This Affiliate Program Operating Agreement (the "Agreement") is made and entered into by VIVID TELECOMMUNICATION SDN. BHD.
("you" or "Affiliate") the party submitting an application to become a Vivid Concepts affiliate. The terms and conditions contained in this Agreement apply to your participation with Vivid Concepts Affiliate Program. By submitting an application, you expressly consent to all the terms and conditions of this Agreement.
Enrolment in the Affiliate Program
You must accurately complete the application to become an affiliate (and provide us with future updates) and not use any aliases or other means to mask your true identity or contact information. After we review your application, we will notify you of your acceptance or rejection to the Affiliate Program, generally within three (3) business days. We may accept or reject your application at our sole discretion for any reason.
Obligations of the Parties
Subject to our acceptance of you as an affiliate and your continued compliance with the terms and conditions of this Agreement.
Vivid Concepts shall pay the invoices, depending on the Affiliate Platform used, for all Commissions payable under this Agreement and shall remit payment to Affiliate based upon that invoice which payment is made. In the event that Affiliate disputes in good faith any portion of an invoice, Affiliate must submit that dispute to Vivid Concepts in writing and in sufficient detail within thirty (30) days of the date on the invoice. If Affiliate does not dispute the invoice as set forth herein, then Affiliate agrees that it irrevocably waives any claims based upon that invoice. If Affiliate has an outstanding balance due to Vivid Concepts under this Agreement or any other agreement between the Affiliate and Vivid Concepts, whether or not related to the Affiliate Program, Affiliate agrees that Vivid Concepts may offset any such amounts due to Vivid Concepts from amounts payable to Affiliate under this Agreement.
Affiliate also agrees to:
- Have sole responsibility for the development, operation, and maintenance of, and all content on or linked to, the Affiliate’s Media.
- Ensure that all materials posted on your Media or otherwise used in connection with the Affiliate Program (i) are not illegal, (ii) do not infringe upon the intellectual property or personal rights of any third party and (iii) do not contain or link to any material which is harmful, threatening, defamatory, obscene, sexually explicit, harassing, promotes violence, promotes discrimination (whether based on sex, religion, race, ethnicity, nationality, disability or age), promotes illegal activities (such as gambling), contains profanity or otherwise contains materials that informs you that it considers objectionable (collectively, "Objectionable Content").
- Not make any representations, warranties or other statements concerning Vivid Concepts or Client or any of their respective products or services, except as expressly authorized herein.
- Make sure that your Media does not copy or resemble the look and feel of the Program Web Site or create the impression that your Media is endorsed by Vivid Concepts or Clients or a part of the Program Web Site, without prior written permission from us.
- Comply with all (i) obligations, requirements and restrictions under this Agreement and (ii) laws, rules and regulations as they relate to your business, your Media or your use of the Links.
- Comply with the terms, conditions, guidelines and policies of any third party services used by Affiliate in connection with the Affiliate Program, including but not limited to, email providers, social networking services and ad networks.
- Always prominently post and make available to end-users any terms and conditions in connection with the Offer set forth by Vivid Concepts or Client, or as required by applicable laws regarding such Offers.
- The following additional program-specific terms shall apply to any promotional programs set forth below:
Advertising Campaigns. No Links can appear to be associated with or be positioned on chat rooms or bulletin boards unless otherwise agreed by Vivid Concepts in writing. Any pop-ups/under used for the Affiliate Program shall be clearly identified as Affiliate served in the title bar of the window and any client-side ad serving software used by Affiliate shall only have been installed on an end-user's computer if the function of the software is clearly disclosed to end-users prior to installation, the installation is pursuant to an affirmatively accepted and plain-English end user license agreement and the software be easily removed according to generally accepted methods.
Affiliate Network Campaigns. For all Affiliate's that maintain their own affiliate networks, Affiliate agrees to place the Links in its affiliate network (the "Network") for access and use by those affiliates in Affiliate Network (each a "Third Party Affiliate"). Affiliate agrees that it will expressly forbid an Third Party Affiliate to modify the links in any way. Affiliate agrees to maintain its Network according to the highest industry standards. Affiliate shall not permit any party to be a Third Party Affiliate whose website or business model involves content containing Objectionable Content. All Third Party Affiliates must be in good standing with the Affiliate. Affiliate must require and confirm that all Third Party Affiliates affirmatively accept, through verifiable means, this Agreement prior to obtaining access to the links.
Affiliate shall be prohibited to engage in any of the following:
Utilising search engine optimisation for brand bidding using Vivid Concepts brand name and any or all of its misspellings;
Utilising search engine optimisation to include Vivid Concepts URL in the display URL;
Utilising search engine optimisation to include Affiliate Links in the destination URL;
Engaging in any and/or all direct marketing strategies through Facebook including paid advertisements utilising Vivid Concepts brand;
Partaking in online marketing campaigns in any and/or all of the following: Affiliate Networks, Torrent sites, Streaming sites, Adult sites, websites promoting abusive, erotic, extremist, radical political content, sites with content unsuitable for adolescents, Links on other websites, pop-under or pop-ups, cookie dropping.
- PROGRAM voucher codes. In the event of partial returns of orders, Vivid Concepts shall extend Commissions only on that part of the order which is successfully completed and has not been returned. For the avoidance of doubt there shall be no Commissions payable on any returned part of an order.
Except as otherwise provided in this Agreement or with the consent of Vivid Concepts, you agree that all information, including, without limitation, the terms of this Agreement, business and financial information, customer lists, and pricing and sales information, concerning us or any of our affiliates provided by or on behalf of any of them shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by you for any purpose other than your participation in the Affiliate Program, except and solely to the extent that any such information is generally known or available to the public through a source other than you. Affiliate shall not use any information obtained from the Affiliate Program to develop, enhance or operate a service that competes with the Affiliate Program, or assist another party to do the same.
Limited License & Intellectual Property
We grant you a non-exclusive, non-transferable, revocable right to use the Links and to access our web site through the Links solely in accordance with the terms of this Agreement, for the sole purpose of identifying your Media as a participant in the Affiliate Program and assisting in increasing sales through the Program Website. You may not alter, modify, manipulate or create derivative works of the Links or any Vivid Concepts graphics creative, copy or other materials owned by, or licensed to, Vivid Concepts in any way. You are only entitled to use the Links to the extent that you are a member in good standing of the Affiliate Program. We may revoke your license anytime by giving you written notice. Except as expressly stated herein, nothing in this Agreement is intended to grant you any rights to any of Vivid Concepts trademarks, service marks, copyrights, patents or trade secrets. You agree that Vivid Concepts may use any suggestion, comment or recommendation you choose to provide to Vivid Concepts without compensation. All rights not expressly granted in this Agreement are reserved by Vivid Concepts.
This Agreement shall commence on the date of our approval of your Affiliate Program application and shall continue thereafter until terminated as provided herein. You may terminate your participation in the Affiliate Program at any time by removing all Links from your Media, deleting all copies of the Links. We may terminate our participation in one or more Offers or this Agreement at any time and for any reason which we deem appropriate with or without prior notice to you by disabling the Links or providing you with a written notice.
Upon termination of your participation in one or more Offers or this Agreement for any reason, you will immediately cease all use of and delete all Links, plus all Vivid Concepts or Client intellectual property, and will cease representing yourself as a Vivid Concepts or Client affiliate for such one or more Offers. All rights to validly accrued payments, causes of action and any provisions, which by their terms are intended to survive termination, shall survive any termination.
In addition to any other rights and remedies available to us under this Agreement Vivid Concepts reserves the right to delete any actions submitted through your Links and withhold and freeze any unpaid Commissions or charge back paid Commissions to your account if (i) Vivid Concepts determines that you have violated this Agreement, (ii) Vivid Concepts receives any complaints about your participation in the Affiliate Program which Vivid Concepts reasonably believes to violate this Agreement or (iii) any Qualified Action is later determined to have not met the requirements set forth in this Agreement or on the Affiliate Program. Such withholding or freezing of Commissions, or charge backs for paid Commissions, shall be without regard as to whether or not such Commissions were earned as a result of such breach. In the event of a material breach of this Agreement, Vivid Concepts reserves the right to disclose your identity and contact information to appropriate law enforcement or regulatory authorities or any third party that has been directly damaged by your actions.
You are expressly prohibited from using any persons, means, devices or arrangements to commit fraud, violate any applicable law, interfere with other affiliates or falsify information in connection with referrals through the Links or the generation of Commissions or exceed your permitted access to the Affiliate Program. Such acts include, but are in no way limited to, using automated means to increase the number of clicks through the Links or completion of any required information, using spyware and other deceptive acts or click-fraud. Vivid Concepts shall make all determinations about fraudulent activity in its sole discretion.
Representations and Warranties
You hereby represent and warrant that this Agreement constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms and that you have the authority to enter into this Agreement. Subject to the other terms and conditions of this Agreement, Vivid Concepts represents and warrants that it shall not knowingly violate any law, rule or regulation which is applicable to Vivid Concepts own business operations or Vivid Concepts proprietary products or services.
In addition to any notice permitted to be given under this Agreement, we may modify any of the terms and conditions of this Agreement at any time by providing you with a notification by email. The changes will become effective seven (7) business days after such notice. If the modifications are unacceptable to you, you may terminate this Agreement without penalty solely on the account of such termination within such seven (7) business day period. Your continued participation in this Affiliate Program seven (7) business days after a change notice has been posted will constitute your acceptance of such change. In addition, Vivid Concepts may change, suspend or discontinue any aspect of an Offer or Link or remove, alter, or modify any tags, text, graphic or banner ad in connection with a Link. Affiliate agrees to promptly implement any request from Vivid Concepts to remove, alter or modify any Link, graphic or banner ad that is being used by Affiliate as part of the Affiliate Program.
You acknowledge that you have read this Agreement and agree to all its terms and conditions. You have independently evaluated the desirability of participating in the Affiliate Program and each Offer and are not relying on any representation, guarantee or statement other than as set forth in this Agreement or on the Affiliate Program.
THE AFFILIATE PROGRAM AND LINKS, AND THE PRODUCTS AND SERVICES PROVIDED IN CONNECTION THEREWITH, ARE PROVIDED TO AFFILIATE "AS IS". EXCEPT AS EXPRESSLY SET FORTH HEREIN, Vivid Concepts EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. Vivid Concepts DOES NOT WARRANT THAT THE AFFILIATE PROGRAM OR LINKS WILL MEET AFFILIATE'S SPECIFIC REQUIREMENTS OR THAT THE OPERATION OF THE AFFILIATE PROGRAM OR LINKS WILL BE COMPLETELY ERROR- FREE OR UNINTERRUPTED. Vivid Concepts EXPRESSLY DISCLAIMS ANY LIABILITY FOR ANY ACT OR OMISSION OF A CLIENT OR THEIR PRODUCTS OR SERVICES. Vivid Concepts DOES NOT GUARANTEE THAT AFFILIATE WILL EARN ANY SPECIFIC AMOUNT OF COMMISSIONS.