Marketing Shouts a part of TasteWant Limited (“MARKETING SHOUTS”) who maintains this site (the “Site”) for your personal information, education, and communication. Please feel free to browse the Site. You may download material displayed on the Site for noncommercial, personal use only, provided you also retain all copyright and other proprietary notices contained on the materials. You may not, however, distribute, modify, transmit, reuse, report, or use the contents of the Site for public or commercial purposes, including the text, images, audio, and video without the written permission of the MARKETING SHOUTS.
Your access and use of the Site is also subject to the following terms and conditions (“Terms and Conditions”) and all applicable laws. By accessing and browsing the Site, you accept, without limitation or qualification, the Terms and Conditions and acknowledge that any other agreement between you and the MARKETING SHOUTS, are superseded and of no force or effect.
Terms and Conditions
- You should assume that everything you see or read on the Site is copyrighted unless otherwise noted and may not be used except as provided in these Terms and Conditions or in the text on the Site without the written permission of the MARKETING SHOUTS. The MARKETING SHOUTS, neither warrants nor represents that your use of materials displayed on the Site will not infringe rights of third parties not owned by or affiliated with the MARKETING SHOUTS.
- While the MARKETING SHOUTS, uses reasonable efforts to include accurate and up-to-date information on the Site, the MARKETING SHOUTS, makes no warranties or representations as to its accuracy. The MARKETING SHOUTS, assumes no liability or responsibility for any errors or omissions in the content on the Site.
- Your use and browsing of the Site is at your risk. Neither the MARKETING SHOUTS, nor any other party involved in creating, producing, or delivering the Site is liable for any direct, incidental, consequential, indirect, or punitive damages arising out of your access to, or use of, the Site. Without limiting the foregoing, everything on the Site is provided to you “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. Please note that some jurisdictions may not allow the exclusion of implied warranties, some of the above exclusions may not apply to you. Check your local laws for any restrictions or limitations regarding the exclusion of implied warranties. The MARKETING SHOUTS, also assumes no responsibility and shall not be liable for any damages to, or viruses that may infect, your computer equipment or other property on account of your access to, use of, or browsing in the Site or your downloading of any materials, data, text, images, video, or audio from the Site.
- Any communication or material you transmit to the Site by electronic mail or otherwise, including any data, questions, comments, suggestions, or the like is, and will be treated as, nonconfidential and nonproprietary. Anything you transmit or post may be used by the MARKETING SHOUTS, or its affiliates for any purpose, including but not limited to reproduction, disclosure, transmission, publication, broadcast, and posting. Furthermore, the MARKETING SHOUTS, is free to use any ideas, concepts, know-how, or techniques contained in any communication you send to the Site for any purpose whatsoever, including but not limited to developing, manufacturing, and marketing products using such information.
- Images of people or places displayed on the Site are either the property of, or used with permission by, the Marketing Shouts The use of these images by you, or anyone else authorized by you, is prohibited unless specifically permitted by these Terms and Conditions or specific permission provided elsewhere on the Site. Any unauthorized use of the images may violate copyright laws, trademark laws, the laws of privacy and publicity, and communications regulations and statutes.
- The trademarks, logos, and service marks (collectively the “Trademarks”) displayed on the Site are registered and unregistered Trademarks the MARKETING SHOUTS, and others. Nothing contained on the Site should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark displayed on the Site without the written permission of the MARKETING SHOUTS, or such third party that may own the Trademarks displayed on the Site. Your misuse of the Trademarks displayed on the Site, or any other content on the Site, except as provided in these Term and Conditions, is strictly prohibited. You are also advised that the MARKETING SHOUTS, will aggressively enforce its intellectual property rights to the fullest extent of the law, including the seeking of criminal prosecution.
- The Marketing Shouts has not reviewed all of the sites linked to the Site and is not responsible for the contents of any off-site pages or any other sites linked to the Site. Your linking to any other off-site pages or other sites is at your own risk.
- Although the Marketing Shouts may from time to time monitor or review discussions, chats, postings, transmissions, bulletin boards, and the like on the Site, the MARKETING SHOUTS, is under no obligation to do so and assumes no responsibility or liability arising from the content of any such locations nor for any error, defamation, libel, slander, omission, falsehood, obscenity, pornography, profanity, danger, or inaccuracy contained in any information contained within such locations on the Site. You are prohibited from posting or transmitting any unlawful, threatening, libelous, defamatory, obscene, scandalous, inflammatory, pornographic, or profane material or any material that could constitute or encourage conduct that would be considered a criminal offense, give rise to civil liability, or otherwise violate any law. The MARKETING SHOUTS, will fully cooperate with any law enforcement authorities or court order requesting or directing the MARKETING SHOUTS, to disclose the identity of anyone posting any such information or materials.
The MARKETING SHOUTS, may at any time revise these Terms and Conditions by updating this posting. You are bound by any such revisions and should therefore periodically visit this page to review the then current Terms and Conditions.
The policy sets out the different areas where user privacy is concerned and outlines the obligations & requirements of the users, the website and website owners. Furthermore the way this website processes, stores and protects user data and information will also be detailed within this policy.
This website and its owners take a proactive approach to user privacy and ensure the necessary steps are taken to protect the privacy of its users throughout their visiting experience. This website complies to all UK national laws and requirements for user privacy.
Cookies are small files saved to the user’s computers hard drive that track, save and store information about the user’s interactions and usage of the website. This allows the website, through its server to provide the users with a tailored experience within this website.
Users are advised that if they wish to deny the use and saving of cookies from this website on to their computers hard drive they should take necessary steps within their web browsers security settings to block all cookies from this website and its external serving vendors.
Other cookies may be stored to your computers hard drive by external vendors when this website uses referral programs, sponsored links or adverts. Such cookies are used for conversion and referral tracking and typically expire after 30 days, though some may take longer. No personal information is stored, saved or collected.
Contact & Communication
Users contacting this website and/or its owners do so at their own discretion and provide any such personal details requested at their own risk. Your personal information is kept private and stored securely until a time it is no longer required or has no use, as detailed in the Data Protection Act 1998. Every effort has been made to ensure a safe and secure form to email submission process but advise users using such form to email processes that they do so at their own risk.
This website and its owners use any information submitted to provide you with further information about the products / services they offer or to assist you in answering any questions or queries you may have submitted. This includes using your details to subscribe you to any email newsletter program the website operates but only if this was made clear to you and your express permission was granted when submitting any form to email process. Or whereby you the consumer have previously purchased from or enquired about purchasing from the company a product or service that the email newsletter relates to. This is by no means an entire list of your user rights in regard to receiving email marketing material. Your details are not passed on to any third parties.
This website operates an email newsletter program, used to inform subscribers about products and services supplied by this website. Users can subscribe through an online automated process should they wish to do so but do so at their own discretion. Some subscriptions may be manually processed through prior written agreement with the user.
Subscriptions are taken in compliance with UK Spam Laws detailed in the Privacy and Electronic Communications Regulations 2003. All personal details relating to subscriptions are held securely and in accordance with the Data Protection Act 1998. No personal details are passed on to third parties nor shared with companies / people outside of the company that operates this website. Under the Data Protection Act 1998 you may request a copy of personal information held about you by this website’s email newsletter program. A small fee will be payable. If you would like a copy of the information held on you please write to the business address at the bottom of this policy.
Email marketing campaigns published by this website or its owners may contain tracking facilities within the actual email. Subscriber activity is tracked and stored in a database for future analysis and evaluation. Such tracked activity may include; the opening of emails, forwarding of emails, the clicking of links within the email content, times, dates and frequency of activity [this is by no far a comprehensive list].
This information is used to refine future email campaigns and supply the user with more relevant content based around their activity.
In compliance with UK Spam Laws and the Privacy and Electronic Communications Regulations 2003 subscribers are given the opportunity to un-subscribe at any time through an automated system. This process is detailed at the footer of each email campaign. If an automated un-subscription system is unavailable clear instructions on how to un-subscribe will by detailed instead.
Although this website only looks to include quality, safe and relevant external links, users are advised adopt a policy of caution before clicking any external web links mentioned throughout this website. (External links are clickable text / banner / image links to other websites, similar to; TasteWant or TasteWant Marketplace.)
The owners of this website cannot guarantee or verify the contents of any externally linked website despite their best efforts. Users should therefore note they click on external links at their own risk and this website and its owners cannot be held liable for any damages or implications caused by visiting any external links mentioned.
Adverts and Sponsored Links
This website may contain sponsored links and adverts. These will typically be served through our advertising partners, to whom may have detailed privacy policies relating directly to the adverts they serve.
Social Media Platforms
Communication, engagement and actions taken through external social media platforms that this website and it’s owners participate on are custom to the terms and conditions as well as the privacy policies held with each social media platform respectively.
Users are advised to use social media platforms wisely and communicate / engage upon them with due care and caution in regard to their own privacy and personal details. This website nor its owners will ever ask for personal or sensitive information through social media platforms and encourage users wishing to discuss sensitive details to contact them through primary communication channels such as by telephone or email.
This website may use social sharing buttons which help share web content directly from web pages to the social media platform in question. Users are advised before using such social sharing buttons that they do so at their own discretion and note that the social media platform may track and save your request to share a web page respectively through your social media platform account.
Shortened Links in Social Media
This website and its owners through their social media platform accounts may share web links to relevant web pages. By default some social media platforms shorten lengthy urls [web addresses].
Users are advised to take caution and good judgement before clicking any shortened urls published on social media platforms by this website and its owners. Despite the best efforts to ensure only genuine urls are published many social media platforms are prone to spam and hacking and therefore this website and its owners cannot be held liable for any damages or implications caused by visiting any shortened links.
Affiliate Terms and Conditions:
Affiliates: Marketing Shouts (part of TasteWant Limited) has the right to refuse service to any new or existing affiliate, in its sole discretion, with our without cause. Marketing Shouts reserves the right to refuse to do business with anyone, at any time, for any reason.
Marketing Shouts reserves the right, without liability, to reject, omit or exclude any affiliate, webmaster or website for any reason at any time, with or without notice and regardless of any previous conditions.
Each affiliate entity is only permitted 1 affiliate account. If you need to track different promotions then use our powerful Marketing Shouts feature of subids, which are explained in the Promotion -> Advanced -> Subid section. Multiple commissions earned from the same promotion are tracked and easily found using timestamps and will be cancelled
By using our Affiliate Program, You warrant that:
You are 18 years of age and that there is no legal reason that You cannot enter into a binding agreement.
You are the owner or are licensed to use the entire contents contained on Your website.
Your website and/or newsletter does not violate any law or regulation.
Your website and/or newsletter does not contain misrepresentation or content that is defamatory or violates any rights of privacy or publicity.
Your website and or/newsletter does not and will not infringe any copyright, trademark, patent or other proprietary right.
You place our banners anywhere on your site as you see fit, or within non-spam emails.
NOT ALLOWED: All other uses of banners or links, such as newsgroups, chat rooms, message boards, banner networks, counters, or guestbooks etc. are NOT allowed.
Failure to abide by these rules could mean termination from Affiliate Program.
Fraud is a serious offense, and will be treated as such. Fraud is defined as any action that intentionally attempts to create sales or click-throughs using robots, scripts, or manually “refreshing” of pages, for the sole purpose of creating commissions.
Marketing Shouts respects the privacy of its users and promises not to disclose personal or business information to third parties without the express permission of You and Your company. We will not sell Your name, e-mail address, phone number, or any other personal information to anyone else. We consider this information to be private, and it will remain as such. If You have any questions about Your privacy rights, contact us at firstname.lastname@example.org
Marketing Shouts is operated by TasteWant Limited. TasteWant Limited is responsible for payouts of affiliate commissions and all financial transactions related to Marketing Shouts. You will receive a commission for sending a authorized sales via your links. In order to place links, You must first accept these terms and conditions. You understand that the payout amount may be changed at any time. You are responsible for determining if the payout for a link You have placed on Your site has changed or been discontinued. You receive the commission from TasteWant Limited. Payments are made automatically on the first (1st) day of each month when Your account balance reaches £30 or more for the previous months’ transactions. Money credited to Your account does not accrue interest. Affiliate program accepts also self-purchases.
Refunds, Chargebacks and Bad Cheques:
If an order is later refunded to the customer or charged back by the customer, or if a customer’s check does not clear, the referral fee, and any Affiliate charge back fees, will be deducted from the next monthly payment sent to the Affiliate.
Merchant Terms and Conditions:
The following terms shall have the meanings set forth below:
“Account Detail” means Merchant name, Merchant Sites, Merchant’s contact information—including, but not limited to any contact name, email address, physical address, and telephone number.
“Affiliate” means a person or company that agrees to promote Merchant Services or the Merchant Site in accordance with Merchant Terms and Merchant Campaign Terms in exchange for a Commission.
“Affiliate Event” means an individual action by an End User; such as a Click Event, Lead Event, Sale Event, Call Event, Revenue Event, or any other action taken whilst using Marketing Shouts campaign; for which Commission is owed to an Affiliate by the Merchant unless invalidated in accordance with this Agreement.
“Affiliate Program” means a pay-for-performance program where an Affiliate receives a Commission for sending an End User to the Merchant Site which then generates an Affiliate Event.
“Affiliate Promotion” means any link, banner, and other creative used by an Affiliate on any electronic device (e.g., laptop, desktop, mobile phone, etc.) or printed material (e.g., magazine ad, signage, etc.) to promote a merchant’s product or services with the intention of receiving compensation from the merchant through their Affiliate Program powered by Marketing Shouts.
“Campaign” means a logical grouping of Merchant Links and Events in the Marketing Shouts Affiliate Program through which a Merchant manages their program using the Marketing Shouts Merchant Manager within the dashboard. By way of example, a Campaign might be called ‘Chocolate Promotion’ and include Merchant Links which promote their artisan chocolate bar which will record the sales of their chocolate.
“Click Event” is an Affiliate Event that allows the Merchant to credit Affiliates for incoming clicks originating from an Affiliate Promotion to the Merchant Site. The minimum Commission payable to Affiliates for a successful sale is 10% of the total basket price (this does not include the 10% sales commission payable to Marketing Shouts).
“Commission” is the amount payable to Affiliates for Affiliate Events. The Merchant, generally in the form of either a percentage of the sale amount determines commission amounts.
“Cookie Duration” is an Event property representing the period in which an End User can return to Merchant Site and an Affiliate might still receive a Commission.
“End User” means an Internet user who clicks to the Merchant Site using a Merchant Link.
“End User Data” means all information and data of an End User collected by Merchant, including, but not limited to, name, address, telephone number and email address.
“Expired Code” means any Marketing Shouts Merchant Code associated with an expired Campaign or no longer associated with an active Campaign.
“Event” is either an Affiliate Event or a Merchant Event.
“Event State” is an Affiliate Event designated as a Valid Event, Pending Event, or Invalid Event.
“Inoperable Code” means any Marketing Shouts Merchant Code or Naked Link Code provided by Marketing Shouts to Merchants’ that is either modified by Merchant without Marketing Shoutss approval or is missing from Merchant Site resulting in Affiliate Event(s) not being tracked or being tracked erroneously.
“Intellectual Property” means all industrial and intellectual property rights existing from time to time including any patents, design rights, registered designs, trademarks, service marks, copyrights, moral rights, trade secrets, know-how, and all applications and registrations therefore, and all goodwill associated therewith.
“Invalid Event” is an Affiliate Event that has been disapproved by Merchant or Marketing Shouts for Commission payment to Affiliate.
“Marketing Shouts Merchant Manager” is the web-based interface that can be accessed through username and password, which a Merchant uses to manage its Merchant Affiliate Program. The Marketing Shouts Merchant Manager is accessible on Marketing Shouts’s login page at: http://promote.Marketing Shouts.com/merchants/signup.php
“Marketing Shouts Services” means the various related content, links, products and services provided by Marketing Shouts on or through the Marketing Shouts Site.
“Marketing Shouts Site” means the Internet World Wide Web presence operated by or for Marketing Shouts, located on the Internet through the http://www.Marketing Shouts.com and http://promote.Marketing Shouts.com URL (as modified to comply with the provisions of this Agreement, and future versions, upgrades, successors and replacements thereof).
“Marketing Shouts Transaction Table” means a table in Marketing Shouts’s online database that contains information about End User actions related to Merchant Links, Events, and related Affiliates.
“Marks” means logos, trademarks, trade names, service marks or other identifying emblems, words or designs of Marketing Shouts or Merchant, as the case may be, to designate and identify itself or the particular products or services its offers.
“Merchant Account” is the Merchant’s Account.
“Merchant Affiliate Program” means all of the Merchant’s past and present Campaigns within the Marketing Shouts dashboard.
“Merchant Campaign Terms” are the terms set by the Merchant as conditions for participating in a particular Merchant’s Campaign. At a minimum they include this Agreement in its entirety, the Merchant’s Terms and any Campaign-specific terms reflected in the Merchant Campaign information available to an Affiliate online through the Marketing Shouts Affiliate Manager.
“Merchant Event” is any Tracking Event added by Merchant on which an End User clicks and for which the action is tracked and recorded in a Marketing Shouts Transaction Table.
“Merchant Link(s)” means an advertisement in the form of a banner, text link, or object (e.g., HTML creative, Flash creative, etc.) used in an Affiliate Promotion. When clicked, the link directs an End User to the Merchant Site.
“Merchant Service(s)” means the product(s) or service(s) offered by the Merchant through the Merchant Site.
“Merchant Site” means the Internet World Wide Web presence operated by or for Merchant, (as modified to comply with the provisions of this Agreement, and future versions, upgrades, successors and replacements thereof).
“Merchant Terms” are the terms set by the Merchant as conditions for participating in their Merchant Affiliate Program. At a minimum they include this Agreement in its entirety and any account-specific terms reflected in the Merchant Campaign information available to an Affiliate online through the Marketing Shouts Affiliate Manager.
“Merchant Transaction(s)” means any Event caused by the action of an End User, which is recorded by Marketing Shouts and written to the Marketing Shouts Transaction Table.
“Monthly Closeout” occurs at midnight BST time 1st day after the end of a month.
“Naked Link Campaign” is a type of Campaign where Affiliates send traffic directly to Merchant and Marketing Shouts tracks through Marketing Shouts’s proprietary Naked Link Code.
“Naked Link Code” is code placed on Merchant Site that records all visits by Affiliates approved on Merchant’s Naked Link Campaign.
“Pending Event” is an Affiliate Event that is being considered for approval as a Valid Event or disapproval as an Invalid Event by Merchant or Marketing Shouts.
“Replenishment Value” means the amount, as determined by the Merchant or Marketing Shouts, which shall be added to the Prepay Account, defined herein, when the Threshold Value is reached (30 GBP).
“Revenue Event” is an Affiliate Event that allows the Merchant to reward an Affiliate beyond any Commissions paid for individual Merchant Transactions.
“Sale Event” is an Affiliate Event that allows the Merchant to credit Affiliates for purchases by an End User of Merchant Services on the Merchant Site. The minimum Commission payable to Affiliates for a Sale Event is as listed in the Marketing Shouts Merchant Manager at the time the event is created.
“Server Side Cookie” is information, stored by Marketing Shouts, about End User actions related to Affiliate Promotion. This information is stored in a Marketing Shouts Transaction Table at the time of a click from the End User to the Merchant Site.
“Service Level Guarantee” means the Marketing Shouts Site will be unavailable to the general public for no more than forty-eight (48) aggregate hours during any thirty (30) day period, excluding routine maintenance.
“Service Level Minimums” means industry standard service levels for like services, including, without limitation, standards for supporting online transactions, providing accurate and secure transmission of personal, credit card and other information, prevention of unauthorized access to End User Data, and availability of the Merchant Site to End Users.
“Threshold Value” means the amount, as determined by the Merchant or Marketing Shouts, in the Prepay Account, defined herein, at which the account requires replenishment.
“Tracking Event” is an Event that allows the Merchant to track the arrival and activity of an Internet user on the Merchant Site.
“Valid Event” is an Affiliate Event that has been approved by Merchant or Marketing Shouts for Commission payment to Affiliate.
All other initially capitalized terms shall have the meanings assigned to them in this Agreement.
2 LICENSES/OWNERSHIP OF Marketing Shouts SITE.
2.1Rights Granted by Merchant.
(a) License; License Restrictions. Merchant grants to Marketing Shouts a nonexclusive, nontransferable, royalty-free (without right to sublicense) license to use and display, during the Term of this Agreement, the Merchant Marks, solely for the purpose of promoting the Merchant Affiliate Program and to link to the Merchant Site. Marketing Shouts agrees that the Merchant Marks are and will remain the sole property of Merchant and agrees not to contest the ownership of such Merchant Marks, nor misappropriate the Merchant Marks for Marketing Shouts’s own use. Merchant reserves all rights to control the use of the Merchant Marks, and Marketing Shouts shall not change or modify the Merchant Marks in any manner without prior written authorisation from Merchant.
(b) Reservation of Rights. Except as expressly granted in this Agreement, Marketing Shouts shall have no other rights of any kind in the Merchant Marks or the Merchant Site. Under no circumstances will anything in this Agreement be construed as granting, by implication, estoppel or otherwise, a license to any of Merchant’s Intellectual Property or proprietary technology other than the use of the Merchant Marks in accordance with the terms of this Agreement. Marketing Shouts acknowledges that the Merchant Services are the sole property of Merchant, and this Agreement only grants Marketing Shouts a limited right to promote the Merchant Affiliate Program and to link to the Merchant Site under the terms and conditions of this Agreement. The Merchant Marks may not be used as a feature or design element of any other logo without prior written authorisation from the Merchant.
2.2 Marketing Shouts Ownership Rights. All content, writings, graphics, tables, sounds and other materials on the Marketing Shouts Site, the design, layout and general look and feel of the Marketing Shouts Site, and all Intellectual Property embodied therein or pertaining thereto, (other than Merchant supplied materials or Merchant Marks on the Marketing Shouts Site) shall remain the sole and exclusive property of Marketing Shouts or its licensors. Marketing Shouts will retain sole control and ownership over the look and feel, content, layout and design of the Marketing Shouts Site (website). Nothing under this Agreement shall be construed as granting to Merchant any license or right in or to any Intellectual Property or ownership of Marketing Shouts.
3 RIGHTS AND OBLIGATIONS OF THE PARTIES.
3.1 Marketing Shouts’s Rights and Obligations.
(a) Marketing Shouts shall meet the Service Level Guarantee.
(b) Marketing Shouts shall be solely and exclusively responsible for all operation, hosting, and maintenance on the Marketing Shouts Site (website).
(c) Marketing Shouts shall provide automated, real-time tracking; reporting; and analysis of Merchant Links and Events on every Merchant Transaction recorded for an Affiliate.
(d) Marketing Shouts shall provide monthly Commission processing and payment for all Affiliates with Funded Valid Events, defined herein, on behalf of the Merchant.
(e) Marketing Shouts shall provide or make available the following for Self-Managed account types:
(1) Campaign’s in accordance with section 5.5(c). Additional Standard Link Campaigns are available in accordance with sections 5.4(a)(1) and 5.5(c).
(2) Active Events.
(3) Access to select Marketing Shouts technologies as follows:
(i) Coupon Attribution including Naked Coupon technology,
(ii) Cross Platform Tracking technologies, and
(iii) First click and last click attribution models available as part of the Marketing Shouts solution.
(4) Marketing Shouts may make additional Merchant Affiliate Program management services available to Merchant in accordance with section 5.6 (b).
(f) Marketing Shouts shall provide or make available the following for Co-Managed account types:
(1) Standard Link Campaigns are available in accordance with section 5.5(c).
(2) Naked Link Campaigns are available in accordance with sections 5.5(c) and 5.5(e).
(3) Access to Marketing Shouts support (please allow up to 48 hours from making contact)
(4) Access to select Marketing Shouts features such as:
(i) Coupon Attribution including Naked Coupon technology,
(ii) Cross Platform Tracking technologies,
(5) Marketing Shouts may make additional Merchant Affiliate Program management services available to Merchants at our own discretion.
3.2 Merchant’s Rights and Obligations.
(a) Merchant shall be solely and exclusively responsible for all operation, hosting, and maintenance on the Merchant Site(s).
(b) Except as provided herein, Merchant may not modify Marketing Shouts Merchant Code without prior written consent from Marketing Shouts. Merchant agrees to use the Marketing Shouts Merchant Code required to call the Event(s) as provided by Marketing Shouts for any active Campaign. Merchant may not alter, copy, modify, take, sell, reuse, or divulge any Marketing Shouts Merchant Code, except as is necessary to partake in the Marketing Shouts Affiliate Program/Network. Requests for changes to Marketing Shouts Merchant Code should be sent to email@example.com Failure to meet this obligation may result in a make good in accordance with section 5.3(c)(1).
(c) Merchant agrees to pay Marketing Shouts all Commissions owed to Affiliates in accordance with section 5.7(b) and agrees to pay Marketing Shouts all fees related to the Merchant Account in accordance with section 5.7(a).
(d) Merchant agrees to review all Merchant Transactions in Marketing Shouts’s Merchant Manager by each Monthly Closeout and mark, as appropriate, Merchant Transactions as Valid Event(s), Invalid Event(s), or Pending Event(s).
(e) Merchant may change the Event State for Events from a Valid Event or Pending Event to an Invalid Event prior to each Monthly Closeout in circumstances of (i) product returns; (ii) duplicate entry or other clear error; (iii) non-bona fide Event; (iv) Affiliate’s failure to comply with Merchant Campaign Terms; and (v) non-receipt of payment from, or refund of payment to, the User by the Merchant for a Sale Event. Merchant shall not have the right to invalidate Merchant Transactions because of a Merchant’s determination that Commissions or fees were paid out through other promotional efforts.
(f) Merchant may submit Merchant material for each Event and Merchant Link through the Marketing Shouts Merchant Manager dashboard accessible once logged in at http://promote.Marketing Shouts.com/affiliates/login.php#login Marketing Shouts reserves the right, in its sole discretion and without liability, to reject, omit or exclude any Merchant material or Merchant Site for any reason at any time, with or without notice to the Merchant and regardless of whether such Merchant Site was previously accepted.
(h) Merchant agrees to remove all Expired Code after the Cookie Survival Window, defined herein.
(j) Merchant may make changes to active Campaigns, including but not limited to modifying Merchant Terms or expiring creative, at anytime. Server Side Cookies resulting from Affiliate Promotion prior to any change to an active Campaign unfavorable to Affiliates (e.g., decrease in Cookie Duration, decrease in Commission, etc.) shall survive and still be eligible for Commission after the change has taken effect (“Cookie Survival Window”) through the Cookie Duration. However, in no case shall such Server Side Cookies survive for more than ninety (90) days after any unfavorable change to an active Campaign.
(k) Marketing Shouts will invoice the invoice the Merchants each calendar month for the money owed to the affiliates through generating successful sales through your affiliate campaigns. Marketing Shouts will also add a 10% service charge on the total basket value of each successful affiliate sale for that Merchant.
(m) Merchant agrees to provide an Affiliate, which will be removed from a Campaign for any reason other than cause, at least seven (7) days written notice.
(n) Merchant agrees not to redirect End User from Merchant Site prior to Merchant Transaction being completed without compensating Affiliate for such a Merchant Transaction.
(p) Merchant is required to keep Account Detail accurate and current. Merchant is responsible for all Merchant Account usage and activity and for the loss, theft, and/or unauthorized disclosure of its password. Merchant shall provide Marketing Shouts written notice of any known or suspected unauthorized use or breach of the security of the Merchant Account.
(q) Merchant is obligated to independently assess and comply with all relevant tax and legal requirements. Merchant also shall be responsible for its sales tax collection and reporting obligations arising from Merchant Transactions occurring within the Term of this Agreement.
(r) Merchant expressly agrees not to charge back any amounts paid by credit card or PayPal and will instead use commercially reasonable efforts to resolve any disputes with Marketing Shouts.
4.1 The Merchant is not barred by this Agreement from participating in any other Affiliate Program offered by a Marketing Shouts competitor.
5.3 Transactional Fees. Transactional fees are recorded in the Marketing Shouts Transaction Table for each Merchant Transaction.
(a) Marketing Shouts Transactional Fee. The fee for each Affiliate Event in a Campaign (“Marketing Shouts Transactional Fee”) is a percentage of the Affiliate Commission the Merchant sets per Affiliate Event in the Merchant account.
The minimum amount is 10% of Commissions owed to Affiliates in accordance with section plus 10% of total basket sale to Marketing Shouts
(1) Make Good for Inoperable Code. For any active Campaign, Merchant will be subject to a make good for any Inoperable Code. These estimated Affiliate Commissions and Marketing Shouts Transactional Fees will be based on previous Affiliate performance and activity and will be calculated per diem until the issue is resolved or the Campaign(s) expire.
(2) Marketing Shouts also reserves the right to display an error message on Merchant’s website(s) for expired code.
5.4 Marketing Shouts Fee is computed and invoiced on the first day of a month (“Status Day”) after the grace period (and then adjusted downward daily based on fees earned (“Funded Fees”) by the Merchant) as the greater of zero GBP and the difference between the Monthly Minimum Marketing Shouts Fee minus any applicable discount to the Monthly Minimum Marketing Shouts Fee minus any Marketing Shouts Transactional Fees charged in a calendar month.
5.5 Setup and Maintenance Fees. The following setup fees will apply for applicable services needed by Merchant.
(a) Marketing Shouts Account Setup Fee of £199 (+VAT). Marketing Shouts waives the setup fee if the Merchant successfully adds the tracking code themselves.
(b) Optional Account Management Services. Merchant may purchase additional Merchant Affiliate Program management services (“Optional Account Management Services”) through the Marketing Shouts Merchant Manager dashboard at the then-current pricing and this Agreement shall apply to those purchased services unless otherwise agreed upon by both parties.
(c) Marketing Shouts typically pays Affiliates within thirty (30) business days after the end of an applicable month for all Funded Valid Events. All accounts will be settled in GBP (£), unless otherwise agreed upon by the Affiliate, Merchant, and Marketing Shouts. No payments will be made to affiliates for any amounts less than (i) £30 for PayPal. Any amounts less than these minimum amounts will carry over to the next month for possible payment if minimums are met.
(d) A Merchant’s right to access Merchant account with Marketing Shouts is subject to any limits established by Marketing Shouts.
(f) If Merchant fails to make a payment as set forth herein, Marketing Shouts may charge a late fee equal to 1% monthly (or the highest amount allowed by law if less than 1% monthly) of all past due charges, and all reasonable expenses (including attorneys’ fees) incurred by Marketing Shouts in collecting such charges.
(g) If Merchant files a payment dispute with its Credit Card Company or PayPal and the dispute is found in Marketing Shouts’s favor, Merchant will pay Marketing Shouts a fee (“Dispute Resolution Fee”) in the amount of two hundred GBP (£200).
6 REPRESENTATIONS, WARRANTIES AND COVENANTS.
6.1By Marketing Shouts. Marketing Shouts represents, warrants and covenants that: (i) it has sufficient rights to grant Merchant the rights and licenses set forth herein; (ii) to the best of its knowledge, the Marketing Shouts Services and the Marketing Shouts Site does not and will not violate any applicable law or regulation; (iii) the execution, delivery and performance of this Agreement by it does not conflict with any agreement to which it is a party or by which it may be bound; (iv) it has full legal authority to enter into this Agreement and to carry out the provisions hereof; (v) to the best of its knowledge, the Marketing Shouts Services and the Marketing Shouts Site do not infringe in any manner any copyright, patent, trademark, trade secret or other Intellectual Property right of any third party; (vi) to the best of its knowledge, the Marketing Shouts Services and the Marketing Shouts Site do not breach any duty toward or rights of any person or entity including, without limitation, rights of publicity or privacy, or has not otherwise resulted in any consumer fraud, product liability, tort, breach of contract, injury, damage or harm of any kind to any person or entity; (vii) the Marketing Shouts Services and the Marketing Shouts Site are not false or misleading; (viii) the Marketing Shouts Services and the Marketing Shouts Site do not produce, provide or are in any manner related to pornographic products or services (which Marketing Shouts shall have complete discretion to define); and (ix) the Marketing Shouts Services and the Marketing Shouts Site are neither defamatory, libelous, militant, hateful, slanderous or threatening.
6.2 By Merchant. Merchant represents, warrants and covenants that: (i) it has sufficient rights to grant Marketing Shouts the rights and licenses set forth herein; (ii) to the best of its knowledge, the Merchant Services and the Merchant Site does not and will not violate any applicable law or regulation; (iii) the execution, delivery and performance of this Agreement by it does not conflict with any agreement to which it is a party or by which it may be bound; (iv) it has full legal authority to enter into this Agreement and to carry out the provisions hereof; (v) to the best of its knowledge, the Merchant Services and the Merchant Site do not infringe in any manner any copyright, patent, trademark, trade secret or other Intellectual Property right of any third party; (vi) to the best of its knowledge, the Merchant Services and the Merchant Site do not breach any duty toward or rights of any person or entity including, without limitation, rights of publicity or privacy, or has not otherwise resulted in any consumer fraud, product liability, tort, breach of contract, injury, damage or harm of any kind to any person or entity; (vii) the Merchant Services and the Merchant Site are not false or misleading; (viii) the Merchant Services and the Merchant Site do not produce, provide or are in any manner related to pornographic products or services (which Marketing Shouts shall have complete discretion to define), or their subsidiaries or foundations funded by such companies whose function is to improve acceptance of such products by the public; and (ix) the Merchant Services and the Merchant Site are neither defamatory, libelous, militant, hateful, slanderous or threatening (which Marketing Shouts shall have complete discretion to define).
Merchant further represents that all information provided to Marketing Shouts will be accurate, complete and current. Merchant is responsible for keeping contact information up to date, including but not limited to financial information and contact emails.
7 DISCLAIMERS; LIMITATION OF LIABILITY.
7.1 Disclaimer of Warranties. EXCEPT AS SET FORTH IN SECTIONS 3 AND 6, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, AS TO THE MERCHANT SERVICE OR THE Marketing Shouts SERVICE INCLUDING, BUT NOT LIMITED TO, A WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR WARRANTY OF MERCHANTABILITY.
7.2 Limitation of Liability. EXCEPT FOR A BREACH OF THE CONFIDENTIALITY AND PRIVACY PROVISIONS OF SECTION 9 AND INDEMNIFICATION OBLIGATIONS ARISING UNDER SECTION 10, IN NO EVENT SHALL EITHER PARTY, OR ITS RESPECTIVE AFFILIATES, SUBSIDIARIES, PARENT COMPANIES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS OR EMPLOYEES, BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, POTENTIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF OPPORTUNITY, LOSS OF GOODWILL, LOST PROFITS OR LOST REVENUES) EVEN IF A PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8 FORCE MAJEURE.
8.1 A party shall not be considered to be in default in the performance of any obligations under this Agreement when a failure of performance is due to an uncontrollable force. The term “uncontrollable force,” as used in this Agreement, shall mean an unanticipated event which is not reasonably within the control of the affected party and which by exercise of reasonable due diligence, such affected party could not reasonably have been expected to avoid, overcome or obtain or cause to be obtained a commercially reasonable substitute therefor. Such causes may include, without limitation, the following: flood, earthquake, tornado, storm, fire, terrorist attack, explosion, public emergency, civil disobedience, labor dispute, labor or material shortage, sabotage, restraint by court order or public authority (whether valid or invalid), and action or non-action by or inability to obtain or keep the necessary authorisations or approvals from any governmental agency or authority; however, no party shall be relieved of its obligations hereunder, if its failure of performance is due to removable or remediable causes which such party fails to remove or remedy using commercially reasonable efforts within a reasonable time period. Either party rendered unable to fulfill any of its obligations under this Agreement by reason of an uncontrollable force shall give prompt notice of such fact to the other, followed by written confirmation of that notice, and shall exercise due diligence to remove such inability with all reasonable dispatch.
9.1 By Merchant. Merchant agrees to indemnify, defend and hold harmless Marketing Shouts and its officers, directors, employees, agents, successors and assigns from and against any and all losses, liabilities, damages, penalties and claims and all related costs and expenses (including reasonable attorneys’ fees) related to claims made by third parties against Marketing Shouts: (i) alleging that Merchant’s Marks or other Intellectual Property infringe the patents, copyrights, trademarks or service marks or other Intellectual Property rights of such third parties; (ii) arising out of or relating to the Merchant Service or the Merchant Marks; or (iii) due to a breach by Merchant of its warranties, representations, obligations or covenants or otherwise breaches this Agreement.
9.2 By Marketing Shouts. Marketing Shouts agrees to indemnify, defend and hold harmless Merchant and its officers, directors, employees, agents, successors and assigns from and against any and all losses, liabilities, damages, penalties and claims and all related costs and expenses (including reasonable attorneys’ fees) related to claims made by third parties against Merchant: (i) alleging that Marketing Shouts’s Marks or other Intellectual Property infringe the patents, copyrights, trademarks or service marks or other Intellectual Property rights of such third parties; (ii) arising out of or related to the Marketing Shouts Service or Marketing Shouts Marks; or (iii) due to a breach by Marketing Shouts of its warranties, representations, obligations or covenants or otherwise breaches this Agreement.
9.3 Procedures. The Indemnified Party shall (i) promptly notify the Indemnifying Party in writing of such suit, claim, or proceeding; (ii) give the Indemnifying Party, at its expense, reasonable information, assistance and cooperation required to defend such suit, claim, or proceeding; and (iii) allow the Indemnifying Party to control the defense of any such action and all negotiations for its settlement or compromise. The Indemnified Party may be represented in the defense of any such claim, at the Indemnified Party’s expense, by counsel of the Indemnified Party’s selection. The Indemnifying Party shall have no liability for settlements or costs incurred without its consent. The Indemnifying Party shall not enter into any settlement that imposes liability or restrictions on the Indemnified Party without the Indemnified Party’s prior written consent, such consent not to be unreasonably withheld or delayed.
10 OWNERSHIP OF END USER DATA; CONFIDENTIALITY, AFFILIATE RELATIONSHIP.
10.1 Confidentiality. Marketing Shouts and Merchant agree that any and all information identified by the other as “Confidential” and/or “Proprietary”, or which, under all of the circumstances, ought reasonably to be treated as Confidential and/or Proprietary, will not be directly or indirectly disclosed to any third person without the express consent of the other party for a period of three (3) years following termination of this Agreement and that neither party will make use of Confidential Information except under the terms of this Agreement. These confidentiality obligations shall not apply to any information which: (i) is or subsequently becomes available to the general public other than through a breach by the receiving party; (ii) is already known to the receiving party before disclosure by the disclosing party; (iii) is developed through the independent efforts of the receiving party; (iv) the receiving party rightfully receives from a third party without restriction as to confidentiality or use; or (v) is requested pursuant to a subpoena; provided, that the party responding to such subpoena gives the other party reasonable notice and opportunity to intervene to quash such subpoena.
10.2 Privacy of Consumer Information. Notwithstanding anything in this Agreement to the contrary, if it is necessary for Merchant to disclose any End User Data to Marketing Shouts for any reason, Marketing Shouts agrees that at no time shall Marketing Shouts use or disclose any such End User Data that Marketing Shouts may obtain in connection with this Agreement, except as required by law; provided that nothing herein shall require Merchant to disclose End User Data to Marketing Shouts.
10.3 Affiliate Relationship. During the Term of this Agreement and for six (6) months thereafter, Merchant shall not knowingly solicit any Affiliate that is obtained through the Marketing Shouts Services, nor shall Merchant transfer any Affiliate obtained through the Marketing Shouts Services to any third party provider or to any in-house program substantially similar to the Marketing Shouts Services. Additionally, Merchant shall not encourage, including paying an Affiliate a higher Commission, any such Affiliate to so transfer. In the event Merchant does violate this provision, Merchant shall pay Marketing Shouts what Marketing Shouts would have otherwise earned had such a violation not occurred. Except as expressly set forth in this paragraph, nothing herein shall be deemed to restrict Merchant from entering into independent strategic partnerships or other agreements with Affiliates, or to prohibit Merchant from advertising, merchandising or promoting its products or services.
11 TERM OF AGREEMENT AND TERMINATION.
If Merchant is dissatisfied with Merchant Account in the Marketing Shouts Affiliate Program or with any of the terms and conditions contained herein, Merchant’s sole and exclusive remedy is to terminate Merchant account. Merchant may cancel participation in the Marketing Shouts Affiliate Program at any time after meeting Termination Requirements, in accordance with section 11.3.2, by sending notice in accordance with section 12.7.
11.2 Termination. This Agreement will terminate in the event of any of the following:
(a) Thirty (30) days after notice of a material breach is sent by the non-breaching party in accordance with section 12.7, provided the breaching party fails to cure such breach within thirty (30) days of such notice; and
(c) After meeting applicable Termination Requirements, in accordance with section 11.3.
11.3 Termination Requirements.
11.3.1 Marketing Shouts may terminate this Agreement once notice of termination has been sent to Merchant in accordance with section 12.7.
11.3.2 Merchant may terminate this Agreement only after satisfying all of the following requirements:
(a) Once Merchant has met Merchant obligations in accordance with section 3.2(b) for any active Campaign and expired all active Campaigns with seven (7) days notice to Affiliates approved for such Campaigns; and
(b) Once Merchant has removed all Marketing Shouts Merchant Code required to call the Event(s) as provided by Marketing Shouts for any Campaign that has ended which in no case shall occur prior to the expiration of the Cookie Survival Window defined herein; and
(c) Once Merchant has paid all monies owed in accordance with section 5.7; and
(d) Once notice of termination is received by Marketing Shouts in accordance with section 12.7.
11.4 Effect of Termination. Upon termination of this Agreement, all licenses granted by Merchant hereunder shall automatically terminate. Merchant shall review all Merchant Transactions in Marketing Shouts’s Merchant Manager by the Monthly Closeout following Termination and mark, as appropriate, Merchant Transactions as valid or invalid. Any remaining amount in the Merchant’s Prepay account shall be returned to Merchant after the Monthly Closeout following such termination within 30 days after the applicable Monthly Closeout.
11.5 Survival. Sections 5 (to the extent the payment obligations accrue prior to termination), 7, 9, 10, 11.4 and 12 shall survive any expiration or termination of this Agreement.
11.6 Suspension. Marketing Shouts reserves the right, at its sole discretion to suspend the Merchant if it suspects a material breach of section 3.2. If Marketing Shouts takes action to suspend, Marketing Shouts may do so immediately, but Marketing Shouts is not relieved of its obligation to notify the Merchant per section 11.2(a).
12.1 Choice of Law. The Parties agree that this Agreement shall be governed by and interpreted in accordance with the laws within Britain, UK (including by not limited to the Uniform Electronic Transactions Act as enacted in Britain, UK), without regard to conflict of laws provisions thereof. Furthermore, the parties agree that any dispute (including litigation) that arises between the parties shall have its venue in a British, UK court of law.
12.2 Assignment. Merchant may not assign all or any portion of this Agreement without the prior written consent of Marketing Shouts, which consent may be withheld at Marketing Shouts’s sole discretion.
12.3 Relationship of the Parties. No partnership, joint venture, employment, agency, franchise, or other form of agreement or relationship is intended by this Agreement. The parties shall be independent contractors for all purposes in connection with this Agreement.
12.4 Entire Agreement. The parties agree that this Agreement constitutes the entire agreement between the parties as of the date hereof with respect to the subject matter hereof and supersedes all prior and contemporaneous communications, whether oral or written. The parties agree that this Agreement may be modified or amended from time to time hereafter by Marketing Shouts as it deems necessary and Merchant agrees (in consideration for Marketing Shouts agreeing to continue doing business with Merchant) to be bound by such amendments, however, no such modification or amendment shall act to increase any financial obligation which Merchant may otherwise have to Marketing Shouts pursuant to this Agreement.
12.5 Press Releases. Neither party shall issue any press release or announcement relating to the relationship contemplated by this Agreement without the prior written consent of the other party.
12.6 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument.
12.7 Notices. All notices, requests, consents, and other communications under this Agreement from Merchant shall be in writing and shall be deemed delivered (i) two business days after being sent by registered or certified mail, return receipt requested, postage prepaid; (ii) one business day after being sent via a reputable nationwide overnight courier service guaranteeing next business day delivery; or (iii) immediately if via electronic mail if the form available in Marketing Shouts’s Merchant Manager is used. If from Marketing Shouts to Merchant, immediately upon electronic mail to the primary contact email address is deemed an acceptable means of notification. In each case to the intended recipient as set forth below:
If to Merchant by electronic mail to the primary contact email address firstname.lastname@example.org
12.8 Section Headings. Section headings are for descriptive purposes only and shall not be used to interpret the meaning of this Agreement.
12.9 Attorneys’ Fees. If either party fails to pay any amounts due under this Agreement or otherwise breaches this Agreement and the non-breaching party retains an attorney to collect such amounts or remedy such breach, then the breaching party shall be obligated to pay any amounts due herein including said non-breaching party’s reasonable attorneys’ fees incurred in collecting such amounts and court costs.
12.10 Non-Waiver. No delay or omission of either party in exercising any right accruing upon any default of the other party shall impair any such right or be construed to be a waiver thereof, and every such right may be exercised at any time during the continuance of such default. A waiver by either of the parties of a breach or a default under any of the terms and conditions of this Agreement by the other party shall not be construed to be a waiver thereof. A waiver by either of the parties of a breach or a default under any of the terms and conditions of this Agreement by the other party shall not be construed to be a waiver of any subsequent breach or default of any other term or condition of this Agreement.
12.12 Tax Status and Obligations. Marketing Shouts is not obligated to provide Merchant with tax and/or legal advice and nothing communicated by Marketing Shouts to Merchant shall be construed as such. Merchant is obligated to independently assess and comply with all relevant tax and legal requirements, and is responsible for its own sales tax collection and reporting obligations arising from sales through the Affiliate Program. Any Affiliate information provided to Merchant, including Affiliate address, shall be provided accurately; however, Merchant, not Marketing Shouts, is responsible for verifying the accuracy of information provided to Marketing Shouts by an Affiliate.