advise or inspection by or on behalf of StoneBird Inc. and/ or its affiliates made pursuant to the provision of services or otherwise or any failure or any delay by StoneBird Inc. or by Advertiser in making or giving the same shall relieve Affiliate (or any third party engaged) in whole or in part of any of its obligations or liabilities under this Agreement, render StoneBird Inc. and/ or affiliates responsible or liable to Affiliate or to any other person for the material and content of ads or for any delay in publishing; and be relied upon by any person other than Affiliate, and then only by Affiliate for the purposes set out in this Agreement.

Affiliate hereby indemnifies and holds harmless StoneBird Inc. and its affiliates on demand against all losses, costs, claims, liabilities, damages, fines or expenses (including all reasonable legal costs) incurred or suffered by StoneBird Inc. or its affiliates arising out of or in connection with any breach of the warranties, representations, covenants and undertakings set out in this Agreement.

Payments

In consideration for Affiliate advertising the ads on their sites or other internet resources Affiliate shall be entitled to charge as an expense for the commission for advertising and receive its commission as an amount agreed additionally and being withhold from funds paid by Advertiser to StoneBird Inc. (The Commission).

If Advertiser does not provide such funds to StoneBird Inc. then no commission payment obligation can arise under this section of the Agreement and Affiliate waives all the liability from StoneBird Inc. for such delay, breach by Advertiser or breach by the Affiliate (regarding the particular Advertisement) and such a case is regulated by agreements between Advertiser and StoneBird Inc. and/ or by the commercial Offer which may be made to Affiliate by Advertiser.

Each Party to this Agreement separately carries its bank and/ or payment expenses, currency exchange expenses, taxes and levies withholding at country of residence of each Party.

StoneBird Inc. shall charge a fee or payment for additional services if such services agreed by Affiliate. For the avoidance of doubt, the Parties acknowledge that StoneBird Inc. may, but not be obliged to, provide such additional services.

In addition to all other rights and remedies available under all laws, in the event that any payment to be made by Affiliate and/ or third parties pursuant to this clause is not received by the due date, StoneBird Inc. shall have the right, at its election, to deduct such payment (together with any interest accrued thereon) from any commission under this Agreement due or thereafter becoming due under this Agreement until the entire amount due is recovered in full.

In the event that the actual withdrawals of the fees to which Affiliate are entitled made under subsection above for any period shall be more than the actual commission due to Affiliate in the period, StoneBird Inc. shall require to repay the difference to the StoneBird Inc. bank account within thirty (30) Calendar Days after the issuance of the financial statements for the relevant fiscal month or quarter or year or alternatively StoneBird Inc. may deduct the difference from the next instalment of the commission due to Affiliate to be made in accordance with subsections above.

Regarding the StoneBird Inc.’ services hereto the amount of service fee, not previously recovered as provided for in this section or otherwise shall be immediately due prior to and as a condition precedent to termination or expiration, and in the sole discretion of StoneBird Inc., until such amount is paid in full to StoneBird Inc., this Agreement shall not terminate or expire.

StoneBird Inc. can apply charge-back in the following situations:

  • Return of product or a fraud (double clicks, robot-, software-, spider- or script-generated clicks, and etc.);
  • Duplicate entry or other obvious error;
  • Abnormal churn rate;
  • Non-bona fide transactions;
  • Non-receipt of payment from the Advertiser or receipt of the payment refund request from the Advertiser;
  • Affiliate’s failure to comply with the Offer of Campaign or with paragraphs of this Agreement; or
  • Payments due to StoneBird Inc. from Affiliate exceed the amount that is due to Affiliate

StoneBird Inc. pays to Affiliate during 2 (two) calendar weeks and then during a month the report of Advertiser occurs what lead to that the next of the planned payments to Affiliate by StoneBird Inc. may be cut-back by the amount not paid by Advertiser for specific Campaign/ Offer for the reasons specified in its report and which are specified in this Agreement hereunder.

StoneBird Inc. can apply cut-back (cut down) in the following situations:

– Infringement of the conditions either of Offer of Campaign or Infringement of the whole Campaign or Infringement of both.

The cut-back shall be applied to the whole Offer, and the payment to Affiliate will be descreased by the amount of compensation agreed in the mentioned Offer.

Payment could be made by either invoice receipt or by a direct money transfer.

Invalid Accounts

Invalid Accounts will be closed effective immediately, and all the Transactions generated from such Account, if any, will not be subject to refund in case under item 3) of this paragraph.

StoneBird Inc.’s decision to invalidate an Account may not be challenged and Affiliate will not be entitled to any indemnification from StoneBird Inc. further to such invalidation.

StoneBird Inc. may invalidate the Account (and such Account becomes invalid) if:

1) Affiliate breaks this Agreement (including terms of Offer of Campaign);

2) The Account is dormant for a consecutive 6-months period;

3) There is less then 50 USD or negative balance for more than 90 days then invalidation will be without refund.

The Affiliate may receive the warning instead of immidiate invalidation of account what is under exclusive considiration of StoneBird Inc..

Taxes

  1. Each Party shall responsible for its own income taxes with respect to any payments made hereunder, except for cases provided for by section B of this section.
  2. If under the laws of the Country where the Party is resident it is required to withhold any taxes and / or levies assessed by any third party on Party to this Agreement as a recipient (including, but not limited to, VAT, withholding tax on income of foreign legal entities withheld at source or any similar taxes and/or levies), then the amount hereunder shall be paid after withholding or payment of such tax and/ or levy by Party in accordance with the laws of the Country of such Party.
  3. Notwithstanding the foregoing, if the relevant double tax treaty is applicable, Party shall apply the relevant provision of such double tax treaty, in order to reduce the applicable tax rate or to avoid the application of such tax to the extent possible.

Defaults and termination

The following shall constitute event of default:

  • The failure by either Party to make any payment to the other party provided for herein within a period of 60 (sixty) Calendar Days [2]after such payment is due and payable (unless the funds have not been receive by StoneBird Inc. from the Advertiser);
  • Either Party being subject to an Insolvency Event;
  • The failure by the Party to commence services according to this Agreements;
  • The failure by the Party to perform, keep or fulfill any of the other covenants, undertakings, obligations or conditions set forth in this Agreement and the continuance of any such default for a period of three (3) Calendar Days after receipt of written notice or electronic mail from the other Party of the failure.

The right granted hereunder shall not be in substitution for, but shall be in addition to, any or all rights and remedies for breach of contract granted by laws.

Successors and assignees

Neither Party shall have the right without the written consent of the other Party to assign any of its rights or transfer, subcontract or delegate any of its obligations under this Agreement or its interest to any of its affiliates or cause a reassignment to itself or to any such affiliates.

The licenses which StoneBird Inc. grants are non-transferable, non-exclusive and revocable.

Limitation of compensation on termination

In case the StoneBird Inc. terminates the Agreement at convenience then the Affiliate waives hereby to require compensation for early termination and StoneBird Inc. shall not pay such compensation to Affiliate.

Limitation of technical liability

In no event shall StoneBird Inc. be liable for any unavailability or inoperability of the Link(s), program, web sites, technical malfunction, computer error, corruption or loss of information, or other injury, damage for disruption of any kind beyond the reasonable control of StoneBird Inc.. In no event StoneBird Inc. shall be liable for any indirect, incidental, consequential personal injury/death or damages, including loss of profit or loss of business opportunity. Cumulative liability of StoneBird Inc. to Affiliate from causes of action and all theories of liability, will be limited to and will not exceed the amount paid to Affiliate by StoneBird Inc. in commissions during the three (3) months immediately prior to such claim.

Special conditions

Affiliate shall publish all the policies and offers, restrictions and terms of Advertiser, as well as references to law where possible and/ or required to.

Affiliate shall not reproduce the design style of StoneBird Inc. or any of its Advertisers and will not lead to misrepresentation of the Visitors.

Affiliate takes obligations of compliance with anti-Spam policy of its Country.

Affiliate takes obligations not to publish in chat rooms, auction platforms, etc.

Affiliate takes obligations not to perform or use automated increase of number of clicks or automated completeness of required information, etc., or other click-fraud actions.

Any non-compliance with conditions mentioned in this section is considered as a breach of essential conditions. StoneBird Inc. can make any investigations by its own means and instruments at any time.

In the event that StoneBird Inc. carries out any of its obligations under this Agreement without all of the conditions presented in this section being satisfied, StoneBird Inc. shall not be deemed to have waived or prejudiced the requirement for all of the conditions precedent to be satisfied and Affiliate shall remain liable to perform and satisfy all of the conditions precedent, failing which, StoneBird Inc. shall be entitled to terminate this Agreement (but without prejudice to all rights and remedies StoneBird Inc. may have for breach of contract or otherwise).

Undertakings

StoneBird Inc. (the Affiliate Network) represents and warrants to Affiliate (the User) as of the date of this Agreement:

StoneBird Inc. is duly organised, validly existing and in good standing under the laws of The Republic of Seychelles, and has full power, authority and legal right to execute, preform and observe (as the case may be) the provisions of this Agreement to be performed or observed by StoneBird Inc.;

Affiliate represents and warrants to StoneBird Inc.:

Affiliate is duly organised, validly existing and in good standing under the laws of the country of its residence, and has full power and legal right to execute, perform and observe (as the case may be) the provisions of this Agreement to be performed or observed by Affiliate.

Affiliate has the valid traffic sources, one of which has to be writen in the Offer form.

Survival on expiration and /or termination

Expiration or earlier termination of this Agreement shall not affect the rights or liabilities of any Party accrued prior to and including the date of termination or expiry, and/ or any terms intended expressly or by implication to survive termination or expiry.

Definitions, headings and references

Unless otherwise defined in this Agreement, all of the defined terms used in this Agreement shall have the meaning ascribed to them in the Definitions and in footnotes attached to this Agreement hereto. Should there be any discrepancy between any such term in the body of this Agreement and footnotes or Definitions, then the respective definition in the main body of this Agreement shall prevail.

Insolvency/ Liquidation

“Insolvency event” shall mean when:

(a) a party enters into arrangement or composition for the benefit of the party’s creditors or convenes a meeting of the party’s creditors (or nominee calls such a meeting);

(b) a Party is the subject of an order or a resolution for the winding up of that Party;

(c) an order is made for the appointment of an administrator to manage the business affairs, business and property of a Party;

(d) a receiver is appointed of any of a Party’s assets or undertakings;

(e) circumstances arise which entitle the court or a creditor to make a winding up order in respect of a party;

(f) a party becomes subject to the insolvency or bankruptcy laws of the country in which it is resident or incorporated;

(g) a party suffers any distress or execution to be levied on any of its assets or becomes unable to pay its debts as and when they become due; or

(h) analogous proceedings or events to those specified in paragraphs (a) through (h) are instituted or occur in relation to a Party elsewhere that in the Country of residence.

Cost and expenses

Except as otherwise stated in this Agreement each party pay its own costs and expenses in relation to negotiations (if any), preparation, execution, performance and implementation of this Agreement and each document referred to in it and other Agreements forming part of the transaction, save that this Article shall not prejudice the right if either Party to seek to recover its costs in any litigation or dispute resolution procedure which may arise out of this Agreement.

No third party rights

Subject to the reminder of this Article, this Agreement does not confer any rights on any person pursuant to the Contract (right of third parties) Act 1999 and this Agreement is made for the benefit of the Parties to this Agreement and their successors and permitted assigns and is not intended to benefit, or be enforceable by, any other person and except on any person or (other than the Parties to this Agreement) and so consent of any third party shall be required for any rescission or termination of amendment to this Agreement.

Time of the Essence

Time is of the essence of this Agreement as regards any time, date or period specified, agreed or otherwise determined pursuant to this Agreement and its articles or subsequently substituted as a time, date or period in accordance with said articles.

Confidentiality

Each Party shall during the term of this Agreement and all times thereafter, keep confidential all Confidential Information of the other Party, and shall not without the prior written consent of the other Party disclose to any third party except to its legal and professional advisers (including auditors and bankers), officers, employees, consultants and subcontractors (subject always to similar duties of confidentiality), any Confidential Information of the Party pursuant to or otherwise in connection with this Agreement, except where any Confidential Information:

(a) is required by law be disclosed;

(b) is required to be disclosed by any regulatory or governmental or other authority with relevant powers to which either Party is subject or submits;

(c) is or shall (otherwise than by breach of this Agreement) be in the public domain;

(d) is lawfully in the possession of the recipient Party other than pursuant to disclosure from the other Party;

(e) subsequently comes lawfully into the possession of the recipient Party from a third party without the imposition of any duty of confidentiality by such third party; or

(f) is independently developed by the party by persons having no access to the Confidential Information.

Entire agreement

This Agreement and any Appendices and exhibits annexed hereto constitute the whole agreement and understanding between the Parties with respect to the subject matter of this Agreement and supersede all prior agreements, negotiations and discussions between the Parties relating to the subject matter of this Agreement. This Agreement may be amended only by a written instrument executed by both Parties.

Affiliate acknowledges that it has not entered into this Agreement in reliance on any statement or representation, agreement or undertaking, whether or not made by or on behalf of StoneBird Inc. (or its affiliates), StoneBird Inc. (or its affiliates’) attorneys or its agents, consultants or advisers, except in so far as the representation has been incorporated into this Agreement and that it will not have any claim, right, or remedy arising out of any such representation, warranty, agreement or undertaking.

Affiliate irrevocably and unconditionally waives any right it may have to claim damages and/or to resend this Agreement by reason of any misrepresentation (other than a fraudulent misrepresentation) not contained in this Agreement.

Any single or partial exercise of any right, power, privilege or remedy arising under this Agreement shall not preclude or impair any other or further exercise of that or any other right, power, privilege or remedy.

Except as otherwise expressly provided by this Agreement, the rights, powers, privileges and remedies provided in this Agreement are cumulative and are not exclusive of any other rights, powers, privileges and remedies provided by law.

Non-waiver

A waiver of any right, power, privilege or remedy provided by this Agreement must be in writing and may be given subject to any conditions thought fit by the grantor. For the avoidance of doubt, any omission to exercise, or delay in exercising, any right, power, privilege or remedy provided by this Agreement shall not constitute a waiver of that or any other right, power, privilege or remedy.

A waiver of any right, privilege or remedy provided by this Agreement shall not constitute a waiver of any other breach or default by the other Party and shall not constitute a continuing waiver of the right, power, privilege or remedy waiver or a waiver of any other right, power, privilege or remedy.

Any single or partial exercise of any right, power, privilege or remedy arising under this Agreement shall not preclude or impair any other or further exercise of that or any other right, power, privilege or remedy.

Force majeure

Force-majeure shall mean any event, series of events, crisis, trend or state of affairs whatsoever, in any way related to economic, finance or financial markets (including debt, foreign exchange, equity and derivative markets) in any part of the world.

The Parties are discharged from their obligations and from responsibilities arise after breach of obligations under this Agreement in case if the breach is arises from force majeure.

Upon arising such circumstances, as describe in this section, the Party suffering from force majeure shall, during 8 (eight) days, notify in written form the other Party. The notification shall contain the data about circumstances and their character and the estimation of its effect (if possible) to the obligations under this Agreement.

The force majeure facts shall be proved by state authorities.

Upon the arising such circumstances the terms of fulfilling the obligations shifts with the time during which the pointed circumstances are taking place.

In case when mentioned circumstances are continuously last more than 3 months, each of the Parties has a right to terminate the Agreement with completing the obligations on payments and duties arise before force majeure.

Final provisions

The Principles of UNIDROIT will be applied to the conditions hereof that are not regulated herebyand the Principles will be supplemented, if necessary, by the substantive law of England and Wales.

The Affiliate confirms the commercial nature of their activity and, accordingly, the place of dispute resolution, rules and principles of dispute resolution, in case of dispute, shall be those related to commercial disputes. The Parties acknowledge and confirm the inapplicability of the law on consumers to the relations between them.

All disputes, disagreements and claims arising from this Agreement or in relation hereto are subject to final settlement according to the Rules of Arbitration of the International Chamber of Commerce (ICC) by one or several arbitrators appointed according to these Rules (http://www.iccwbo.org/products-and-services/arbitration-and-adr/arbitration/). The place of arbitration is Paris, France (ICC, Paris).

The language of arbitration shall be English.

All changes to this Agreement are legal if made in written form.

The provisions of this Agreement shall prevail over the provisions of the preceding agreements, contracts and/ or provisions, which could be concluded between the Parties.

This Agreement shall prevail any further agreements except those made in addition to this Agreement between Parties until it is terminated with the exception that the terms of special offers agreed by the Parties shall prevail and shall be considered as integrated part hereof.

[1] Advertisement materials shall mean creative media, including pictures in different formats as jpeg, tif, others, films, animations, and cascade texts, etc. and all complemented with relevant design.

[2] Calendar Day shall mean a day in the Gregorian calendar.