mSeven Software Master Agreement
US Affiliate Terms and Conditions
PARTICIPATION IN THE PROGRAM
If you are a member of the mSeven Software Affiliate Program, you only need to read and agree to the Master Agreement below. If you are not a member of the mSeven Software Affiliate Program, you must complete a registration form to join the mSeven Software Affiliate Program and then read and agree to the Master Agreement. We will evaluate your registration form and notify you whether your website ("Site") or social network is accepted for participation in the U.S. We may reject your application if we determine (in our sole discretion) that your Site is unsuitable for the Program.
Unsuitable Sites include, but are not limited to, those that:
Infringe trademark rights of mSeven Software or any third party or otherwise violate the rights of any third party
Contain sexually explicit materials
Contain hate/violent/offensive content
Promote discrimination based on race, sex, religion, nationality, disability or age
Promote illegal activities or otherwise violate any applicable laws, including those targeting "spyware," "adware,” or SPAM
Violate any intellectual property rights, including, without limitation, scraping text or images from mSeven Software's websites or its platform partners.
Use misleading or fraudulent means to prompt clicks
Include an mSeven Software trademark in the domain name
Otherwise are considered offensive or inappropriate at mSeven Software's sole discretion
Once you are accepted into the Program, you will be able to participate in the Program subject to the terms and conditions of the mSeven Software Affiliate Agreement. You should also note that if you are accepted to participate in the Program and your Site or App is thereafter determined (in our sole discretion) to be unsuitable based on the criteria herein for the Program, we may terminate the this Agreement.
This Master Agreement ("Agreement") is made between mSeven Software LLC ("mSeven Software") and you ("Affiliate").
Affiliate and mSeven Software are each enrolled in the mSeven Software Affiliate Program.
Affiliate and mSeven Software each desire to establish the general terms and conditions that shall govern advertising and commission arrangements between Affiliate and mSeven Software resulting from their participation in The mSeven Software Affiliate Program pursuant to the U.S. mSeven Affiliate Program (“Program”).
TERMS AND CONDITIONS
In consideration of the promises set forth below, mSeven Software and Affiliate agree as follows:
1. Use of Promotional Content.
1.1. Affiliate may use certain promotional content as may be provided by mSeven Software, including videos, images, and App icons ("Promo Content"), for the purposes of promoting the subject of the Promo Content; provided such Promo Content: (i) is placed only on pages that promote the content on which the Promo Content is based; (ii) is proximate to the text “Available on the mSeven Software Store” or affiliate graphics provided by mSeven Software, that links directly to pages within the mSeven Software website where consumers can learn more about or purchase the promoted content and (iii) is not used to promote any other goods or services.
1.2. Affiliate acknowledges that mSeven Software provides the Promo Content "as is," and disclaims any and all representations or warranties, including, but not limited to, non-infringement.
1.3. Affiliate shall forward any claims received in connection with the Promo Content to mSeven Software immediately upon receipt, and will remove any Promo Content immediately upon request from mSeven Software.
2. Affiliate's Responsibilities.
2.1. Affiliate will link its website (“Site”) to areas within the mSeven Software website using a special URL suffix provided by mSeven Software(the "Affiliate URLs"). Affiliate may post as many links to the Affiliate URLs and the rest of the Site as it likes on Affiliate's Site or App. Any text-based link used with any of the Affiliate URLs by Affiliate on its Site or App may not include any call to action other than one for the purchase of one or more products on the mSeven Software website. Affiliate must ensure that the proper graphics are used with the appropriate URLs, and that the URLs link to the mSeven Software website pages. Affiliate promptly shall remove links to the Affiliate website URLs and the Stores upon mSeven Software's request.
2.2. Affiliate may not bid on search terms or keywords utilized by any internet search engine or other directory or referral services (e.g. Yahoo Search Marketing, Google, etc. (each, a "Search Engine")) to return or prompt internet search results if such keyword is, includes, or is confusingly similar to any mSeven Software trademark or service mark, (including but not limited to mSeven Software, mSecure, mGifts. Affiliate may be required to employ negative keyword matching to prevent violation of this guideline. Affiliate may bid on generic search terms (Password Manager, Digital Wallet, Password Keeper, etc.) from Search Engines provided that Affiliate's search terms, listing titles, and descriptions, and the content of their Sites or Apps do not violate the copyright or any other rights of mSeven Software or third party, as determined by mSeven Software at its sole discretion, or otherwise violate the Terms of Service for the Search Engine that will display the advertising.
2.3. Affiliate may not employ any mechanical means to pull content from any Store or mSeven Software site, including, but not limited to, programmatic crawling, downloading, viewing, or scraping.
2.4.Affiliate shall not make any representations, warranties or other statements concerning mSeven Software, any Store or mSeven Software site, any of mSeven Software's products or services, or mSeven Software's site policies, except as expressly authorized by the mSeven Software.
2.5. Affiliate is responsible for notifying mSeven Software and The mSeven Software Affiliate Program of any malfunctioning of the Required URLs or other problems with Affiliate's participation in the Engagement.
2.6. Affiliate will not present or use any content at its Site or App, including, without limitation, graphical images, logos, text copy, editorial copy, press releases or marks, that (i) could be interpreted to suggest that such content has been authored or otherwise provided by, or represents the views or opinions of, mSeven Software; (ii) is misleading, defamatory, libelous, obscene, or otherwise objectionable; (iii) infringes, derogates, dilutes, or impairs the rights of mSeven Software or any third party; (iv) refers to mSeven Software but is used as part of a name of a product or service of a company other than mSeven Software; or (v) is used in any other manner inconsistent with any term of this Agreement or with any provision of law.
2.7. Affiliate will not engage in deceptive software download or computer settings practices to promote mSeven Software, the Stores or any mSeven Software site. The prohibited deceptive practices include, but are not limited to, installing software without user knowledge, changing a user's home page without securing user permission, and offering downloadable software that does not install or operate as intended.
3.1 Affiliate is solely responsible for testing links to ensure they are working properly. mSeven Software shall have no liability for inoperable or incorrectly placed links.
3.2 Affiliate shall monitor all links on a weekly basis to ensure operability. This includes testing and maintaining current databases of links.
4.1. mSeven Software agrees to pay Affiliate the commission specified in the Affiliate Agreement if mSeven Software sells to a Store customer (a "Customer") a product that is the subject of the Affiliate Agreement and if that Customer has accessed the Store and purchased such product via a Qualifying Link. Not all products will be eligible for a commission under the Program, and products eligible for a commission are subject to change without notice in mSeven Software’s sole discretion.
4.2. A "Qualifying Link" is a link directing the Customer from Affiliate's Site or App to a Store using a Affiliate URL or other URL provided by mSeven Software for use in The mSeven Software Affiliate Program, after which, the Customer purchases a product from any Store during a Session. For avoidance of doubt, no Qualifying Link shall exist if it includes any call to action other than one for the purchase of a product on a mSeven Software Store. A “Session” is the period of time beginning when a Customer initially arrives at a Store via a link from the Affiliate’s Site or App (“Initial Contact”), and ending at the earliest of (i) 72 hours after Initial Contact, (ii) the time at which the same Customer subsequently arrives at any Store via another affiliate link or (iii) the expiration or termination of the applicable Engagement.
4.3. mSeven Software shall have the sole right and responsibility for processing all orders made by Customers. Affiliate acknowledges that all agreements relating to sales to Customers shall be between mSeven Software and the Customer.
4.4. All determinations of Qualifying Links and whether a commission is payable will be made by the mSeven Software Affiliate Program and will be final and binding on both mSeven Software and Affiliate. Prices for the products will be set solely by mSeven Software in its discretion.
4.5. mSeven Software reserves the right to withhold or reverse commissions if Affiliate is in breach of this Agreement or has engaged in any fraudulent activity, including, but not limited to, cookie stuffing, cloaking, or forcing pop-ups.
4.6 Eligible Products - mSecure for Windows and mSecure for MacOS are the only products eligible for affiliate commissions. All products must be purchased from mSeven Software online store. Products sold at the MacApp, iTunes or Android store does NOT qualify for commission payments.
4.6 Commission Amount - The commission amount is 20% of the net sales amount after product discounts, taxes and any media charges.
4.7 Commission Payment - Thirty days after the end of each quarter, will send a check for the net affiliate sales total (20% of the total sales minus discounts, taxes and media charges) for the previous quarter to affiliates in good standing. If your sales for the quarter do not exceed $25, no check will be sent to you until this amount has been exceeded.
4.8 Charge backs - If visitors return products, charge backs will be debited the affailiate account within the 60 day return period. At no time will the affiliate be asked for any charge back cash or processing charges.
5. Ownership and Licenses.
5.1. Each party owns and shall retain all right, title and interest in its names, logos, trademarks, service marks, trade dress, copyrights and proprietary technology, including, without limitation, those names, logos, trademarks, service marks, trade dress, copyrights and proprietary technology currently used or that it may use or develop in the future.
5.2. mSeven Software grants Affiliate a revocable, non-exclusive, worldwide license to use, reproduce and transmit the name, logos, trademarks, service marks, trade dress and proprietary technology provided by mSeven Software solely for the purpose of creating links from Affiliate's Site or Stores. Except as expressly set forth in this Agreement or permitted by applicable law, Affiliate may not copy, distribute, modify, reverse engineer, or create derivative works from the same. Any good will resulting from Affiliate's use of mSeven Software's name, logos, trademarks, service marks and trade dress will inure solely to the benefit of mSeven Software and will not create any right, title or interest for Affiliate. Affiliate may not sublicense, assign or transfer any such licenses for the use of the same, and any attempt at such sublicense, assignment or transfer is void.
5.3. Affiliate may use only the logos, trademarks, service marks, trade dress, banners, text links, coupon codes, etc. ("Creative") that are provided by mSeven Software and posted on the Affiliate section of the mSeven Software website. Creative is to be used solely for the purpose of advertising content on the Stores. Affiliate's use of the Creative shall comply with the Affiliate Graphics which may change from time to time. Affiliate shall not use the Creative in connection with any activity that disparages mSeven Software, or its products or services, or that damages the reputation for quality inherent in the same. The use of Creative that is posted on other sites, found in other emails or other sources, manipulated in any way or derived from any means is not permitted. If Affiliate does not fully comply with this provision mSeven Software may withhold commissions, immediately terminate this Agreement, permanently remove Affiliate from the Program, or utilize any remedy otherwise available to it in law or in equity.
5.4. Affiliate's use of mSeven Software's name, logos, trademarks, service marks, and trade dress pursuant to Section 5.2 and 5.3 must be in a manner that is clearly less prominent than that of Affiliate's name, logos, trademarks, service marks, trade dress, products and/or Site or App name. Affiliate shall not create or attempt to create an impression that there is an association or affiliation between mSeven Software and Affiliate beyond the arrangement outlined in this Agreement.
5.5. Affiliate shall always maintain the quality of its services at a level satisfactory to mSeven Software. mSeven Software shall at all times have the right to review Affiliate's activities related to this Agreement.
5.6. Affiliate shall immediately cease using mSeven Software's name, logos, trademarks, service marks, trade dress, proprietary technology and any Creative upon the termination or expiration of this Agreement.
5.7. Affiliate grants mSeven Software a non-exclusive, worldwide, royalty-free license to use, reproduce and transmit any graphic or banner ad submitted by Affiliate solely for co-branding purposes or as a return link from mSeven Software's site to Affiliate's Site or App. mSeven Software will remove such graphic or banner ad upon Affiliate's request.
6.1. Except as otherwise provided in this Agreement or with mSeven Software’s prior written consent, Affiliate agrees that all information including, without limitation, the terms of this Agreement, mSeven Software's business and financial information, its customer lists, and its pricing and sales information, shall remain strictly confidential and shall not be utilized, directly or indirectly, by Affiliate for its own business purposes or for any other purpose except and solely to the extent that any such information is generally known or available to the public through a source or sources other than Affiliate.
6.2. mSeven Software shall own and retain all right, title and interest in all names, addresses and other identifying information of Customers visiting mSeven Software's sites ("Customer Data") that mSeven Software collects, including without limitation, Customers who access mSeven Software's sites through Qualifying Links, and Affiliate shall have no right to use any such Customer Data.
7.1. Affiliate shall not send out any emails, directly or indirectly, that advertise or promote mSeven Software, its products, services, web sites or Offers without mSeven Software's prior express written consent and mSeven Software's approval of email content in each and every instance. Affiliate emails must comply with the CAN-SPAM Act of 2003 and any comparable laws that apply to the transmission of Affiliate's emails.
7.2. Affiliate shall only send an email or other form of electronic message or advertisement containing mSeven Software's name, product or service, web site address, metatag or any other type of identifier to any recipient if the recipient has directly consented to receive such communication from Affiliate or Affiliate has a pre-existing business relationship with the recipient. In addition, Affiliate agrees to provide a recipient of such communication with the ability to "opt out" of further communications from Affiliate either by calling a toll free number or by sending an "unsubscribe" email to Affiliate.
8.1. Either party may terminate at any time the mSeven Software Affiliate Program.
8.2. Either party may terminate this Agreement at any time, for any reason, provided that they provide at least five day's prior written notice of such termination to the other party and The mSeven Software Affiliate Program. In addition, mSeven Software shall be entitled to terminate this Agreement immediately if Affiliate materially breaches or violates any terms or conditions of this Agreement, or if mSeven Software determines, in its sole discretion, that there are technical or operational issues (e.g. interruptions caused by or shifts in online/Internet technology) that adversely affect compliance with this Agreement, or that Affiliate obtained orders/referrals fraudulently or through misrepresentation, in which case mSeven Software reserves the right to withhold payment of commissions pending an investigation by mSeven Software of the suspected fraud or misrepresentation. Termination of this Agreement shall also terminate any outstanding Engagements. However, all rights to payment, causes of action and any provisions that by their terms are intended to survive termination shall survive termination of this Agreement.
8.3. This Agreement shall commence as of the date last executed below and shall terminate as per the terms of Sections 10.1 and 10.2 above.
9.1. Each party represents to the other that it has the authority to enter into this Agreement and sufficient rights to grant any licenses granted hereby.
9.3. EXCEPT FOR THE ABOVE REPRESENTATIONS, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES TO THE OTHER PARTY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Affiliate agrees to indemnify, defend and hold harmless mSeven Software and its affiliates, directors, officers, employees and agents, from and against any and all liability, claims, losses, damages, injuries or expenses (including reasonable attorneys' fees) brought by a third party, arising out of a breach, or alleged breach, of any of its representations or obligations herein.
11. Limitation of Liability.
Except for Section 10 above, in no event shall either party be liable to the other party for any direct, indirect, special, exemplary, consequential or incidental damages, even if informed of the possibility of such damages.
12.1. Each party shall act as an independent contractor and shall have no authority to obligate or bind the other in any respect.
12.2. mSeven Software may modify any of the terms and conditions contained in this Agreement, at any time and in its sole discretion, by posting a change notice or a new agreement on the mSeven Software website and giving Affiliate notice of the modification through the mSeven Software Affiliate Program or through a subsequent email between the parties. IF ANY MODIFICATION IS UNACCEPTABLE TO AFFILIATE, ITS ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. AFFILIATE'S CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING MSEVEN SOFTWARE'S POSTING OF A CHANGE NOTICE OR A NEW AGREEMENT ON THE LINKSHARE WEBSITE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.
12.3. This Agreement has been made in and shall be construed and enforced in accordance with the laws of the state of Oregon. Any disputes arising out of this Agreement shall be brought in the federal or state courts located in Portland, Oregon. Notices to mSeven Software should be directed by email to mSeven Software LLC. at firstname.lastname@example.org.
12.4. This Agreement may be agreed to in more than one counterpart, each of which together shall form one and the same instrument. The parties agree that execution may be achieved in any format convenient to the parties. Affiliate will express affirmative acceptance of this Agreement's terms and conditions by so indicating when asked to do so on the mSeven Software site.
12.5. The provisions of this Agreement are independent of and separable from each other, and no provision shall be affected or rendered invalid or unenforceable by virtue of the fact that for any reason any other or others of them may be invalid or unenforceable in whole or in part.
Last updated: April 27th, 2012