THIS AGREEMENT (the “Agreement”) is made between:
- Mosaic Data Services, Inc. located in Gaithersburg, MD and registered in the State of Maryland (“Mosaic”).
- The party entering into this Agreement, the details of which have been provided to Mosaic electronically as a necessary part of the process of accepting this Agreement (the “Affiliate”).
The definitions and rules of interpretation in this clause apply in this agreement.
Affiliate Web Link Pages: any web pages of the Affiliate Website that features a Tracked Hyperlink.
Affiliate Website: Any website owned or operated by the Affiliate.
Business Day: a day other than a Saturday, Sunday or public holiday when the US Government is open for business.
Commission Rate: in respect of each Transaction, the rate set out on the Website on the ‘Become an Affiliate’ page.
Effective Date: the date on which this Agreement is accepted by the Affiliate.
Reference Code: a unique identifying code that is particular to the Affiliate, which Mosaic Users may input at the time that they purchase.
Tracked Hyperlink: a hyperlink that enables, by way of cookies or otherwise, Mosaic to identify individual users that have accessed the Mosaic Website by way of that particular hyperlink.
Transaction: a purchase of any products or services offered for sale on Mosaic Website by a Mosaic User who has (a) clicked through directly to Mosaic Website from the Affiliate Web Link Pages where that purchase is completed during a single browser session, or (b) provided the Reference Code at the time that it makes that purchase.
Mosaic User: a user who has clicked through to the Mosaic Website from the Affiliate Web Link Pages, or a user that has provided a Reference Code.
Mosaic Website: Mosaic’s website at any time and from time to time, at www.Mosaicdataservices.com and including all databases, software, domain names, infrastructure, products and services that Mosaic markets for use by individual users to shop for Mosaic’s products and services. Mosaic Website includes all future versions and replacements of, and successors to, the site.
1.1. Clause, Schedule and paragraph headings shall not affect the interpretation of this agreement.
1.2. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.3. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.4. Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular.
1.5. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.6. A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.7. A reference to writing or written includes faxes and e-mail.
1.8. References to clauses and Schedules are to the clauses and Schedules of this agreement and references to paragraphs are to paragraphs of the relevant Schedule.
1.9. Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
- MOSAIC’S OBLIGATIONS
2.1. Mosaic may provide the Affiliate with:
(a) one or more cookies (or similar internet tracking software packages) to enable it to create Tracked Hyperlinks; and/or
(b) a Reference Code for it to provide to potential purchasers of Mosaic’ products and services.
2.2. Mosaic shall be responsible for developing, operating and maintaining the Mosaic Website.
2.4. Within 14 days after the end of each calendar month, Mosaic will provide the Affiliate with a report in Mosaic’s standard form setting out for the month concerned the total number of:
(a) occasions when a Mosaic User has clicked directly through to Mosaic Website from the Affiliate Web Link Pages;
(b) occasions when a Mosaic User has engaged in a Transaction
2.5. Mosaic may at any time or times without notice to Affiliate:
(a) change the name of Mosaic Website;
(b) change Mosaic Trademark Guidelines; and
(c) target Mosaic Website at potential customers in such additional country or countries as it chooses.
2.6. This agreement is non-exclusive and does not prevent or restrict Mosaic from entering into similar or different agreements with third parties. Mosaic makes no representation that the terms of this agreement are similar to or the same as the terms of any other agreement it has entered or may enter into with any third party.
- AFFILIATES OBLIGATIONS
3.1. The Affiliate shall be responsible for developing, operating and maintaining the Affiliate Website and for all materials that appear on it. In particular, but without limiting the generality of the foregoing, the Affiliate shall be responsible for:
(a) the proper functioning and maintenance of all Trackable Hyperlinks; and
(b) compliance with Mosaic Trademark Guidelines.
3.2. The Affiliate shall submit to Mosaic for prior approval any proposed use of any Mosaic trade mark, domain name, logo, and other elements of branding that the Affiliate may wish to make. Mosaic shall review the proposed use within a reasonable time (being ordinarily not longer than seven days) and shall not unreasonably refuse or delay approval.
3.3. The Affiliate shall provide Mosaic with:
(a) all co-operation in relation to this agreement; and
(b) all access to such information as may be required by Mosaic, as is necessary for the proper performance of Mosaic’s obligations under this agreement.
3.4. The Affiliate acknowledges and agrees that it has no authority to legally bind Mosaic in relation to Mosaic Users, other users or anyone else and that it has not been appointed and is not the agent of Mosaic for any purpose. The Affiliate agrees that it shall not make to anyone any representation or commitment about Mosaic, Mosaic Website or any of the products or services available to be bought on Mosaic Website.
– Unsolicited mass e-mail solicitations, IRC postings or any other form of spamming, including but not limited to, newsgroups or AOL customers or otherwise violate the anti-spamming policies of Mosaic Data Services or state law;
– Provide inaccurate or incomplete information to Mosaic Data Services concerning your identity, address or other required information;
– Attempt to cheat, defraud or mislead us in any way;
– Misrepresent to the public the terms and conditions of our sites or your sites;
– Engage in popup advertisement network activities;
– iFrames may not be used unless given express permission by Mosaic Data Services, sales made through hidden IFrames or Cookie Stuffing methods will be considered invalid
3.6. You are required to comply with the following rules when bidding on keywords on any paid search engines or social media site, including without limitation, Google, Yahoo/Bing, Twitter and Facebook:
-You are prohibited from bidding on any Mosaic trademarks, or any variations and misspellings thereof without Mosaic Data Service’s prior written approval. Examples of prohibited keywords are “MosaicDataServices,” “MDS,” “mosaicdataservices.com,” “www.mosaicdataservices.com,” “mosaic data,” “mosaic data services reviews,” “mosaic,” “mosaic hosting,” and “mosiac” – You are prohibited from bidding on keywords containing Mosaic trademarks plus an additional term such as [mosaic coupons], [mosaic promotions], and [mosaic promos] Further, Affiliates are NOT permitted to broad or phrase match any of these keywords.
– You are prohibited from outranking Mosaic’s internal paid search ad on any keywords.
– You are prohibited from direct linking to MosaicDataServices.com from any paid search ads.
– You are prohibited from using mosaicdataservices.com as a display URL.
All materials, including without limitation, ad copy, coupons, and promotions on your Affiliate Site must accurately represent active and valid promotions. For example, you may not display an ad on your Affiliate Site for a promotion that has expired. We continue to monitor all paid search landscapes. If you are determined to be in violation of this section your participation in the program may be terminated. For more information on match types, please visit Google’s overview of match types.
- CHARGES, PAYMENT AND THRESHOLD
4.1. Mosaic will pay the Affiliate at the Commission Rate in respect of the total value of each Transaction.
4.2. Commission is payable on a receipt, not accrual, basis. If Mosaic receives no revenue on any Transaction, no commission is due or payable. Commissions deemed due and owed to you under the program will be paid to you directly by Mosaic Data Services in accordance with a regular payout cycle established by Mosaic Data Services. No commission will be paid for signups by you, your household, or anyone within your organization. Mosaic Data Services reserves the right to only pay for referrals it deems legitimate and active. Legitimate is defined as upon full payment by clients for service. Active is defined by clients with a website and domain name pointed to a Mosaic server with user uploaded content. Commissions can be earned per each new client referred through the unique affiliate link. An existing customer, defined by any client who has had an existing account with us at any time in the past, would not be eligible for a commission with the program. Referrals who have signed up using free domain name services will be subject to manual inspection and may be deemed invalid by Mosaic. We reserve the right to cancel any of your affiliate coupons, even if you are currently using the coupon. All coupons created internally for Mosaic promotion are ineligible for affiliate commission. PayPal payments will only be reissued within 120 days of the original issue date in the case of incorrect PayPal address or refusal from PayPal to accept payment.
4.3. Affiliate acknowledges and agrees that no payments are due to it under this agreement other than as expressly set out in this agreement.
4.4. All sums payable under this agreement will be paid on a 1099 basis. It is Your responsibility to provide Mosaic Data Services with the tax and payment information required to issue a Commission Fee to you. If Mosaic does not receive the necessary tax or payment information within 120 days of a Commission Fee being earned, Mosaic will consider that Commission Fee to be forfeited by the Affiliate, and no payment will be issued. Each Affiliate is required to submit a W8/W9 tax form before Mosaic will issue any Commission Fees. You are responsible for the payment of all taxes related to the commissions you earn under this Agreement. In compliance with tax laws, Mosaic will issue a Form 1099 to Affiliates whose earnings meet or exceed the applicable amount warranting the Form 1099. You will be required to provide us with proper address, tax forms (including W8/W9 or other tax forms) or information within two (2) days of any request issued by Mosaic to issue a Form 1099. Any address changes must be made in the Affiliate profile in the Affiliate Console at least 15 business days prior to the end of the calendar month in order for Commissions for that month to be sent to the revised address.”
4.5. The report that Mosaic sends to the Affiliate under clause 2.4 shall include a statement of the amounts due from Mosaic to the Affiliate for Transactions in the month to which the report relates. Except in the case of manifest error, Mosaic shall pay the Affiliate the amount thereby shown to be due within 30 days after the date of the report.
4.6. Minimum payment threshold is $100. Affiliates must earn a minimum affiliate account balance of $100 or more before their account is eligible for payment. Commission amounts earned for less than $100 (for example, 1 sale for $50) will remain pending until the full $100 minimum balance has been earned. All sales still pending due to the minimum payment threshold must remain active and in good standing according to our Terms of Service (TOS) and Acceptable Use Policy (AUP) requirements in order to be eligible for payment. Sales that are found not to be valid according to our TOS requirements at the time of the additional sale and earnings will be marked as invalid and not payable. Therefore there will be the requirement that 2 sales, or $100 in minimum earnings be valid according to our sale requirements listed in our TOS in order for payment to be sent. There is a $100 minimum threshold for Commission Fees. If you do not meet the minimum threshold of $100 within 180 days after the end of the month in which a Qualified Purchase was properly completed, commission payments will be forfeited and your commission balance will revert to $0.
- PROPRIETARY RIGHTS
The Affiliate acknowledges and agrees that Mosaic and its licensors own all intellectual property rights in Mosaic Website and all Mosaic’s products and services. Except as expressly stated herein, this agreement does not grant the Affiliate any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences belonging to Mosaic. All such rights are reserved to Mosaic.
6.1. Each party undertakes that it shall not at any time during this agreement, and for a period of five years after termination of this agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 15.2.
6.2. Each party may disclose the other party’s confidential information:
(a) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 6; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
6.3. No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.
6.4. Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
6.5. This clause 6 shall survive termination of this agreement, however arising.
The Affiliate shall indemnify Mosaic against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by Mosaic arising out of or in connection with the Affiliate’s website or the marketing or sale of products or services on that website.
- LIMITATION OF LIABILITY
8.1. This clause 8 sets out the entire financial liability of Mosaic (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Affiliate:
(a) arising under or in connection with this agreement; and
(b) in respect of any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with this agreement.
8.2. Except as expressly and specifically provided in this agreement, all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement.
8.3. Nothing in this agreement excludes the liability of Mosaic:
(a) for death or personal injury caused by Mosaic’s negligence; or
(b) for fraud or fraudulent misrepresentation.
8.4. Subject to clause 8.3:
(a) Mosaic shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation (whether innocent or negligent), restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss costs, damages, charges or expenses however arising under this agreement; and
(b) Mosaic’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the amount paid under this agreement by Mosaic to the Affiliate during the 12 months preceding the date on which the claim arose.
- DURATION AND TERMINATION
9.1. This agreement shall begin upon our acceptance of your Affiliate Program Application and shall continue thereafter unless otherwise terminated as provided in this clause 9 by either party.
9.2. Mosaic may terminate this Agreement at any time, with or without cause, by giving the other party notice of termination. Mosaic will endeavor to give Affiliate as much notice of the same as reasonably practicable, but any such termination will be without liability to Affiliate. Notice by email to your email address on our records, is considered sufficient notice to terminate this Agreement.
9.3. If this Agreement is terminated because you have violated the terms of this Agreement, you are not eligible to receive any commissions payments, even for commissions earned prior to the date of termination. If this Agreement is terminated for any other reason, you are only eligible to earn commission on sales occurring during the term of the Agreement, and commissions earned through the date of termination will remain payable only if the related orders are not canceled or returned. We reserve the right to withhold your final payment for a reasonable time to ensure that the correct amount is paid.
- CONSEQUENCES OF TERMINATION
On termination of this agreement for any reason:
(a) all licences and benefits granted under this agreement shall immediately terminate (including any right for the Affiliate to use any branding or trademarks of Mosaic);
(b) each party shall return and make no further use of any equipment, property, materials and other items (and all copies of them) belonging to the other party; and
(c) the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
(d) Terminated accounts cannot later apply to the Program without express written consent of Mosaic Data Services.
- FORCE MAJEURE
Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for six months, the party not affected may terminate this agreement by giving 30 days’ written notice to the affected party.
No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
- RIGHTS AND REMEDIES
The rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
14.1. If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this agreement.
14.2. If one party gives notice to the other of the possibility that any provision or part-provision of this agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
- ENTIRE AGREEMENT
15.1. This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
15.2. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
15.3. Each party agrees that the only rights and remedies available to it arising out of or in connection with a Representation shall be for breach of contract as expressly provided in this agreement.
15.4. Nothing in this clause shall limit or exclude any liability for fraud.
- ASSIGNMENT AND OTHER DEALINGS
16.1. The Affiliate shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under this agreement without the prior written consent of Mosaic.
16.2. Mosaic may at any time assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under this agreement.
- NO PARTNERSHIP OR AGENCY
Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.
No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
- THIRD PARTY RIGHTS
A person who is not a party to this agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.
20.1. Any notice or other communication given to a party under or in connection with this agreement shall be in writing and shall be sent by e-mail to the regular general communications e-mail address of the other party, or such e-mail address as the parties may agree between them (including by way of a course of dealing).
- GOVERNING LAW
This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with the laws of the State of Maryland.
Each party irrevocably agrees that the courts in the State of Maryland shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).