By accessing and using the Conduit Ltd., d/b/a “Como” (“Como“, “us” or “we“) technology and website at www.como.com, you indicate that you have read and agreed to the terms and conditions of this Como Affiliate Agreement, including those attached hereto as Appendix A (collectively, the “Agreement”).
BY CLICKING THE “I Accept” (OR SIMILAR LANGUAGE) BUTTON, YOU ARE CONSENTING TO BE BOUND BY THIS AGREEMENT AND AGREE THAT COMO WILL TREAT YOU AS AN AFFILIATE FROM THAT POINT ONWARDS. IF YOU DO NOT ACCEPT THIS AGREEMENT IN ITS ENTIRETY, YOU MAY NOT JOIN THE COMO PROGRAM. IF YOU CONSENT TO THIS AGREEMENT ON BEHALF OF A BUSINESS, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT BUSINESS TO THIS AGREEMENT AND YOUR CONSENT TO THIS AGREEMENT WILL BE TREATED AS THE CONSENT OF THE BUSINESS. IN THAT EVENT, “AFFILIATE”, “YOU” AND “YOUR” WILL REFER AND APPLY TO THAT BUSINESS. YOU ALSO CONSENT TO THE USE OF: (A) ELECTRONIC MEANS TO COMPLETE THIS AGREEMENT AND TO PROVIDE YOU WITH ANY NOTICES GIVEN PURSUANT TO THIS AGREEMENT; AND (B) ELECTRONIC RECORDS TO STORE INFORMATION RELATED TO THIS AGREEMENT AND YOUR USE OF THE COMO TECHNOLOGY. COMO RECOMMENDS THAT YOU PRINT OUT OR SAVE A LOCAL COPY OF THE AGREEMENT FOR YOUR RECORDS.
For any questions with respect to your account, please contact us at: firstname.lastname@example.org.
APPENDIX A – GENERAL TERMS AND CONDITIONS
The following capitalized terms shall have the following respective definitions (unless the context requires otherwise):
1.1. “Approved Channel(s)” means Affiliate’s distribution channels used by it to advertise and promote the Como Platform, including by advertisements (text, image or video).
1.2. “Customer(s)” means any prospective small or medium business that Affiliate offered, by displaying and ad, banner or link, to register and create Mobile App(s) via the Como Platform.
1.3. “Como Platform” means Como Technology and/or the TPC.
1.4. “Como Technology” means Como’s proprietary Mobile Apps generating platform and any other products and services provided by Como therein or in connection thereto for use and/or display on the internet, mobile phones, tablets and/or any other current or future platform or media (whether owned by Como or licensed by it) including, but not limited to, software and tools provided by Como to publishers which enable the implementation and administration of the Mobile App(s) in connection with the Como Technology, but not including TPC.
1.5. “Intellectual Property Right(s)” means: (i) all inventions, whether patentable or not, all improvements thereto and derivatives thereof, and all patents and patent applications; (ii) all registered and unregistered trademarks, service marks, trade names, trade dress, logos and registrations and applications for registration thereof; (iii) all copyrights in copyrightable works, all other rights of authorship, including without limitation moral rights, and all applications and registrations in connection therewith; (iv) all trade secrets and confidential business and technical information (including, but not limited to, research and development, know-how, proprietary knowledge, financial and marketing information, business plans, formulas, technology, engineering, production and other designs, drawings, engineering notebooks, industrial models, software and specifications); (v) all rights in databases and data compilations, whether or not copyrightable; and (vi) all copies and tangible embodiments of any or all of the foregoing (in whatever form, including electronic media).
1.6. “Mobile App(s)” means any mobile application and/or mobile website generated or administered by publishers via its use of the Como Technology in compliance with the terms and conditions of this Agreement, for use on mobile phone device, tablet, television and/or any other current or future platform or media.
1.7. “Third Party Content” or “TPC” means any third party content and technology that is offered, distributed or promoted in or from the Como Technology.
1.8. “Transaction(s)” means a binding and enforceable agreement pertaining to the creation and distribution of a Mobile App(s) which was (i) pre-paid by Customer via the Como Platform within 30 days as of the day Customer has registered to the Como Platform; (ii) as a direct result of Affiliate distribution efforts as indicated via the Link; (iii) directed only via Approved Affiliate Channels and (iv) calculated solely by Como’s reporting system.
2. Scope of Agreement
2.1. Como hereby engages Affiliate’s services, on a non-exclusive basis, during the term hereof, for the purpose of assisting Como promote the Como Platform via Approved Affiliate Channels only, and refer them to the Como Platform in order to facilitate a Transaction between Customer and Como in accordance with the terms and conditions set forth in this Agreement (the “Services“), and Affiliate hereby agrees to provide Como with the Services.
2.2. As part of the Services, Como will provide Affiliate a unique hypertext link directing potential customers to the Como Platform (the “Link”) which Affiliate will integrate in its blog, on an advertisement of the Como Platform provided by Como (text, banner or image) (the “Como Ad(s)”) or in any other way, subject to the terms of this Agreement (the “Affiliate’s Promotion”). Affiliate will place the Affiliate’s Promotion only in the Approved Affiliate Channels. The Link will enable Como to identify each Customer that clicks of the Affiliate’s Promotion and registered to the Como Platform and eventually enter into a Transaction. Como may provide Affiliate advertising materials such as button links, text links, and banner advertisements, trademarks, logos, and copyrighted material, all of which may be replaced and/or amended from time to time by Como, in Como’s sole discretion (“Como Materials“). Affiliate alone is responsible for the proper formatting of the hypertext link in Affiliate’s Promotion and all costs and expenses of the performance of its obligations under this Agreement.
2.3. The Services shall include the following:
2.3.1. accurately representing the functionalities and features of the Como Platform;
2.3.2. reporting promptly to Como all suspected and actual problems with the Como Platform or the provision of the Services;
2.4. The decision whether to enter into a Transaction or not, is subject to Como’s sole and absolute discretion and nothing herein contained shall obligate Como to enter into any transaction proposed by Affiliate, nor will the Affiliate have any authority to bind Como in any manner. Como has the right, in its sole and absolute discretion, to (a) negotiate any Transaction, and to change the terms and conditions thereof, without prior notice to Affiliate, (b) refuse or reject any Transaction, regardless of the terms proposed, or (c) terminate negotiations with any Customer at any time with respect to any Transaction.
2.5. Como shall establish and have exclusive control over all the terms and conditions of the Transaction. All terms concerning the sale of products and services on Como Platform are entirely within Como’s sole discretion and Como reserves the right to change the pricing structure, terminate any special offers, discontinue products or services, or change the terms under which products or services are offered at any time on its platform, without any advance notice to Affiliate.
2.6. Nothing in this Agreement shall be construed as preventing or otherwise limiting Como from offering or distributing its products by itself to prospects that were Customers under this Agreement or from entering into similar agreements with other affiliates or any third parties and receiving similar or different services, whether directly or otherwise, through channels, distributors, resellers or other third parties.
2.7. Nothing in this Agreement shall grant any right to the Affiliate with respect to the Customers including revenues received from the Customers.
During the term of this Agreement, Como hereby grants to Affiliate a limited, non-exclusive, non-assignable, non-transferable, and non-sub-licensable right and license to display the Como Materials and the Como Ads, including using the Como logo and trademark only on Affiliate’s Promotion and only via the Approved Affiliate Channels, for the sole purpose of performing its obligations per this Agreement. Affiliate may not modify, and/or amend (except for size changes) the Como Materials and/or the Como Ads in any way.
4. Affiliate’s Representations and Warranties.
4.1. Affiliate represents and warrants to Como that: (a) Affiliate has the complete power and authority to enter into this Agreement; (b) there is no legal or other impediment preventing Affiliate from entering into this Agreement and performing its obligations and undertakings hereunder; (c) it shall comply in full with all applicable laws, regulations and ordinances while performing the Services; (d) it shall not bind Como to any agreement or obligation nor incur any liability on behalf of Como, except such as are specifically authorized by Como in advance and in writing; (e) it shall not make any promises or representations or give any warranties or guarantees on behalf of Como; (f) it shall provide the Services in a competent and professional manner in accordance with the highest industry standards; (g) it shall refrain from any deceptive, misleading, false or unethical practices; (h) Affiliate shall not (i) broaden, limit, otherwise modify or alter, accept or reject the terms and conditions of any proposed Transaction in Como’s name or make any promises in relation thereto, or otherwise modify or alter the Como Materials and/or Como Ad without Como’s prior written approval, or (ii), make representations or warranties/guarantees regarding the Transaction, the Mobile Apps or any other Como’s products and/or services, without Como’s prior written approval.
4.2. During the term of this Agreement, Affiliate will (i) not use any distribution channels other than Approved Affiliate Channels to distribute Affiliate’s Promotion, the Como Ads and/or Como Materials; (ii) use as Approved Affiliate Channels only websites or other online properties which does not and will not contain any materials that are infringing or illegal, immoral, repulsive, defamatory, derogatory, harassing, harmful, threatening, obscene, vulgar, pornographic, racial or ethnic objectionable materials, depicts sexual situations, promotes discrimination on the basis of race, sex, sexual preference, national origin, ethnicity, nationality, disability, religious preference; are and will not be operated for an illegal purpose or in an illegal manner; (iii) not engage in SPAM, fraud or unsolicited commercial email campaigns; (iv) not use any Affiliate’s Promotion which contain any materials that are infringing or illegal, immoral, repulsive, defamatory, derogatory, harassing, harmful, threatening, obscene, vulgar, pornographic, racial or ethnic objectionable materials, depicts sexual situations, promotes discrimination on the basis of race, sex, sexual preference, national origin, ethnicity, nationality, disability, religious preference or may reflect badly of Como reputation in any way.
4.3. Affiliate acknowledges and agrees that Como may update the Como Ads from time to time, in its sole discretion, including the prices of its subscription plans and will ensure that the Como Ads used by it will be current and updated in accordance with Como’s request.
5. Prohibited Activities
The following activities are prohibited under this Agreement. Engaging in these activities may result in the termination of the Agreement:
5.1. Display URL: You must not use the Como domain www.como.com as the display URL in any Como Ad.
5.2. Impersonating Como: You must not run ads impersonating Como, or implying the ad is served by Como. Ads should clearly be represented as links to an affiliate offer.
5.3. Como Protected Keywords: You are prohibited from bidding on keywords containing Como trademarked terms or confusingly similar terms, including but not limited to Como, Como.com, www. Como.com, Comos, whether standing alone or as part of a longer keyword (e.g., Como Free Website, Como Site Builder, Como Cover Pages, Como coupons). You must add all of the following terms as broad match negative keywords: Como, Como.com, Como.com coupons.
5.4. Out-positioning: You must not knowingly serve ads that appear in a higher position than the Como -managed ads. If ads placed by You outrank Como -managed, You must lower the bid immediately upon Como’ request.
5.5. Misleading Advertising: You must not use any misleading or deceptive claims in advertising copy. You are solely responsible for following all federal, state and local laws, regulations and rules regarding advertising claims.
5.6. Spyware and Phishing: You must not use spyware, bots or other technologies to (1) redirect automatically a consumer’s browser to a site owned or operated by You without the consumer’s knowledge or (2) fraudulently make it appear as though links to Como site are coming from sites owned or operated by You when in fact they are coming from other sites not owned or operated by You.
5.7. You must not use sites owned or operated by You for phishing schemes designed to fraudulently collect personal information from consumers. In addition, You must not knowingly or negligently allow sites owned or operated by You to be used by others for such phishing schemes.
5.8. Online Video Content: When creating videos or other online content that publish Link on video sharing sites, Como’s image needs to be kept in mind. These sites cannot be associated with any vulgar, racist, sexual or any other content that Como deems offensive. You must remove all videos deemed offensive by Como within 24 hours of being notified by Como.
5.9. Public Relations Policy & Press Releases: While Como understand the importance of promoting Your site and affiliation with the company to drive customers to the Como site, we expressly prohibit any affiliate from mentioning Como in press releases or promotional written materials without the expressed written consent of Como’s public relations department.
5.10. Social Media/Social Network Sites: You are prohibited from falsely introducing yourself as Como representative including by using the Como trademark or misspellings of the name or other confusingly similar terms, including but not limited to Como, como.com, or www.como.com, on any social media or social networking tools or sites as a means to publicize Como offers, deals, coupons or promotions of any kind. You are also prohibited from creating groups or specific web pages in social communities to publicize Como offers.
6. Proprietary Rights
6.1. Except as expressly granted in this Agreement, as between Affiliate and Como, Como retains all right, title and interest in and to the Como Technology and the Como Materials and Como Ads and any derivatives thereof, including any Intellectual Property Rights therein (collectively: “Como IP”).
6.2. As between Como and Affiliate, all use of the Como IP shall inure to the benefit of Como and Affiliate shall not: (a) contest, or assist others to contest, Como’s rights or interests in and to the Como IP or the validity of Como’s rights in and to the Como IP and all applications, registrations or other legally recognized interests therein, or (b) seek to register, record, obtain or attempt to pursue any Intellectual Property Rights or other proprietary rights or protections in or to said Como IP. All rights in the Como IP which are not expressly granted herein are reserved by Como. Affiliate will retain and reproduce any copyright, disclaimers and other proprietary notices in full and as they appear in or on the Como Platform and Mobile App.
6.3. Affiliate shall not assert any Intellectual Property Rights with respect to the Como Platform or any element, derivation, adaptation, variation or name thereof.
6.4. Affiliate shall not remove, obscure or alter any notices of Intellectual Property Rights or disclaimers appearing in or on any Content provided by Como, whether available via the Como Materials, a Mobile App or otherwise.
6.5. Except as expressly granted in this Agreement, as between Como and Affiliate, Affiliate retains all right, title and interest in and to the Approved Affiliate Channels, and any derivatives thereof, including any Intellectual Property Rights therein.
7. Relationship of the Parties
7.1. Affiliate’s relationship with Como shall be that of an independent contractor. Affiliate shall not have, and shall not represent that it has, any right or authority to bind Como, or to assume or create any obligation or responsibility, express or implied, on behalf of Como. This Agreement shall not be deemed to create a partnership, joint venture, employer-employee or other relationship between the parties.
7.2. Affiliate shall be responsible for its own acts and omissions and the acts and omissions of its employees, consultants and anyone on its behalf, and shall, at its own expense, maintain full insurance and compliance under any workers’ compensation, social benefits and all other applicable legislation and regulation under the laws of any jurisdiction where this Agreement is performed. Affiliate shall ensure that its authorized consultants and employees are contractually bound by, and shall monitor and report to Como any non-compliance with, the terms, obligations and restrictions of this Agreement, including without limitation the duties of confidentiality, non-competition, fiduciary and loyalty described herein.
8. Term and Termination
8.1. This Agreement shall commence on the date Affiliate agrees to the terms and conditions of this Agreement as set forth above and shall continue in force thereafter, unless terminated or expired as provided herein (the “Term“).
8.2. Either party may terminate this Agreement at any time by written notice to the other party for any reason and without liability for such termination.
8.3. This Agreement may be terminated in accordance with any of the following provisions:
8.3.1. Either party may terminate this Agreement, for any reason and without liability, upon providing the other party with seven (7) days’ prior written notice.
8.3.2. Como may terminate this Agreement, immediately upon written notice to Affiliate, if: (a) Affiliate breached any of the terms of this Agreement, including, but not limited to, acting in conflict of interest or using Approved Affiliate Channels in breach of this Agreement; (b) Affiliate committed fraud, or any acts of dishonesty towards Como; (c) Affiliate willfully failed to perform or willfully failed to perform competently any of its obligations hereunder; or (d) Affiliate breached any of its representations and warranties or any of its obligations set forth in this Agreement and failed to cure such breach within two (2) days from receipt of a written notice thereof.
8.4. Upon termination of this Agreement, the license granted hereunder will immediately terminate and Affiliate will immediately cease using the Como Materials and Como Ads and will delete it from Approved Affiliate Channels, from its computers and from its servers.
Affiliate hereby indemnifies and holds Como, and all Como’s shareholders, officers, directors, employees, contractors, affiliates, agents, successors and assigns harmless from and against any and all claims, liabilities, damages, actions, causes of action, suits, threats, demands, settlements, including all costs and attorney fees related thereto brought by a third party (“Claims”), that may incur and which are based in whole or in part upon Affiliate’s breach of any term, covenants, condition, representation or warranty contained in this Agreement, Affiliate’s misrepresentation, fraud or negligence with respect to the provision of the Services.
10. Limitation of Liability
COMO HEREBY DISCLAIMS ANY AND ALL WARRANTIES AND LIABILITY RELATED TO ANY DOWNTIME OR FAILURE FOR USERS TO BE ABLE TO ACCESS ITS WEBSITE OR TO ACCESS ITS WEBSITE USING THE LINK FROM AFFILIATE CHANNELS. FURTHERMORE, COMO SHALL NOT BE RESPONSIBLE FOR AND HEREBY DISCLAIMS ANY AND ALL WARRANTIES RELATED TO COMO PLATFORM, AFFILIATE’S PROMOTION OF COMO PLATFORM, AFFILIATE’S ABILITY TO MAKE ANY COMMISSIONS OR OTHERWISE PROFIT THROUGH THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF FITNESS FOR ANY PARTICULAR PURPOSE OR MERCHANTIBILITY, NON-INFRINGEMENT, OR ANY CLAIM MADE BASED UPON COMO’S COURSE OF DEALING OR USAGE OF TRADE. COMO DOES NOT REPRESENT OR WARRANT THAT ITS WEBSITE OR ANY APPLICATION, INCLUDING BUT NOT LIMITED TO LINK TRACKING FEATURES, WILL BE ERROR FREE OR THAT THEY WILL FUNCTION WITHOUT INTERRUPTION.COMO SHALL NOT BE RESPONSIBLE FOR ANY DIRECT OR INDIRECT DAMAGES OR LIABILITIES OF ANY NATURE, INCLUDING BUT NOT LIMITED TO INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR SPECIAL DAMAGES, LOSS PROFITS, LOST BUSINESS OPPORTUNITY OR ANY OTHER DAMAGES, REGARDLESS OF WHETHER COMO WAS OR HAD BEEN ADVISED OF THE POSSIBILITY OF THE SAME AND TOOK NO ACTION TO PREVENT THE SAME. WITHOUT LIMITING THE FORGOING, COMO’S TOTAL LIABILITY FOR ANY DAMAGES ARISING HEREUNDER SHALL NEVER EXCEED THE TOTAL COMMISSIONS PAID AND PAYABLE BY COMO PURSUANT TO THE TERMS HEREOF.
11.1. This Agreement including any Exhibits attached hereto, constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes any prior agreements or understandings, whether written or oral, with respect to the subject matter hereof. No supplement, modification, promise, addition or amendment of this Agreement shall be effective or binding unless executed in writing by both parties.
11.2. No waiver of any of the provisions of this Agreement shall be deemed to constitute a waiver of any other provision, whether or not similar, nor shall any one waiver constitute a continuing waiver.
11.3. If any provision in this Agreement should be held illegal or unenforceable by a court of competent jurisdiction, such illegal or unenforceable provision shall be modified to the extent necessary to render it enforceable without losing its intent, or severed from this Agreement if no such modification is possible, and other provisions of this Agreement shall remain in full force and effect.
11.4. The paragraph headings contained in this Agreement are for reference only. They shall not constitute or be considered substantive parts of this Agreement.
11.5. The provisions of Sections 5, 6, 8, 9 and this Section 10 shall remain in full force and effect following the termination or expiration of this Agreement.
11.6. The laws of the State of Israel shall govern this Agreement, without regard to or application of the conflicts of law rules or principles. All disputes, differences or controversies arising out of or in connection with this Agreement, its interpretation, performance, or termination, which may arise between the parties arising out of, or related to, this Agreement, shall be amicably settled between the Parties. In case of failure of amicable settlement between the Parties, the courts of Tel-Aviv-Jaffa shall have exclusive jurisdiction over all disputes arising hereunder unless otherwise mutually agreed by the Parties in writing. In the event of a dispute between the Parties arising out of or relating to this Agreement, the prevailing party shall be entitled to recover all of its reasonable attorneys’ fees and costs in each and every such action or proceeding, including any and all appeals or petitions therefrom.
11.7. Neither this Agreement nor any right or interest therein may be assigned by Affiliate to any other person or corporation without the express written consent of Como. Como may assign or transfer this Agreement or any rights or obligations hereunder without Affiliate’s consent.
11.8. This Agreement shall be binding upon, and shall inure to the benefit of, each of the parties and their respective heirs, legal distributors, predecessors, successors, assignees, employees, partners, lawyers and all other persons and entities now, heretofore or hereafter having interest whatsoever with respect to the subject matter hereof.
11.9. All notices and other communications required or permitted under this Agreement shall be in writing, and shall be delivered, by hand, facsimile, email or other electronic means, by registered, express or certified mail (postage prepaid) or by overnight courier service), at the addresses set forth herein or at such other address as each party shall have furnished to the other in writing. Any notice or other communications so provided shall be deemed to be given in the case of hand delivery, facsimile or email upon confirmed receipt, in the case of registered, express or certified mail within three (3) business days of being sent (one (1) business days in the case of overnight courier service).
11.10. The parties agree and acknowledge that if any portion of this Agreement is declared invalid or unenforceable, such determination shall not affect the balance of this Agreement, but this Agreement shall remain in full force and affect, and such invalid portion shall be deemed severable.