Terms & Conditions
- Purpose and Affiliate Application
- The Affiliate, which is a person or an entity with legal capacity, who applies to participate in the Affiliate Program (as defined below in Clause 1.3), maintains and operates one or more websites on the Internet (hereinafter collectively referred to as “Affiliate Site(s)").
- Micro Technology Unlimited, Inc. (hereinafter referred to as “MTU” or “the Company”) provides software products, through its website with domain name www.mtu.com (the “Website”).
- This Agreement entered into between the Company and the Affiliate governs the terms and conditions relating to the promotion of the Website by the Affiliate, i.e., by hypertext linking from Affiliate Site(s) to the Website in accordance with the terms of this Agreement, whereby the Affiliate will be paid a commission as specified below, subject to the terms and conditions of this Agreement.
- By completing and submitting the application form (the “Affiliate Application”) the Affiliate agrees to be bound by the terms and conditions set out in this Agreement. Please read the terms and conditions of this Agreement carefully and in their entirety. By submitting the Affiliate Application the Affiliate warrants and represents that:
- it has, and will retain throughout the term of this Agreement, title and authority to enter into this Agreement, to grant the rights and perform all its obligations in this Agreement; and
- if he/she is a natural person, he/she is not under 18 years of age (he/she is obliged to provide the Company upon request a copy of his/her ID); and
- it has obtained and will maintain in force all necessary registrations, authorizations, consents and licenses necessary to fulfill its obligations under this Agreement; and
- it will at all times comply with all applicable rules, laws and regulations; and
- it fully understands and accepts the terms and conditions of this Agreement and that it will at all times comply with all the terms and conditions of this Agreement.
- Rights and Limitations of the Company
- The Company shall evaluate the Affiliate Application submitted by the Affiliate and shall notify the Affiliate in writing whether the Affiliate Application is accepted or not. Written notification may be given by e-mail according to Clause 8.1. The Company reserves the unconditional right to refuse the Affiliate Application for any reason in its sole and absolute discretion, or require further information from the Affiliate. In the event that the Company requests further information in accordance with this Clause, the Affiliate Application will be treated as having been re-submitted and the Company will review it in its entirety and subsequently notify the Affiliate of its acceptance or rejection to the Affiliate Program as determined by the Company in its sole and absolute discretion.
- The Company shall retain the unconditional right at its sole and absolute discretion, to cancel, alter and/or close its Affiliate Program, add provisions to this Agreement and/or alter or delete any of the provisions of this Agreement, at any time and in any manner the Company deems appropriate, without any liability to the Affiliate. Notices to the Affiliate concerning any such cancellation/alteration in the Affiliate Program and/or this Agreement shall be made in writing and will take effect fourteen (7) days’ after such notice in writing is deemed to have been received under this Agreement. Written notification may be given by email and/or by pop-up message according to Clause 8.1. The Affiliate’s continued participation in the Affiliate Program, including but not limited to acceptance of any commissions from the Company, after such change notice is deemed to have been received under this Agreement, will always be deemed as a binding irrevocable accept of the new terms and conditions and/or other changes in the Affiliate Program.
- The Company’s liability with respect to any and all claims howsoever arising, including negligence, in connection with this Agreement are limited to, to the maximum extent permitted by applicable law, to direct damages up to the amount the Affiliate has received as remuneration from the Company within the last six (3) months.
- MTU make's no representation that the operation of the Website will be uninterrupted or error-free and the Company will not be liable for the consequences of any interruptions or errors.
- Further, MTU shall not be liable for any indirect losses or damages or loss of income incurred by the Affiliate, damages due to business interruption, or loss of information, even if such losses should arise from the inability of the Company to operate its Affiliate Program as stipulated in this Agreement, whether the Company is at fault or whether a third party is at fault.
- The Company shall be entitled to exercise any of its rights or fulfill any of its obligations under this Agreement through any company within the group of companies containing the Company.
- Rights and Obligations of the Affiliate
- The Affiliate agrees to only use links, promotion, advertising or marketing material provided within the scope of the Affiliate Program, and no other material relating to MTU, unless specifically authorized in writing by the Company. The Affiliate understands and acknowledges that it shall market and refer potential customers to the Website at its own cost and expense.
- The Affiliate operates the Affiliate Sites under its own name and risk and is responsible for the development, operation, and maintenance of them as well as for all material appearing on the Affiliate Site(s).
- The Affiliate shall at all times conduct its business in a manner that reflects favorably upon the high quality image of MTU. The Affiliate shall engage in good business practice and comply with all applicable laws and regulations. In specific, all of the content of the Affiliate Sites and the Affiliate’s marketing activities must be professional, proper and lawful under applicable laws, and in accordance with the terms of this Agreement.
- The Affiliate may not purchase, attempt to register, or register keywords, search terms or other identifiers for use in any search engine, portal, sponsored advertising service or other search or referral service and which are identical or similar to any of MTU´s trademarks or otherwise include the word “Video Hoster, Vogone, Microstudio, KHPro, Keyrite” or variations thereof.
- The Affiliate may not use any framing techniques or technology on the Website, or encourage any third party to do so, unless specifically authorized in writing by the Company.
- The Affiliate shall not perform any act which is libelous, discriminatory, obscene or otherwise unsuitable or which contains sexually explicit, pornographic, obscene or graphically violent materials. Further, the Affiliate Site(s) shall not use MTU´s trademarks in any way that may harm MTU, or their trademark(s), goodwill and/or branding. It is essential that the Affiliate Site(s) reflect positively upon the Website.
- The Affiliate agrees that it shall not generate traffic to the Website by illegal or fraudulent means, particularly but not limited to sending spam.
- The Affiliate agrees that it will not present the Affiliate Site(s) in such a way that it might give rise to confusion with the being MTU's Website.
- The Affiliate shall indemnify and hold harmless the Company, MTU and each of its affiliates, directors, officers, employees, shareholders, attorneys, agents and partners (the "Indemnified Party") from and against any and all losses, demands, claims, damages, costs, expenses (including without limitation consequential losses and loss of profit, reasonable legal costs and expenses) and liabilities suffered or incurred, directly or indirectly, by the Indemnified Party in consequence of any breach, non-performance or non-observance of this Agreement or any applicable law by the Affiliate and/or any claims related to Affiliate Site(s) or links.
- Payment of Commission
- The Company shall pay the Affiliate commission as specified below. The commission is based on the number of Software Sales generated, as defined below in this Clause, who access the Website via clicking the tracking links on the Affiliate Sites. “Sales” shall mean software sales of MTU Software who do not yet have, and have not had an account with MTU and who access the Website via clicking the tracking links on the Affiliate Sites, properly register and then purchase software. Hardware and Song Sales are not included in the affilliate program.
- The commission granted by the Company to the Affiliate will be calculated as a percentage of the Sale generated by the Affiliate Sites.
- The size of the commission (the Affiliate’s percentage share of the Net Revenue) for each month depends on the total number of New Software Sales referred to the Company by the Affiliate Sites during that same calendar month as specified in the commission structure as set out below:
|Number of New Software Sales per month:
|0 - 10
|7% of the Selling Price
|11 - 20
|9% of the Selling Price
|21 - 30
|11% of the Selling Price
|31 - 40
|13% of the Selling Price
|41 - 100
|15% of the Selling Price
|101 - 100
|20% of the Selling Price
|Above 200 to be handled on an individual basis.
- The Company will pay the Affiliate commission on a monthly basis for New Software Sales during the term of the Agreement. The size of the monthly commissions for all New Sales referred to the Company under this Agreement will, however, correspond with the size of the commission for the current calendar month, for which the commission is to be determined in accordance with what has been described above.
- The Affiliate understands and accepts that the size of the commission will vary from time to time depending on how many New Sales are referred to the Website by the Affiliate Site(s) during each calendar month.
- The commission is calculated at the end of each month and payments shall be performed within the first twenty days of each calendar month.
- Payment of commissions shall be made by the paypal. The minimum payout level is $75 US Dollars.
- If the Affiliate disagrees with the balance due as reported, it shall within a period of fourteen (14) days send an email to the Company at email@example.com to the Affiliate and indicate the reasons of such dispute. Failure to report within the prescribed time limit shall be deemed an acknowledgment of the balance due for the period indicated.
- The commission is inclusive of any and all taxes, including but not limited to value added tax. The Affiliate is solely responsible for the payment of any and all taxes, fees, charges and any other money payable or due both locally and abroad to any tax authority and/ or any other authority as a result of the revenue generated under this Agreement.
- The Affiliate, acting in a private capacity, further undertakes to self-pay any applicable social security contributions on the remuneration received under this Agreement.
- All payments shall be made in US Dollars or in such other currency that may be determined by the Company and regardless of the currency of the Affiliate’s home country.
- The Company has the right to withhold any and/or all payments to the Affiliate if the Affiliate is in breach of any of the provisions of this Agreement.
- Any commissions paid to the Affiliate by the Company hereunder shall represent the Affiliate’s sole remuneration for its activities under the Agreement. Hence except as otherwise expressly agreed in writing, all expenses incurred by the Affiliate when carrying out the rights and obligations under this Agreement shall be deemed to be covered by the commission provided for in this Agreement. The Affiliate is responsible for all obligations and costs in connection with the performance of this Agreement.
- Use of Marketing Material
- Subject to the terms and conditions of this Agreement the Affiliate is hereby granted a revocable, limited, non-exclusive, nontransferable right to display the marketing material provided within the scope of the Affiliate Program (the “Marketing material”) on the Affiliate Sites during the term of this Agreement. The display shall always be in accordance with the Affiliate guidelines as provided within the scope of the Affiliate Program (as amended from time to time at the Company’s sole and absolute discretion). The Affiliate shall make no other use of the Marketing material. The use of the Marketing material must be professional, proper and lawful under applicable laws. For the avoidance of doubt, the Affiliate shall not be entitled to sublicense or otherwise assign any right of use (in whole or in part) of the rights granted hereunder.
- The Affiliate is not permitted to alter or in any way modify any of the Marketing material without the express prior written consent of Company authorized in writing by the Company. Please email firstname.lastname@example.org for consent to do this.
- All intellectual property rights and any goodwill arising in links and all Marketing material, products, associated systems and software relating to the Website shall remain the property of MTU. The Affiliate shall not acquire any intellectual property rights whatsoever in such materials. The Affiliate shall immediately bring to the attention of the Company any improper or wrongful use of MTU's intellectual property that comes to the attention of the Affiliate.
- The Affiliate shall, in the performance of its duties under this Agreement, use every effort to safeguard the intellectual property rights of the Company. The Affiliate shall not act in a way which is inconsistent with or undermines MTU's ownership of any of the trademarks contained in the Marketing material or the Company´s license therefrom. The Affiliate shall not use such trademarks as its trade name or company name, attempt to register, register or otherwise challenge any name, mark, design, logo or websites that is similar to or may be confused with the Company’s and/or MTU’s or any of its affiliates intellectual property. In particular, unless prior written approval, the Affiliate may not purchase, register, attempt to register or use domain names, search terms which are identical or similar to any of the Company’s and/or MTU’s trademarks or otherwise include the word “Video Hoster, Keyrite, Microstudio, KHPro, Vogone, Songverter” or variations which are identical or confusingly similar to any of the Company’s and/or MTU’s trademarks, website or other branding materials.
- Further, the Affiliate agrees that the Affiliate Sites and/or other types of communication shall not in any way resemble the appearance and/or the general impression of the Website, nor will the Affiliate create the impression that the Affiliate Sites are the Website or any part thereof.
- Term and Termination
- This Agreement shall be binding on the Affiliate once the Affiliate Application has been submitted but shall not be binding or enter into effect in relation to the Company until the Affiliate Application has been approved by the Company according to Clause 2.1 and shall thereafter continue unless and until terminated as provided in this Agreement.
- Either party may at any time terminate this Agreement without cause by giving the other party fourteen (14) days’ notice in writing according to 8.1. Neither party will have to pay the other any costs or damages resulting from termination of this Agreement without cause.
- Should the Affiliate commit a breach of the terms of this Agreement, the Company is entitled to terminate this Agreement with immediate effect by giving written notice of termination to the Affiliate. Written notification may be given by email or pop-up message according to 8.1.
- Upon any termination of this Agreement, all rights and licenses granted to the Affiliate under this Agreement shall immediately terminate, and the Affiliate will cease the use of any trademarks, service marks, logos and other designations of the Company. In particular the Affiliate hereby agrees that on any termination of this Agreement, the Affiliate must immediately (i) remove all references to the Website from the Affiliate Sites and (ii) shall cease any further activity promoting or marketing the Website, MTU and/ or the Company, irrespective of whether the communications are commercial or otherwise.
- The Affiliate must return to Company any and all Confidential Information (and all copies and derivations thereof) in the Affiliate's possession and control.
- The Affiliate will only be entitled to already earned and unpaid commissions, after the effective date of termination provided the termination is not based on a breach by the Affiliate. However, the Company may withhold the Affiliate's final payment for a reasonable time to ensure that the correct amount is paid. For the avoidance of doubt the Affiliate understands and accepts that if this Agreement is terminated commission will no longer be paid to the Affiliate.
- The Affiliate shall not be entitled to reimbursement of any amount for any advertising, market development, investments, leases or other costs incurred before any termination of this Agreement. Without limiting the foregoing the Affiliate hereby irrevocably waives any right it may have under applicable legislation to an indemnity, damages, or compensation as a consequence of any termination of this Agreement in accordance with the terms of this agreement.
- The parties specifically agree that upon any termination of this Agreement by either party, the Affiliate shall no longer be entitled to earn or receive any payment, including but not limited to commission as provided for in clause 4, whatsoever from the Company.
- The Affiliate will release the Company from all obligations and liabilities occurring or arising after the date of termination. Termination will not relieve the Affiliate from any liability arising from any breach of this Agreement, which occurred prior to termination and/or to any liability arising from any breach of confidential information even if the breach arises at any time following the termination of this Agreement. For the avoidance of doubt the Affiliate’s obligations of confidentiality towards the Company under this Agreement shall survive any termination of this Agreement.
- Force Majeure
- Neither party shall be liable to the other for any delay or failure to perform its obligations under this Agreement if such delay or failure arises from a cause beyond the reasonable control of and is not the fault of such party, including but not limited to labor disputes, strikes, industrial disturbances, acts of God, acts of terrorism, floods, lightning, utility or communications failures, earthquakes or other casualty. If a force majeure event occurs, the non-performing party is excused from whatever performance is prevented by the force majeure event to the extent prevented. If the force majeure event subsists for a period exceeding thirty (30) days, then either party may terminate the Agreement without notice.
- Notices and the Relationship of the Parties
- Notices to the Company given or made under this Agreement shall be in the English language made by email and sent to email@example.com or such other email address as notified in writing by the Company to the Affiliate, and, to the Affiliate, the Affiliate’s email address as supplied in the Affiliate Application or such other email address as notified in writing by the Affiliate to Company and/or by pop-up message. Any notice shall be deemed to have been received: a) immediately, if sent by email or b) when the Affiliate logs into the affiliate platform, if sent by pop-up message – whichever occurs sooner. If deemed receipt occurs after 5.00 pm on a Work Day, or occurs on any day which is not a Work Day, the notice shall be deemed to have been received at 9.00 am on the next Work Day. "Work Day" shall mean any day which is not a Saturday, a Sunday or a bank or public holiday in the United States of America.
- Nothing contained in this Agreement, nor any action taken by any party to this Agreement, shall be deemed to constitute either party (or any of such party's employees, agents, or representatives) an employee, or legal representative of the other party, nor to create any partnership, joint venture, association, or syndication among or between the parties, nor to confer on either party any express or implied right, power or authority to enter into any agreement or commitment on behalf of (nor to impose any obligation upon) the other party.
- Severability and Waiver
- If any provision of this Agreement is held to be unenforceable in any respect, such provision will be ineffective only to the extent of such unenforceability, without invalidating the remainder of this Agreement.
- A failure of either party to exercise any right provided for herein, shall not be deemed to be a waiver of any right hereunder.
- All information, including but not limited to business and financial, lists of customers and buyers, as well as price and sales information and any information relating to products, records, operations, business plans, processes, product information, business know-how or logic, trade secrets, market opportunities and personal data of the Company and/or MTU shall be treated confidentially (“Confidential Information”). Such information must not be used for the Affiliate’s own commercial or other purposes, or divulged to any person or third party. The Affiliate obliges himself not to use the Confidential Information for any purpose other than the performance of its obligations under this Agreement.
- All Confidential Information provided or made available by the Company and/or MTU under this Agreement shall remain the sole and exclusive property of the Company and/or MTU and nothing in this Agreement shall be construed to grant the Affiliate any ownership right in, or license to, any such Confidential Information.
- This provision shall survive the termination of this Agreement.
- Entire Agreement
- This Agreement constitutes the entire Agreement and understanding of the parties and supersedes any previous agreement or understandings between the parties relating to the subject matter of this Agreement.
- No Business Restriction
- Nothing in this Agreement shall limit or restrict the Company’s and/or MTU’s right to do business with, grant rights to or receive grants of rights from, provide services to or receive services from, or enter into any agreements with any other entity, in any scope and manner that the Company and/or MTU desires.
- The Affiliate shall not be entitled to assign or transfer its rights or obligations under this Agreement without the express written consent of the Company.
- Notwithstanding the above, the Company may freely assign this Agreement and all of its rights and obligations hereunder to any of its subsidiaries or affiliated companies, including but not limited to MTU.