Partner Terms

General Terms and Conditions for Partners

By clicking the “I Accept” button, or by taking any similar action indicating agreement with these General Terms and Conditions for Partners (“Partner Terms“), you are entering into a binding agreement with Omtrackr.com (“Supplier“). This agreement applies either to you as an individual or, if you are acting on behalf of an organization, to that organization (in either case, the “Partner“).

By clicking “I Accept” or taking a similar action, you (A) acknowledge that you have read and understand the Partner Terms, (B) represent and warrant that you have the authority to agree to the Partner Terms on behalf of the Partner, and (C) accept the Partner Terms and agree to be legally bound by them. If you do not agree to the Partner Terms, do not click “I Accept” or take any similar action, and you will not be able to access or use the products.

Both Omtrackr.com and the Partner may be referred to individually as a “Party” and collectively as the “Parties.”

1. Definitions

Capitalized terms not otherwise defined in these Partner Terms have the meanings given below:

(a) Advertiser: A third-party advertiser of goods or services that Partner works with to promote an Offer.

(b) Authorized User: Individuals authorized by the Partner to access and use the Cloud Services, including any third parties authorized under Section 2(a)(ii), subject to the Partner’s limitations and obligations under the Partner Terms. Individuals or classes of individuals who are ineligible under the Partner Terms cannot be Authorized Users.

(c) Cloud Services: Any on-demand, subscription-based solution or technology-enabled service hosted, supported, and operated by the Supplier, including any related documentation, embedded third-party content, and Supplier materials necessary for Partner’s use of the Cloud Services in accordance with the Partner Terms. Cloud Services do not include Third-Party Content.

(d) Commission: The agreed-upon amount to be paid to the Partner by the Advertiser as a result of a Conversion.

(e) Conversion: When a Partner achieves the desired outcome for an Advertiser, as specified in an Offer, and measured and tracked by the Cloud Services.

(f) Corporate Affiliate: Any entity that (i) directly or indirectly owns, is owned by, or is under common ownership or control with a Party, and (ii) is under common management with a Party.

(g) Documentation: Technical and functional documentation provided by the Supplier in connection with its products, including user manuals, operation instructions, installation guides, release notes, and online help files. This documentation is subject to revisions by the Supplier.

(h) “IP Rights” refer to all existing and future rights, whether registered or unregistered, related to patents, copyrights, trademarks, trade secrets, database protection, design rights, or other intellectual property laws worldwide, including any similar or equivalent protections.

(i) “Marks” encompass a Party’s logos, tradenames, trademarks, service marks, work marks, and trade dress, whether registered or not.

(j) “Offer” is an agreement between Partner and Advertiser, where the Advertiser compensates the Partner for achieving specific advertising performance results for promoting certain applications, products, services, networks, and/or advertisements.

(k) “Partner Data” includes all information, data, and content provided by the Partner or its Authorized Users to Supplier or its Corporate Affiliates or Personnel through the use of Cloud Services. It also includes all information, data, and content specifically created for the Partner as a result of processing through the Cloud Services, excluding any Supplier Materials.

(l) “Partner Interface” is the portal that provides Partner with limited access to certain Cloud Services, enabling connections with Advertisers to facilitate and manage the Partner’s promotion of Advertisers’ Offers. The Partner Interface is a type of Cloud Service.

(m) “Personnel” refers to any employee, director, officer, or subcontractor of a Party or that Party’s Corporate Affiliate.

(n) “Products” collectively refer to the Cloud Services and the Support Services.

(o) “Supplier Materials” include all other information, data, documents, materials, works, content, methods, processes, technical or functional descriptions, database structures, requirements, plans, reports, devices, hardware, software, websites, technologies, and inventions developed, provided, or used by Supplier or its Personnel in connection with the Products. Supplier Materials encompass Usage Data but exclude Partner Data or Third-Party Content.

(p) “Support Services” are the standard and premium customer support and maintenance services provided by Supplier to Partner in support of its Products, as per the Partner Terms.

(q) “Territory” refers to the geographic region where the Partner is allowed to use the Products, which includes any country not excluded by Section 15(a) of these Partner Terms. Supplier reserves the right to designate any country as ineligible for use.

(r) “Usage Data” comprises data generated by Supplier or its Products based on information derived from Partner’s use of the Products. This includes measurement data related to the Partner’s relationship with its Advertisers, end user profiles, visits, sessions, impressions, clickthrough or clickstream data, and any derived statistical or analytical information. Such data will be deidentified to remove any attributes that could identify a natural person.

2. Usage Rights; License

(a) Rights Granted & Permitted Use

(i) Cloud Services

Omtrackr.com grants Partner a limited, non-exclusive, non-transferable (except in compliance with Section 12) license to access and use the Partner Interface during the Term. This access is restricted to Authorized Users within the Territory, exclusively for managing relationships with Advertisers. Additional terms for other Cloud Services may be found in Appendix A to these Partner Terms (“Product Specific Terms” or “PSTs”), which apply if Partner uses those specified services. All other rights are reserved by Omtrackr.com. Partner is responsible for ensuring its Authorized Users comply with the Partner Terms and is liable for their actions.

(ii) Third-Party Authorized Users

  • (A) Corporate Affiliate Use

Partner may authorize its Corporate Affiliates and their employees to use Cloud Services. This is subject to the following conditions:

Partner must have the authority to bind Corporate Affiliates and their Authorized Users to the Partner Terms by executing an Order Form.

Partner must be licensed for any increased usage by Corporate Affiliates and their Authorized Users.

Partner and Corporate Affiliates are jointly and severally liable for the use of Cloud Services.

A breach by a Corporate Affiliate or its Authorized Users is considered a breach by Partner. Corporate Affiliate use rights are only valid as long as the Partner Terms are in effect.

  • (B) Service Provider Use

Partner may permit third-party service providers and contractors (“Service Providers”) to use Cloud Services, but only as necessary for Partner’s intended use under the Partner Terms. This authorization is subject to:

Partner and Service Providers must have a written agreement ensuring compliance with terms similar to those in the Partner Terms, including license grants, restrictions, and non-disclosure of Supplier Confidential Information.

Partner must be licensed for any increased usage by Service Providers.

Partner is jointly and severally liable for Service Providers’ use of Cloud Services.

A breach by a Service Provider is considered a breach by Partner.

Service Providers cannot use Cloud Services for their own business operations or to provide services to any other party.

(b) Restrictions. Partner agrees not to, and will not allow anyone else to, access or use the Cloud Services except as expressly allowed by the Partner Terms. Specifically, and without limiting the generality of the above, Partner shall not, unless expressly permitted by the Partner Terms: (i) decompile, disassemble, reverse engineer, or attempt to derive the source code of the Cloud Services, subject to any non-waivable rights under applicable law; (ii) modify, enhance, alter the data structures of, or create derivative works from the Cloud Services; (iii) rent, lease, sell, sublicense, or transfer the Cloud Services to third parties; (iv) make the Cloud Services available to anyone other than Authorized Users who need such access; (v) input, upload, transmit, or otherwise provide any unlawful or harmful information or materials to or through the Cloud Services, including any viruses, worms, malware, ransomware, or other malicious code (“Harmful Code”); (vi) use the Cloud Services in a way that infringes, misappropriates, or violates any intellectual property rights or other rights of any third party, or violates any applicable law; (vii) use the Cloud Services for competitive analysis of the Cloud Services; (viii) use the Software or Cloud Services to distribute (or facilitate the distribution of) Partner Data that contains or links to material that is unlawful, harmful, threatening, defamatory, obscene, harassing, or otherwise objectionable to Supplier; (ix) use data mining robots or similar data gathering or extraction methods on the Cloud Services; (x) facilitate spam, excessive or unlawfully sourced data transfers, or engage in activities resulting in spam warnings from industry monitors; and (xi) use the Cloud Services for any fraudulent activities or misrepresentations regarding Conversions, Commissions, or otherwise.

(c) Changes. Omtrackr reserves the right, at its sole discretion, to make changes to the Cloud Services as it deems necessary or useful to: (i) maintain or enhance: (A) the quality or delivery of Omtrackr’s services to its customers; (B) the competitive strength or market position of Omtrackr’s products; or (C) the cost efficiency or performance of the Cloud Services; or (ii) comply with applicable law.

3. Support Services

Omtrackr.com, through its team, will offer Support Services for the Cloud Services. Omtrackr.com retains full discretion to decide which Support Services will be provided.

4. Third-Party Relationships

(a) Third parties, or Omtrackr.com on their behalf, may offer software, APIs, documents, data, content, specifications, products, equipment, components, websites, or professional services licensed by third parties (“Third-Party Content“) that (i) are compatible with or accessible through the Cloud Services, and (ii) are not embedded in or inseparable from the Cloud Services. Omtrackr.com is not responsible for the licensing, implementation, or operation of Third-Party Content.

(b) Third-Party Content excludes any third-party software, libraries, or code that (i) are embedded in or form an inseparable part of the Cloud Services, and (ii) have been licensed by Omtrackr.com for use in Cloud Services (“Embedded Third-Party Content“). Partners must comply with any additional terms from providers of Embedded Third-Party Content, as specified in the applicable PSTs. If Embedded Third-Party Content includes open-source software, it is available under the respective open-source licenses listed in the applicable PSTs.

(c) When using Cloud Services in connection with Advertisers, Partners must create and enforce a contract with each Advertiser (“Partner-Advertiser Agreement“). This agreement must at a minimum: (i) include terms for documenting Offers and resolving disputes; (ii) not make representations or warranties on behalf of Omtrackr.com; (iii) ensure compliance with all applicable laws, including Export Laws (as defined in Section 14(a) below); and (iv) acknowledge that Omtrackr.com is not liable for any damages arising from the Partner-Advertiser Agreement, whether direct, special, incidental, or consequential. If Omtrackr.com provides sample terms for Advertisers, Partners acknowledge that these samples are for reference only, and it is their responsibility to ensure their agreements are appropriate.

5. INTELLECTUAL PROPERTY

(a) Ownership of Products and Supplier Materials

Omtrackr retains all rights, title, and interest, including IP Rights, in the Products and Supplier Materials, along with any enhancements and modifications. Partners are granted only a license to use these Products and Materials. This agreement does not transfer any ownership or proprietary interest to the Partner, except for the limited licenses explicitly stated. Partners agree not to claim any rights or interests in the Products or Supplier Materials against Omtrackr, its affiliates, or licensors.

(b) Ownership of Partner Data

Partners retain all rights, title, and interest, including IP Rights, in their own data.

(c) Consent to Use Partner Data

Partners grant Omtrackr a non-exclusive, worldwide, royalty-free, perpetual, and irrevocable license to access and use Partner Data as needed to enforce the Partner Terms, exercise rights, and fulfill obligations under the Partner Terms. Omtrackr is also granted a similar license to use Partner Data to create Usage Data, which will become Supplier Materials. If any Usage Data is ever considered Partner Data, Partners grant Omtrackr a license to use such data as necessary. Omtrackr will use Partner Data only as permitted by this section.

(d) Partner Feedback

Omtrackr owns all rights to any suggestions, ideas, enhancement requests, feedback, or recommendations provided by Partners for improving the Products (“Partner Feedback”). Omtrackr has no obligations to Partners regarding this feedback, and Partners are not obligated to provide it.

(e) Use of Marks

Each party retains rights to its own Marks. Partners must obtain written consent to use Omtrackr’s Marks. Omtrackr may use Partner’s Marks in its promotional and marketing materials with permission, but no proprietary interest in the Marks is granted to Omtrackr. Omtrackr owns the rights to its marketing materials, except where Partner’s Marks are used. Omtrackr is not required to use or compensate for the use of the Marks. Partners can terminate this permission with 30 days’ written notice, and Omtrackr will stop using the Marks after this period. However, existing materials with the Marks can still be used and distributed where reasonable changes are not feasible.

6. Confidentiality and Data Privacy

(a) Partner Responsibilities

Partners must adhere to all relevant anti-spam and data privacy laws and regulations. They are responsible for obtaining all necessary rights and permissions to use their data and to instruct Omtrackr to use their data in accordance with the Partner Terms. This includes securing rights to license the data to Omtrackr as specified in the Partner Terms. Additionally, Partners are accountable for:

(i) Ensuring the integrity of their data,

(ii) Implementing controls to restrict access and usage of the Cloud Services to Authorized Users only,

(iii) Taking commercially reasonable steps to secure and protect their data from unauthorized access and loss, as far as the features and settings of the product allow.

These responsibilities lie solely with the Partner unless expressly stated otherwise in the Partner Terms.

(b) Omtrackr Responsibilities

(i) Compliance with Applicable Laws:

Omtrackr will comply with all relevant anti-spam and privacy laws while fulfilling its obligations under the Partner Terms. We will assist Partners as reasonably requested to help them meet their legal obligations, although such assistance may incur additional costs unless it results from Omtrackr’s breach of the Partner Terms.

(ii) Data Security:

The terms outlined in the Data Processing Agreement (DPA) will apply when Omtrackr processes any Personal Data as defined in the DPA. These terms are incorporated into this Agreement by reference. If Omtrackr does not process any Personal Data, the following will apply:

(A) Omtrackr will implement reasonable technical and organizational measures to protect Partner Data from unauthorized use and disclosure.

(B) In the event of any unauthorized access, use, or disclosure of Partner Data within Omtrackr’s control (a “Data Incident”), Omtrackr will notify the Partner within a reasonable timeframe after discovering the incident, use commercially reasonable efforts to investigate and resolve the issue, and provide the Partner with information as needed to aid their investigation.

(c) Mutual Nondisclosure Obligations

(i) Access to Confidential Information: Under the Partner Terms, both parties may gain access to the other’s “Confidential Information.” This includes any information disclosed that is (A) clearly marked as “Confidential” or similar; (B) identified as “Confidential” at the time of disclosure and confirmed in writing; or (C) should reasonably be known to be confidential given the circumstances (e.g., pricing, non-public Personal Data, Products). Confidential Information excludes information that the recipient can prove (V) was known before disclosure, (W) was public knowledge at the Effective Date of the Partner Terms, (X) becomes public through no fault of the recipient, (Y) was received from a third party without breach of any obligation, or (Z) was independently developed without breaching the Partner Terms.

(ii) Confidentiality Commitment: Both parties will treat each other’s Confidential Information with the same care they treat their own, and at least with a reasonable degree of care. This confidentiality obligation lasts for three years after the termination of the Partner Terms, except for Products and Documentation provided by the Supplier, which must be kept confidential indefinitely.

(iii) Permissible Disclosures: Confidential Information can be shared with the receiving party’s employees, subcontractors, consultants, agents, and representatives who need to know it to fulfill obligations or exercise rights under the Partner Terms. These individuals must be contractually obligated to protect this information. Partner Confidential Information can also be disclosed to the Supplier’s Affiliates to support work under a direct agreement, with the same level of protection. Each party is responsible for any breaches of confidentiality by their employees, subcontractors, consultants, agents, and representatives. The Supplier may disclose Partner’s Confidential Information to Advertisers or Third-Party Content providers as necessary to support the Partner’s relationships with them.

(iv) Legal Disclosures: It is not a breach of this section if Confidential Information is disclosed due to a subpoena or other legal process, provided the served party promptly notifies the other party (if legally allowed) and offers reasonable assistance to seek a protective order.

(v) Injunctive Relief: The parties agree that monetary damages are insufficient for breaches of confidentiality obligations and recognize that such breaches would cause irreparable harm. Therefore, in the event of a breach or threatened breach, the non-breaching party may seek injunctive relief from a competent court.

By adhering to these guidelines, both Omtrackr.com and its partners can ensure that sensitive information remains protected and confidential, fostering a trustworthy business relationship.

(d) Sensitive Personal Information. “Sensitive Personal Information” includes an individual’s financial data, sexual preferences, medical or health details protected under health data protection laws, biometric data (used for unique identification), and children’s personal information safeguarded under child data protection laws (such as the personal information defined by the US Children’s Online Privacy Protection Act (COPPA)). It also covers any similar terms defined by applicable data protection or privacy laws. Partners must not collect, process, or store any Sensitive Personal Information using our Cloud Services without prior written consent from the Supplier. However, executing an agreement or addendum (e.g., a Business Associate Addendum or Data Processing Agreement that explicitly covers Sensitive Personal Information) will be considered as consent.

(e) Return and Destruction of Confidential Information. Except where necessary for exercising rights intended to survive under the Partner Terms, upon termination or expiration of the Partner Terms: (i) all rights granted by the disclosing Party regarding its Confidential Information will automatically terminate, and the receiving Party must immediately cease (and ensure its employees, affiliates, subcontractors, consultants, agents, and other representatives cease) any access to and use of the disclosing Party’s Confidential Information; and (ii) the receiving Party must securely delete or destroy the disclosing Party’s Confidential Information in accordance with its sensitivity. Upon the disclosing Party’s request, an officer of the receiving Party shall provide written certification of such deletion or destruction. Notwithstanding this, the receiving Party may retain a copy of Confidential Information for archival purposes if required by law or per its genuine records retention policies, provided it continues to adhere to the restrictions in this Section 6 as long as it retains such Confidential Information. The Supplier is not obligated to retain data more than thirty (30) days beyond the expiration or termination of the Partner Terms.

7. Indemnification

Partner agrees to defend, at their own expense, Omtrackr against any claims, demands, suits, or proceedings initiated by a third party under the following conditions:

(i) Due to Partner’s misuse or non-compliance with the Products as per the Partner Terms, applicable laws, regulations, or third-party contractual obligations.

(ii) Allegations that Partner Data, or its use by Omtrackr in accordance with the Partner Terms, infringes or misappropriates third-party rights.

(iii) Any issues arising from Partner’s relationship with Advertiser, including but not limited to Offers or the Partner-Advertiser Agreement (referred to as a “Claim Against Omtrackr”).

Partner will cover any damages, attorney fees, and costs awarded against Omtrackr, or any amounts paid under a settlement approved by Partner in writing, due to a Claim Against Omtrackr. This is contingent on Omtrackr promptly notifying Partner in writing about the Claim, giving Partner full control over its defense or settlement, and providing necessary assistance and information.

8. Warranty & Warranty Disclaimer

(a) Mutual Representations and Warranties

Both Parties represent and warrant to each other that:

(i) They are duly organized, validly existing, and in good standing under the laws of their respective jurisdictions.

(ii) They have the full authority to enter into and fulfill their obligations under the Partner Terms.

(iii) The execution of the Partner Terms by their representative has been duly authorized.

(iv) Upon execution by both parties, the Partner Terms will be legally binding and enforceable.

(b) Additional Supplier Representations, Warranties, and Covenants

Omtrackr warrants that its Cloud Services will materially conform to current documentation. As Partner’s sole remedy for any breach, Omtrackr will use commercially reasonable efforts to correct any reproducible material non-conformance reported within thirty (30) days from discovery, provided the non-conformance is not caused by:

(A) Partner’s negligence, gross negligence, or intentional misconduct.

(B) Partner’s failure to use the Cloud Services as per the Partner Terms.

(C) Third-party content or services not provided by Omtrackr.

(D) Harmful Code, unless introduced due to Omtrackr’s negligence or misconduct.

(c) Additional Partner Representations, Warranties, and Covenants

Partner warrants and covenants that:

(i) They have complied and will continue to comply with all applicable laws and regulations, especially those related to the collection and use of Partner Data as per the Partner Terms.

(ii) They have the necessary rights and consents for the Partner Data, ensuring that its receipt and processing by Omtrackr does not infringe on any third-party IP rights, privacy rights, or violate any laws or regulations.

(d) Disclaimers: Despite the warranties mentioned in Section 9, and within the limits allowed by law, you understand that the products and third-party content are provided “as is” and “with all faults.” We disclaim all other warranties, representations, guarantees, or conditions, whether express or implied, including but not limited to the implied warranties of merchantable quality, merchantability, satisfactory quality, fitness for a particular purpose, or the use of reasonable skill and care.

Specifically, we do not guarantee uninterrupted or error-free operation of the products, nor do we warrant that they will meet all your requirements or expectations. We also do not make any warranties regarding interactions between you and advertisers facilitated by our services or third-party content provided with or as part of the products. Additionally, we are not liable for any third party’s privacy or data security practices.

Our limited warranties do not cover any product that has been modified or altered by anyone other than us, our affiliates, or our personnel. Our personnel are not authorized to make any warranties on our behalf, and any such purported warranties are null and void.

While some jurisdictions may not allow the exclusion of certain warranties, the disclaimers above may not apply to you. Nothing in our terms excludes or limits any rights or remedies implied or imposed by applicable law that cannot be lawfully excluded or limited. It’s your responsibility to determine if our products are suitable for your needs.

9. Limitation of Liability

Our total liability under the terms in connection with the products will be limited to direct damages up to one thousand US dollars ($1,000.00). We will not be liable for any special, indirect, incidental, or consequential damages arising from or related to the terms or the products. This includes but is not limited to loss of revenue, profits, goodwill, data, business interruption, failure to realize expected savings, data corruption, or claims by third parties, even if we have been advised of the possibility of such damages.

These limitations apply regardless of how the claim arises and form a material basis of our agreement. We are not liable for claims arising from interactions between you and advertisers, whether facilitated by our services or not.

10. Term and Termination.

(a) Duration. The Partner Terms take effect on the date they bind the Parties, as detailed in the first paragraph of these terms (the “Effective Date”), and will remain in effect until terminated earlier by Supplier or Partner as outlined in the Partner Terms (the “Term”).

(b) Suspension. Supplier reserves the right to suspend Partner’s Product usage without prior notice for any reason or without any specific reason. In case of such suspension under Section 10(b), (A) Supplier retains the right to pursue additional remedies available under the Partner Terms or otherwise, and (B) Partner loses access to Products, Supplier Materials, including Confidential Information, during the suspension period, except with prior written consent from Supplier to use these for rectifying the issue that led to suspension. Any notice under Section 10(b) also fulfills the notice requirements in Section 10(c) below. Supplier’s decision not to suspend under Section 10(b) does not waive any rights under the Partner Terms or otherwise.

(c) Termination. Either Party can terminate the Partner Terms with thirty (30) days’ written notice to the other Party. Supplier may immediately terminate the Partner Terms if: (i) Partner violates any law in using a Product or is causing, or likely to cause, significant harm to Supplier, its Corporate Affiliates, its Personnel, or the Products; or (ii) Partner undergoes insolvency proceedings, appoints a receiver, administrator, controller, or liquidator, assigns property for creditor benefit, or faces bankruptcy or similar proceedings.

(d) Consequences of Termination or Expiration. Upon termination or expiration of the Partner Terms, Partner loses all granted rights under the terms. However, surviving obligations and provisions in the Partner Terms, explicitly stated or reasonably expected to survive, will continue post-termination or expiration, including but not limited to Sections 5, 6(c), 7, 9, 12, and 13 of the Partner Terms.

11. ASSIGNMENT. Both Parties agree not to transfer their rights or obligations without written consent from the other Party. However, the Supplier can transfer the Partner Terms to any of its Corporate Affiliates without Partner’s consent, as long as the terms still apply to any successor or assignee of the Supplier. If Partner undergoes a change in ownership to a direct competitor of Supplier, Supplier can terminate the Partner Terms immediately with written notice.

12. GOVERNING LAW

(a) The laws governing any interpretation issues, the existence of the Partner Terms, or any lawsuits arising from them, as well as the jurisdiction for such lawsuits, depend on Partner’s country of incorporation or organization. This determination will be made accordingly:

1: United States of America, Mexico or a Country in Central or South America or the Caribbean

  • Governing Law: The laws of the State of Maryland and the federal laws of the United States applicable in that state.
  • Courts Having Jurisdiction:
  • The United States District Court for the District of Maryland (to the extent it has subject matter jurisdiction), or
  • The courts of the State of Maryland in Baltimore County

2: Canada

  • Governing Law: The laws of the Province of Ontario and the laws of Canada applicable in that province.
  • Courts Having Jurisdiction: Toronto, Ontario

3: United Kingdom or Another Country in Europe, the Middle East or Africa

  • Governing Law: The laws of England and Wales.
  • Courts Having Jurisdiction: England and Wales

4: Australia or a Country in Asia or the Pacific Region

  • Governing Law: The laws of the State of New South Wales and the laws of the Commonwealth of Australia applicable in that state.
  • Courts Having Jurisdiction: Sydney, Australia

b. Each party commits to the governing law specified above, irrespective of choice or conflicts of law rules. They also agree, subject to the availability of injunctive relief as per Section 6(c) (Confidentiality) and Section 13 (Disputes), to the jurisdiction of the designated courts. The parties expressly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods.

13. Disputes: In the event of any dispute, controversy, or claim between the parties, each party will appoint a senior management representative to engage in discussions and attempt to resolve the matter. These designated representatives will negotiate in good faith for a period of thirty (30) days in an effort to reach a resolution. If the dispute remains unresolved after this 30-day period, the parties will proceed to resolve the matter through binding arbitration in the jurisdiction specified in Section 12(a), using a single arbitrator who is impartial and possesses expertise in both legal and business matters within the software industry. The parties agree to split the arbitrator’s fee equally, and each party will bear its own costs, including legal expenses, unless the arbitrator determines otherwise. The arbitration process will be conducted in English and will adhere to arbitration rules, with the location determined based on the country of incorporation or organization of the Partner as indicated below. It’s important to note that this Section 13 does not impede a party’s ability to seek injunctive relief.

1: The United States of America, Mexico or a Country in Central or South America or the Caribbean

  • Applicable Arbitration Rules: Commercial Arbitration Rules of the American Arbitration Association
  • Location of Arbitration: Baltimore County, Maryland

2: Canada

  • Applicable Arbitration Rules: Canadian Arbitration Association
  • Location of Arbitration: Toronto, Ontario

3: United Kingdom or Another Country in Europe, the Middle East or Africa

  • Applicable Arbitration Rules: London Court of International Arbitration
  • Location of Arbitration: London, England

4: Australia or a Country in Asia or the Pacific Region

  • Applicable Arbitration Rules: Australian Centre for Commercial Arbitration
  • Location of Arbitration: Sydney, Australia

14. General Terms

(a) Export Compliance: Our products and their derivatives may be subject to export laws and regulations. You confirm that you are allowed to conduct business in the United States of America, Canada, United Kingdom, or European Union, and with entities from these regions. You agree not to resell or allow access to our products in countries under embargo by the United States of America, Canada, United Kingdom, European Union, or United Nations, or in violation of any other applicable export law or regulation. If you breach this provision, now or in the future due to new restrictions, we reserve the right to suspend or terminate our partnership immediately with notice.

(b) Anti-Corruption: You assure us that you have not received any illegal bribes, kickbacks, or improper payments from any of our employees or agents in connection with our partnership. Standard business gifts and entertainment are acceptable. If you become aware of any violation of this policy, please promptly inform us.

(c) Subcontractors: We may use subcontractors at our discretion to provide or develop our products. However, this does not relieve us of our obligations under our partnership agreement.

(d) Non-Solicitation: During our partnership and for one year after its termination, neither party will solicit, recruit, or employ employees of the other party without written consent. This restriction does not apply to general public or industry solicitations, using search firms, or hiring employees who have already left the other party’s employment.

(e) Notices: All official communications will be in writing and considered delivered upon personal delivery, one business day after being sent by reputable shipping service, or upon confirmation of electronic delivery to the recipient’s last known email address. Each party can update its notice recipient by informing the other party accordingly.

(f) Entire Agreement; Precedence; Severability. The Partner Terms encompass the entire agreement between the Parties regarding their subject matter, overriding all prior proposals, oral or written communications, and negotiations. Each Party acknowledges that the Partner Terms explicitly outline their agreements, and they do not rely on any other statements or assurances. In case of conflict between the DPA and any other part of the Partner Terms, the DPA takes precedence. If any provision of these terms is deemed invalid by a court, it won’t affect the validity of the remaining provisions.

(g) Amendment. Partner understands that Supplier may modify the Partner Terms at its discretion, with such changes taking effect 30 days after Supplier provides the updated terms. Partner is responsible for reviewing and understanding these updates. If Partner objects to changes that significantly affect their rights, Supplier will negotiate or terminate the terms upon notice. Otherwise, failure to object signifies acceptance. Except for updates by Supplier or as agreed in writing, changes require mutual consent.

(h) Non-Waiver. Unless stated in writing, no waiver of terms or excusal of breaches will occur under the Partner Terms.

(i) Force Majeure. Neither Party is liable for delays due to uncontrollable events, such as natural disasters, government actions, or acts of war. The affected Party must make reasonable efforts to mitigate the impact and resume normal operations.

(j) Audit. Supplier may audit Partner’s use of Products annually to ensure compliance with the Partner Terms. Partner agrees to cooperate and provide necessary information, with the audit not unduly disrupting Partner’s business. Supplier bears audit costs, excluding Partner’s cooperation costs.

(k) Independent Contractor Relationship. The Partner Terms establish an independent contractor relationship between the Parties. This relationship does not create an agency, joint venture, or partnership between Supplier and Partner. Supplier, along with its Personnel and representative entities, acts independently and not as employees or agents of Partner. The Partner Terms do not grant either Party the authority to bind or assume obligations on behalf of the other Party.

Appendix A: Product-Specific Terms

These “Product-Specific Terms” (PSTs) apply to the specified Product mentioned below, if Partner has acquired or licensed it. These terms also extend to any future versions of the Product, regardless of rebranding or modifications.

1. Omtrackr Pay

a. Definitions:

i. Third-Party Electronic Money Platform: A service operated by a third party where customers can store money electronically.

ii. Omtrackr Platform: Supplier’s main offering of Cloud Services used by Partner and Advertisers to track Commissions and Conversions.

b. Cloud Services Description

i. Omtrackr Pay Full-Service

  1. Overview: Omtrackr Pay Full-Service is a technology-driven Cloud Service where Supplier uses its Third-Party Payment Platform account to help transfer Commissions from Advertisers to Partner. However, Supplier only uses Commissions as directed by Advertisers and doesn’t own them.

  2. Commission Review and Payment Process

     a. Monthly Reporting: Supplier sends Advertisers a report at the start of each month listing tracked Conversions and Commissions owed to Partner.

     b. Approval Process: Advertisers can approve or dispute Commission calculations in the report. Any disputes are resolved between Advertisers and Partner.

     c. Payment Timing: Approved Commissions are paid within the same month if there’s enough time left (more than seven business days). Otherwise, they’re paid the following month.

     d. Failure Notification: If a Commission transfer fails, Supplier informs Partner and Advertisers. If unresolved after ninety days, the Commission is returned to the Advertiser.

ii. OmtrackrPay Self-Service

Overview: Omtrackr Pay Self-Service is a technology-driven Cloud Service where Supplier enables connections between the Omtrackr Platform and Partner’s Third-Party Electronic Money Platform accounts. This allows Partner to receive Commissions from Advertisers.

Third-Party Electronic Money Platforms: In Omtrackr Pay Self-Service, Supplier offers functionality within the Omtrackr Platform to integrate with specific Third-Party Electronic Money Platforms. Supplier is not involved in Commission transfers beyond this integration. Partner manages its own Third-Party Electronic Money Platform account and has the flexibility to choose any integrated Third-Party Electronic Money Platform with the Omtrackr Platform.

c. Dispute Resolution

i. Partner Engagement. In accordance with Section 4(c) of the Partner Terms, Partner commits to establishing a Partner-Advertiser Agreement containing minimum terms governing disputes with Advertisers. Partner will make reasonable efforts to ensure these agreements include mediation or arbitration clauses before pursuing litigation.

ii. Supplier Compensation. Should any dispute arising from the Partner-Advertiser Agreement involve Supplier’s participation, Partner agrees to cover Supplier’s reasonable out-of-pocket expenses, such as legal fees. These costs may be shared with Advertisers if agreed upon in the Partner-Advertiser Agreement or during dispute resolution discussions.

d. Warranties and Disclaimers

i. Customer-Partner Agreement: As outlined in Section 4(c) of the GTCS, Partner agrees to establish a Partner-Advertiser Agreement with its Advertisers, governing their relationship. In essence, Supplier disclaims any liability towards Partner concerning disputes, claims, demands, suits, or proceedings arising from Partner’s dealings with Advertisers. This includes, but is not limited to, matters such as determining Commission amounts, resolving disputes over Commissions or Conversions, assessing offer validity, collection actions, tax withholdings, and fees related to the use of Omtrackr Pay Self-Service.

ii. Third-Party Electronic Money Platform Accounts: Partner acknowledges that neither Supplier nor any Third-Party Electronic Money Platform acts as a bank, with the latter possibly functioning as a money transmitter. However, Supplier explicitly disclaims any fiduciary duties or other obligations beyond those expressly stated in providing Omtrackr Pay Cloud Services. Partner uses these services at their own risk, with Supplier committed to utilizing reputable Third-Party Electronic Money Platforms. In case of lost Commissions in Supplier’s Third-Party Electronic Money Platform account, Supplier will make reasonable efforts to recover them, subject to certain conditions outlined in Section 9, Limitations of Liability, of these Partner Terms.

iii. Additional Warranties and Disclaimers: These warranties and disclaimers in Section 1(e) of the PSTs are supplementary to those applicable to the Products under Section 9 of the GTCS.

e. Suspension and Termination Clause: Despite any contrary provisions in these Partner Terms, Supplier retains the right to suspend or terminate Omtrackr Pay Cloud Services at its discretion, with written notice to Partner. In case of such suspension or termination, any Commissions owed to Partner in Supplier’s Third-Party Electronic Money Platform account will be handled by Supplier as follows:

– Suppliers may choose to distribute these Commissions to partners.

– Alternatively, Supplier may opt to return these Commissions to the relevant Advertiser.

This decision rests solely with the Supplier and is executed at its complete discretion.

Updated: 17th June 2024

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