Designer Agreement (hereinafter, the "Agreement")
This Agreement is entered by and between Wlompos Investments Ltd (hereinafter referred to as the Company);
the Designer, a legal entity or an individual that has submitted registration form on the Company’s website;
Hereinafter, collectively referred to as the “Parties” or individually as a “Party”.
The Designer is a company or an individual that has an expertise in online advertising and is intending to launch advertising campaigns for the clients of the Company in full accordance with the Agreement and specific conditions of the client;
The Company acts as an intermediary between its clients and the Designer by providing the Platform and facilitates promotion of Advertiser's Products.
Now, therefore the Designer and the Company agree as follows:
1.1 Advertiser is a client of the Company seeking to promote their products and services within the Media Channel; Advertiser is not a party to this Agreement and shall not be bound by its terms and conditions.
1.2 Advertiser's Products are the products and services of the Advertiser represented as software or application for any known operating system and/or device that the Advertiser is willing to promote within the Media Channel.
1.3 Advertising Materials are promotional materials used by the Designer to promote Advertiser's Products including, but not limited to the text, graphics, logos, designs, trademarks and copyrights for any type of advertising including, but not limited to, buttons, banners, text-links, pop-ups, and pop-unders.
1.4 Confidential Information shall include any information provided in writing, orally, visually, electronically or elsewhere related to the Platform, the Company, the Advertiser and their Products or any other aspect of the service which is deemed to have a commercial value or any other utility in business, including but not limited to (i) all information marked as “Confidential,” “Proprietary,” or similar legend by the disclosing party (“Discloser”) when given to the receiving party (“Recipient”); and (ii) information and data provided by the Discloser, which under the circumstances surrounding the disclosure should be reasonably deemed confidential or proprietary.
1.5 Effective Date is the earlier of the (i) date of adoption by the Designer of the terms of the Agreement or (ii) date when the Designer sets up Designer’s Account on the Platform.
1.6 Designer is an individual or a legal entity that renders advertising services to the clients of the Company within the Media Channel and via the Platform in accordance with this Agreement and specific terms and conditions set forth by the Advertiser.
1.7 Designer’s Account is a personal record of the Designer on the Platform that allows the Designer carry out their services to the advertisers. Access to the Designer Account is granted via Facebook authorization.
1.8 Media Channel is an advertising channel employed to advertise and promote the Advertiser's Products. Facebook is to be considered the major Media Channel until agreed otherwise.
1.9 Platform is the software owned by the Company available at https://app.appness.com/ which enables the interaction between the parties.
1.10 Profit is the amount earned by the Designer after the deduction of all expenses and commissions by the Company.
2. DESIGNER PROGRAM AND LEGAL DUTIES OF DESIGNER
2.1 The Designer shall provide advertising services via the Platform in full compliance with the terms and conditions of the Agreement, the specific terms and conditions set forth by the Advertiser or any other policies employed by the Company.
2.2 The Designer shall submit application for the Designer's Account at https://app.appness.com/ through Facebook authorization. Upon registration of the Designer’s Account, the Designer shall provide valid information on their identity, including, but not limited to, full name, country of residence, contact email address. The Designer accepts that they will be liable for any actions through and being logged in to their Designer’s Account and any of such actions shall be considered as performed by the Designer.
2.3 The Designer shall immediately notify the Company of any unauthorized use of and access to the Designer’s Account. The Designer is responsible for keeping the Designer’s Account information current, complete and accurate, and the Designer acknowledges and agrees that the Company shall not be deemed liable, directly or indirectly, for failure to deliver notices as a result of inaccurate Designer’s Account information or unauthorized access to the Designer’s Account.
2.4 The Company reserves a right to reject the application to open a Designer's account at any time at its sole discretion for any reason and to amend, edit, remove or reclaim any account details (including the Designer's submissions) with or without their request if deemed necessary and appropriate.
2.5 The Designer shall access the Advertiser’s Products terms and conditions and carry out their advertising services only via the Designer’s account. By working with a specific Advertiser Product the Designer confirms that they have read and understood its conditions.
2.6 The Designer agrees not to modify, alter, misrepresent or embellish the terms and conditions set forth by the Advertiser including without limitation any text or images provided by or on behalf of the Company or the Advertiser in any way, directly or indirectly, without the prior written consent of the Company.
2.7 The Company reserves a right to modify and alter the terms and conditions of the Advertiser’s products promotion and such changes shall become legally binding with immediate effect after the notification sent to the Designer by e-mail provided in the Designer’s Account.
2.8 By submitting an application or participating in the promotion of the Advertiser’s Products, the Designer expressly accepts all the terms and conditions of this Agreement. The Company acts only as an intermediary between the Advertiser and the Designer. The Company is solely responsible for ensuring the access to Advertiser’s products and thus provides no guarantee that they will be available in satisfactory quantity.
2.9 The designer shall only be compensated for the Advertising Materials that comply with Facebook advertising policy, Advertiser’s terms and conditions and any other terms and conditions set forth by the Company. The Company reserves a right to reject any Advertising Material submitted by the Designer in case it deems the Advertising Material to be in breach with any of the provisions above or if there are grounds to believe the Advertising Material may potentially be ineffective or harmful for either party. Material submitted by the Designer in case it deems the Advertising Material to be in breach with any of the provisions above or if there are grounds to believe the Advertising Material may potentially be ineffective or harmful for either party.
3.1 The Company shall calculate and pay the Designer their Profit at Net 30, unless specified otherwise. Minimum payment amount is 500 USD for bank wire, 300 USD for e-wallets and other available payment means. Should the balance be less than minimum payment amount by the payment date, the amount shall be added to the next payment.
3.2 At the payment date specified above the Designer shall receive an invoice via the Designer`s Account. The Company shall automatically generate the invoice and conduct the payment to the Designer upon their request in accordance with this clause. In case the Designer deems the invoice inaccurate or incorrect in any way, they must submit a complaint to the Company in writing within five (5) days. In case the Designer fails to submit the complaint within the said period of time, they unconditionally agree that the data provided in the invoice are correct and irrevocably waives any claims based upon it.
3.3 All payments accrued in accordance with clauses 3.2 and 3.4 are subject to adjustments at the sole discretion of the Company including, but not limited to technical reasons, fraudulent activities, additional agreements with the Designer, Advertiser’s complaints, refunds or any other reasons. The Company shall not abuse the right granted to it under this clause.
3.4 The Company shall determine qualified actions, track all the links ("Online reports") and calculate the Profit earned by the Designer at its sole discretion. All information on the Profit and other statistics shall be available to the Designer in their Designer's account. In all cases, the Company shall apply commercially accepted methods and practices to direct and measure traffic including the data provided by Facebook and/or third party qualified trackers. The Designer fully comprehends and agrees that the Online Reports as well as the Profit accrued based on them may be amended at any time by the Company in order to comply with the statistics provided by the Advertisers. In all cases, data and statistics provided by the Company are to be deemed final and conclusive.
3.5 The Designer unconditionally accepts that payment of Designer’s Profit depends on the payments from the Advertisers to the Company and shall not claim the payments the Company has not received from the Advertisers. In case of absence of such payment the Designer has a right to demand the evidence for such absence.
3.6 The Designer is solely responsible for supplying valid payment details to the Company. Should the details be incorrect or in case the Designer changes its payment details, it is the Designer’s responsibility to notify the Company by e-mail 14 days before the payment due date. The Designer will bear payment fees if required.
3.7 The Company may in its sole discretion, refuse to process a payment or put the payment fully or partially on hold, close the Designer's Account and terminate this Agreement if there is a reasonable suspicion that the Designer has breached any term of this Agreement. The Company reserves the right to set-off any amount the Designer owes to the Company, including, but not limited to, for breaches of the terms and conditions this Agreement and/or specific terms and conditions set forth by the Advertiser. The Company shall not be deemed responsible for paying any taxes on payments made to the Designer and the Designer acknowledges and agrees that it is their complete and sole responsibility to pay for all taxes as a consequence of their participation in this Agreement. In certain cases, the Company may withhold all payments until the Designer submits relevant tax documentation to the Company.
3.8 It is the Designer's sole responsibility to ensure the ability to receive payments to the specified bank or e-currency account. The Company shall not be deemed responsible for the delay or failure due to non-compliance with this provision, including the delay and/or failure due to the issues on the bank or e-currency side.
3.9 The Designer shall notify the Company immediately in case they believe any fault in the transaction has taken place. The Company shall make all possible efforts to eliminate any delays or issues in payment processing. Should the Designer fail to submit such claim within thirty (30) days after the the payment processing date, they will have waived, to the fullest extent permitted by law, all claims against the Company related to the transaction. Should the Designer’s bank or e-currency wallet be unable to receive a payment due to technical failure or interruption of service, they can request to delay their payment until the issue is resolved.
3.10 The Designer hereby fully understands and agrees that in case the Company has grounds to believe they have breached any of the conditions of the Agreement or specific terms and conditions set forth by the Advertiser, the company is entitled to partially or fully withhold or reject the payment to the Designer.
3.11 The Designer unconditionally accepts that all terms and conditions of this Agreement are material and breach of any of them may lead to irreparable harm to the Company, both monetary and reputational. The Designer further agrees to indemnify the Company if any monetary penalties imposed onto the Company as a result of the Designer’s breach of this Agreement and/or specific terms and conditions set forth by the Advertiser.
3.12 The Company may withhold payments until the Designer completes the KYC procedure by providing all documentation required to confirm their identity. The complete list of documents may vary and shall be determined by the bank in every certain case.
3.13 The Company is not liable to disclose any reports regarding the expenses and commission deducted from the Designer’s profit, unless agreed otherwise.
3.14 The Profit for any specific month shall be available for a payment order once it is approved by the Company. The approval of the Profit for any specific month shall commence on the 7th day of the next month.
3.15 The payment order shall be submitted after the profit is approved by the company but no later than the 25th day of the month. Should the Designer submit a payment order after the 25th day of the month, the Company may postpone the processing of the payment order till the next month.
3.16 The Company shall pay the Designer 1% of advertising budget spent on their Advertising Materials that comply with clause 2.9 of this Agreement, with minimum payout of 5 USD and maximum payout of 500 USD per each approved Advertising Material, unless specified otherwise in the Advertiser’s terms and conditions. The Company shall determine the advertising spent at its sole discretion.
4. REPRESENTATIONS AND WARRANTIES
4.1 The Designer represents and warrants that the Advertising Materials not provided directly by the Advertiser or the Company:
(i) are not illegal;
(ii) do not infringe upon the intellectual property or personal rights of any third party and
(iii) do not contain or link to any material which is harmful, threatening, defamatory, obscene, sexually explicit, harassing, promotes violence, promotes discrimination (whether based on sex, religion, race, ethnicity, nationality, disability or age), promotes illegal activities (such as gambling where applicable), contains profanity or otherwise contains materials that are considered objectionable by the Company.
4.2 The Designer represents and warrants that
(a) they have the authority and capacity to enter into and to be bound by this Agreement;
(b) to the best of their knowledge, there are no existing, pending or threatened claims or actions pending against the Designer;
(c) they are currently not a party to an agreement or business relationship which may conflict with this Agreement.
4.3 The Designer covenants and agrees that:
(a) they will, at all times, comply with all laws applicable in the jurisdiction where the Designer is situated and also where the Designer directly or indirectly conducts business in accordance with this Agreement;
(b) they will not enter into any agreement or business relationship or otherwise incur any obligation which the Company may consider to be conflicting with this Agreement;
(c) they will, at all times, comply with the terms of this Agreement, and the Company's Policies, as updated, amended and replaced by the Company, from time to time, in its sole discretion;
(d) they will not, without the written consent of the Company, use or permit any person whom they are legally responsible for to use any third-party trade-names or trade-marks;
(e) they will at all times comply with the terms and conditions of any agreement or policy established by the Advertiser;
(f) they will not attempt in any way to alter, modify, eliminate, conceal or otherwise render inoperable or ineffective any tags, source codes, links, pixels, modules or other data provided by or obtained from the Company;
(g) they will provide the Company with written confirmation of a valid address, telephone number, electronic mail address and other identifying or financial information as the Company may reasonably require.
4.4 The Company furthermore expressly disclaims any responsibility in relation to (i) any claims regarding Advertiser's Products or Materials (ii) any claims regarding the publication of any such Advertiser`s Materials or Products.
5.1 In case the Company has grounds to believe that the Designer has engaged in any activity that the Company considers to be fraudulent or which might bring the reputation or standing of the Company into disrepute either with the general public or with the Advertiser or potential Advertisers, the Company may, in its sole discretion, (a) suspend or terminate this Agreement, without prior notice; (b) release to any third party, information related to the identity and location of the Designer if required in order to enforce these terms and conditions; (с) demand for payment of fine equal to the amount earned by the Designer for advertising campaign; (d) demand reimbursement of all the losses the Company incurred as a result of fraudulent actions by the Designer; and/or(e) withhold any payments due to the Designer.
5.2 In the event of a suspension or termination of the Agreement in accordance with paragraph 5.1, any payment due and payable to the Designer at the time of suspension or termination will be deemed to be forfeited and the Designer waives any rights to receive such payments.
5.3 For the purposes of this Agreement, fraudulent activity shall include:
(a) any intentional abuse of the Platform and/or the Media Channel with the purpose of getting unfair advantage of the Company, the Advertiser or any other third party;
(b) the generation of leads by any mechanism other than approved by the Company;
(с) any other activity the Company may at its sole discretion consider to be fraudulent, harmful or in breach with the Agreement.
5.4. Incentivising the users to perform any actions resulting in a successful conversion event (e.g. by offering virtual or real currency) is strictly prohibited.
5.5 Authorizing or encouraging any third party to generate impressions of or clicks on any Advertisers’ Materials or Products through any deceptive, fraudulent or other invalid means including luring of the users by making false promises or unfair advertisements is strictly prohibited.
5.6 Conversions achieved through providing any incentives shall be deemed invalid. Should the company have grounds to believe that the Designer has breached this clause, it may terminate this Agreement, without a prior notice. This applies to any available Advertiser product unless incentive traffic is explicitly approved by the Advertiser.
5.7 Conversions achieved through the use of any malicious computer programming that automatically generates the traffic shall be deemed invalid. This applies to all relevant advertiser’s products and breach of this clause gives the Company the right to terminate this Agreement, without a prior notice.
5.8 The Company may from time to time audit the Designer for compliance purposes. The Designer agrees to provide the Company with any reasonable information necessary to conduct an investigation into Designer’s compliance with law and this Agreement.
6. INTELLECTUAL PROPERTY RIGHT AND RESPONSIBILITIES FOR ITS VIOLATION
6.2 The Designer may not alter, modify, manipulate or create derivative works of Advertising Materials or any of the Company's graphics, creative, copy or other materials owned by, or licensed to the Company or the Advertiser in any way. The Company reserves a right to revoke the Designer's license anytime by giving a written notice. Except as expressly stated herein, nothing in this Agreement is intended to grant the Designer any rights to any of the Company's trademarks, service marks, copyrights, patents or trade secrets. The Designer agrees that the Company may use any suggestion, comment or recommendation the Designer provides to the Company without compensation. All rights not expressly granted in this Agreement are reserved by the Company.
6.3 The Designer shall not upload, download, display, perform, transmit, or otherwise distribute any Advertising Materials that may violate any third party copyrights, trademarks, or other intellectual property rights. The Designer shall abide copyright ownership laws and any other legislation governing the use of intellectual property. The Designer shall be solely responsible for any violations of any relevant laws and for any infringements of third party rights caused by their action or inaction.
6.4 The Company does not have any authority or ability to control content of the Advertising Materials, therefore cannot bear any responsibility regarding breaching of any third party’s Intellectual property rights. The Designer fully understands that violation of any clause of this chapter may lead to termination of this Agreement and compensation of all losses incurred by the Company.
6.5 The Company reserves the right to use any Advertising Materials submitted by the Designer via the Platform and any statistical data collected from the use of these Advertising Materials to design and develop internal algorithms and systems without a prior notification. Such algorithms and systems are considered to be a commercial secret and are not subject to disclosure to the Designer or any third party.
7.1 The Designer covenants and agrees to indemnify and save harmless the Company itself, it's parent company and their respective shareholders, directors, officers, and employees (collectively, the "Indemnified Group") from and against any and all claims or judgments, including all associated legal fees, expenses and disbursements actually incurred, arising out of any breach of this Agreement by the Designer or any act or omission of the Designer, including without limitation any damages, losses, consequential or otherwise, arising in any manner (including those arising from or incidental to any liability or other lawsuit, claim, demand or other action brought) as a consequence of any act or omission of the Designer or any person whom the Designer legally responsible for. The obligation of the Designer to defend and indemnify as set out in this paragraph will survive termination of this Agreement for any reason and will not be otherwise limited by any other term or condition of this or any Agreement. The Company may at its election in its sole discretion, assume the exclusive defense and control of any matter otherwise.
8. LIMITATION OF LIABILITY
8.1 IN NO EVENT THE COMPANY SHALL BE HELD LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM YOUR USE OF THE SITE, OPERATION OF A PROGRAM, OR YOUR DISPLAY OF ANY PROGRAM CREATIVE ON YOUR MEDIA, INCLUDING BUT NOT LIMITED TO BROKEN IMAGES, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE AND CONSEQUENTIAL DAMAGES, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE INFORMATION, CONTENT AND SERVICES ON THE SITE ARE PROVIDED ON AN “AS IS” BASIS WITHOUT ANY WARRANTY. YOU USE THE SITE AND RUN PROGRAMS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE COMPANY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE OPERATION OF THE SITE, THE INFORMATION, SERVICES, AND CONTENT INCLUDED ON THE SITE AND PROVIDED BY THE COMPANY, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE COMPANY DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ON THIS SITE OR PROVIDED BY THE COMPANY IS ACCURATE, COMPLETE OR CURRENT.
9. DISCLOSURE OF INFORMATION
9.1 The Company or its representatives, may, from time to time, disclose to the Designer certain information relating to the Company's business, its customers, other Designers, subsidiaries, agents, or employees; business and marketing plans, strategies and methods which may not be standard industry practice or which are not generally known in the industry; or studies, charts, plans, tales or compilations of business and industrial information acquired or prepared by or on behalf of the Company (all collectively referred to as the "Confidential Information"). The Designer acknowledges that Confidential Information will be provided at the sole discretion of the Company, and nothing in this Agreement obligates the Company, its directors, agents or employees to disclose or grant to the Designer access to any Confidential Information.
9.2 The Designer shall only use the Confidential Information for the purposes expressly contemplated in this Agreement and guarantees that no Confidential Information will be disclosed to any third party, Designer, subsidiary, agent, or employee of the Designer without the prior written consent of the Company, which may be, in its sole and absolute discretion, withheld.
9.3 The Designer acknowledges that the Company remains the sole and exclusive owner of all rights to, title and interest in the Confidential Information. The Designer agrees that the Confidential Information will not be copied or otherwise reproduced without the express written consent of the Company.
9.4 Upon termination of this Agreement, or whenever demanded by the Company, the Designer agrees that they will promptly deliver to the Company all notes, data, tapes, reference items, sketches, drawings, memoranda, records, electronic communications in any form and any other materials in any way related to any of the Confidential Information in the possession of the Designer or any subsidiary, agent, or employee of the Designer.
10.1 During the term of this Agreement and for a period of eighteen (18) months thereafter, neither party shall, in any way, seek to undermine the goodwill of the other party, and in particular, the Parties will not, directly or indirectly: (a) solicit or entice or attempt to solicit or entice, work away from the other party; (b) solicit or entice or attempt to solicit or entice any of the employees of the party to enter into employment service with the other party or a competitor of the parties; or (c) directly or indirectly enter into any agreement or contract, written or otherwise, with any Advertiser or otherwise provide services to any third party for the ultimate benefit of an Advertiser which might, in the opinion of the Company or the Designer, compete with any services provided by the Parties to that Advertiser. This provision is not applicable to the contracts and agreements entered into before the Effective date.
11. FORCE MAJEURE
11.1 Neither party will be held liable, or be considered to be in breach of this Agreement, on account of such party's delay or failure to perform as required under the terms of this Agreement as a result of any causes or conditions that are beyond such party's reasonable control and that such party is unable to overcome through the exercise of commercially reasonable diligence (a "Force Majeure Event"). If any such Force Majeure Event occurs including, without limitation, acts of God, fires, explosions, telecommunications, Internet or results of vandalism or computer hacking, storm or other natural occurrences, national emergencies, acts of terrorism, insurrections, riots, wars, strikes or other labor difficulties, or any act or omission of any other person or entity, the affected party will give the other party notice and will use commercially reasonable efforts to minimize the impact of any such event.
12.1 This Agreement may be terminated by either Party upon seven (7) business days´ notice. This Agreement shall terminate immediately upon the dissolution or insolvency of either Party, or the breach of this Agreement by the Designer.
13.1 The Designer shall not be deemed an agent, employee, or partner of the Company. The parties expressly agree that they are independent contractors, and that this Agreement does not in any way create a partnership, nor have the parties granted to each other any right or authority to assume or create any obligation of responsibility, express or implied, on behalf of or in the name of the other, or to bind the other in any manner whatsoever.
13.2 The Company reserves the right, in its sole and absolute discretion, to remove any Advertising Materials at any time for any reason with a 24 hour notice. In emergency cases including but not limited to law violation, authority claims, potential harm for the Company, Advertiser or Designer, etc., the Company reserves the right to terminate the campaign immediately.
13.3 The Designer shall under no circumstances create or assume in the Company's name or on its behalf any obligation, express or implied, or act as its agent or representative for any purpose.
13.4 The Company may, in its sole discretion, confirm or otherwise verify or check, the truth and accuracy of any registration information provided by the Designer. If at any time the Company, in its sole judgment and discretion, determines the Designer`s registration information to be misleading, inaccurate or untruthful, the Company may restrict, deny or terminate the Designer's account, Designer's access and use of, and/or any benefits derived from the use of the Platform; the Company may also withhold payment of any commissions and/or other fees that may be or become due or payable to the Designer.
13.5 The Company may assign this Agreement without the Designer's prior consent. The Designer may not assign this Agreement without the express written consent of the Company.
13.6 The Company reserves the right to change, amend or alter this Agreement at any time at its sole discretion with or without a written notice. The most recent version of this Agreement shall be available at https://appness.com/legal/?part=mba.
13.7 Any notice or other communication permitted or required by this Agreement will be in writing and given by electronic mail to the receiving party at the address provided to the Company by the Designer in the Designer’s Account. Any such notice shall be deemed received within one hour after emailing it.
13.8 No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving Party.
13.9 If any provision or clause of the Agreement is determined to be invalid, illegal or unenforceable in any respect under any applicable law, then such provision will be severed and replaced with a new provision that most closely reflects the real intention of the parties, and the remaining provisions of the Agreement will remain in full force and effect.
13.10 This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this agreement, supersedes any previous or contemporaneous representations, negotiations, understandings, and agreements, oral or written.
13.11 The Parties agree that all representations and warranties made by them in this Agreement shall survive the termination of this Agreement.
13.12 The headings and numbering of the different paragraphs of this Agreement are inserted for convenient reference only and are not to be taken as part of this Agreement or to control or affect the meaning, construction or effect of the same.
13.13 The Parties agree to perform any further acts and execute and deliver any further documents that may be reasonably necessary to carry out the provisions of this Agreement.
13.14 This Agreement shall be governed by, construed and enforced in accordance with the laws of Cyprus. Any dispute, controversy or claim which may arise out of or in connection with the present Agreement, or the execution, breach, termination or invalidity thereof, shall be settled by the court in Cyprus in accordance with the laws of Cyprus.