TERMS OF SERVICE
These terms of service (“Terms” “Agreement”) constitute a binding agreement between you (“Affiliate”, “you”, “your”) and 4355768 CANADA INC. (“Invokee,” “we,” “us” or “our”), and govern your use of Invokee’s (“Website”) and the content, products and services offered through the Website (collectively with the Website, the “Services”). By continuing to maintain your affiliate relationship with us, you acknowledge that you have read and understood this Agreement and agree to be bound by its terms and conditions. Upon our request, you agree to sign a non-electronic version of this Agreement. THESE TERMS MAY BE AMENDED OR CHANGED BY US IN OUR DISCRETION, WITH OR WITHOUT NOTICE, AT ANY TIME. Your continued access or use of the Website or any other Services following such changes will be deemed acceptance of such changes. In addition, we reserve the right to modify or cease providing all or any portion of the Services at any time, with or without notice. Be sure to return to this page periodically to ensure familiarity with the most current version of these Terms. We encourage you to contact an attorney of your own choosing and at your own expense in the event that you do not understand any of the terms contained in this Agreement. If you do not agree with anything contained in this Agreement then please cease and desist from using any of our Sites, products and/or services immediately.
2. ACCESS AND PASSWORDS
As part of the subscription process for this Site, you have selected or been assigned a particular password in accordance with Invokee’s password guidelines. YOU AGREE THAT YOU ARE THE ONLY INDIVIDUAL ENTITLED TO ACCESS THE SITE USING YOUR EMAIL ADDRESS AND PASSWORD, AND YOU AGREE NOT TO PERMIT OTHERS TO ACCESS THE SITE USING YOUR EMAIL ADDRESS OR PASSWORD. You agree that all actions taken by you, or any other user that accesses the Site using your email address and password, at or through the Site will be attributed to and legally bind you, even with respect to acts for which the user had no actual authority or made an error. You assume all resulting liability from use of the Site and any services available on it by you or others using your email address and password. If you lose your password, please click the “Forgot your password?” link on the login page.
3. REPRESENTATIONS AND WARRANTIES
You represent and warrant to Invokee that: (a) you possess the legal right and ability to enter into this Agreement; (b) all information submitted by you to the Site is true and accurate complete without omissions of necessary information, current and kept up to date; (c) you will be responsible for all use of your username and password even if such use was conducted without your authority or permission; (d) you are at least 18 years old and the age of majority and legal consent in the jurisdiction in which you live or reside, and (e) you will not use the Site for any purpose that is unlawful or prohibited by this Agreement (f) you are NOT operating from a country, state. province or territory in which the distribution and/or sale of adult material is forbidden.
- PAYMENTS AND COMMISSIONS
- Payments are made 30 days after the end of the period. Periods are from the 1st to the 15th of every month and from the 16th to the last day of the month. We try our very best to have payments out no later than 30 days after the end of the period, however we cannot guarantee that payment will have reached your account by this time.
- Payment methods are chosen at your own risk. Invokee is not responsible for any loss of funds via third parties once payments have been transferred to them.
- Individual payout amounts are subject to change and must remain strictly confidential; no public display of commissions will be tolerated, such display will equate to a breach of the confidentiality provisions of this agreement.
- Affiliates will not be paid for referring themselves or ‘multiple accounts’.
- Payment will be made via our acceptable payment options as listed on your profile page and are subject to change.
- Minimum payout is $100. Some payment methods have higher minimum payouts. All balances will be carried forward until the minimum payout is achieved.
- Should an Affiliate terminate his account and the amount owed in said account is $20 or less said amount will be forfeited by Affiliate.
- All commissions are payable in U.S. Dollars
- Any and all chargebacks will be debited from the affiliate’s account balance.
- We actively monitors traffic, clicks, click-throughs, sales, registrations, impressions, leads, payouts and other program-related activities for potential fraud. (Activities) If we suspects that your account has been used in a fraudulent manner, your account will be deactivated effective immediately and with no notice to you pending further investigation. If you add Activities, or inflate Activities through the use of fraudulent means of traffic generation, as determined solely by us, you will forfeit all of the pending payouts, and your Affiliate account will be terminated effective immediately. Invokee reserves sole judgment in determining fraud and you agree to be bound by any and all such determinations. It is your OBLIGATION to prove to us that you have NOT engaged in fraud. Invokee will hold your payout-related payments in ‘Pending Status’ until you have satisfactorily provided evidence that demonstrates to us that you have not engaged in fraud. If you are unable to provide us with satisfactory evidence that you have not engaged in fraud within seven (7) days of your payouts being placed in “Pending Status,” then we reserve the right to terminate your Affiliate account and cancel payment, at our sole discretion and without any further obligations to You. If payouts have been previously issued, and we deem these payments have derived from fraudulent activities, we will avail ourselves of all means necessary to recuperate said funds as well as expenses incurred to take such action, including but not limited to attorneys fees.
- Any leads and or traffic resulting from incorrect targeting and/or targeting towards incorrect device types will not be paid to the Affiliate.
- Any fees incurred due to inaccurate information provided to Invokee will be the responsibility of the affiliate.
- If you refer another person or entity that becomes a new affiliate for us, we shall pay you 5% of revenue generated by your Referred Affiliate (“RA”). We shall determine what revenue qualifies for the share in our sole and reasonable discretion and may adjust the revenue for any reason, including, without limitation, amounts not collected, amounts setoff, charged back, or canceled by its customers, adjustments for discrepancies between tracking systems, and reserves for anticipated adjustments. You will only earn revenue for a new RA once they have been accepted into our network (and we may accept or deny in our sole and absolute discretion) and once they sign an agreement reasonably similar to this Agreement. In order to receive your commission from your RA’s revenue you must keep an active affiliate relationship with us, should you be inactive within our network for more than 90 days (i.e. not login) you will forfeit any and all commissions generated by your RA’s revenues. We reserve the right to discontinue our relationship with any affiliate at any time in our sole and absolute discretion and your revenue share of the AR shall stop upon termination of that RA’s relationship with us. We may terminate this referral program at any time, without notice to you, and without any liability, whatsoever, including liability to pay revenue shares that have not completed the term. Termination of this referral program does not affect other obligations in this Agreement.
5.1 The Site contains proprietary material of Invokee (or material that other partners have licensed to Invokee for their use), which is protected by copyright and other laws respecting proprietary rights. Invokee retains all rights for the material and media, including (without limitation) all copyright and other proprietary rights worldwide in all media. You may not use such material except as expressly permitted under this Agreement and under Canadian copyright laws.
- You are granted a non-exclusive, non-transferable and revocable license to display the ads and marketing tools throughout the Affiliate Site, subject to the terms and conditions of this Agreement and our policies and procedures. You may not alter, change, add to, or otherwise modify any ad tools provided by us. This Agreement does not authorize the use of any Ad tools for any off-line or non-Internet (i.e., print) advertising or in the use of email marketing or other similar solicitations.
- You acknowledge that the information (and the licensed materials contained therein) is highly proprietary in nature and that unauthorized copying, transfer or use may cause Invokee and/or Invokee’s partners irreparable injury that cannot be adequately compensated for by means of monetary damages. You agree that any breach of this provision by you, or any of your subscribers or end-users, may be enforced by Invokee, and/or any of Invokee’s partners, by means of equitable relief (including, but not limited to, injunctive relief) in addition to any other available rights and remedies.
- You agree that any supplier of any portion of the licensed materials may enforce its rights against you, even though that supplier is not a party to the Agreement.
- Affiliates who are duly authorized may access Invokee for individual use, i.e., may use, as intended, banners and marketing material available on Invokee. You may not and may not permit others to: reproduce, publish, distribute, sell, or otherwise access or use any material retrieved from or contained in or on this Site in any manner whatsoever that may infringe any copyright or proprietary interest of Invokee; distribute the information contained in and on our Sites to other users not duly authorized to access the Site; distribute, rent, sublicense, lease, transfer or assign the information or this Agreement; decompile, disassemble, or otherwise reverse-engineer our Sites or information contained in or on same or any software contained therein, or alter, translate, modify, or adapt it to create derivative works. Unauthorized reproduction, transfer, and/or use may be a violation of criminal as well as civil law.
- It is strictly prohibited to promote any Invokee offers through spam, content locking and other deceitful tactics. This includes, but is not restricted to: spam (via email, forums, comments and instant messenger), blind leading, direct-to-form promotion, link code hack and unauthorized landing page alteration. If you are not sure if your promotional tactics go against our TOS, please speak to your affiliate manager.
- It is strictly forbidden to use sub-affiliation on Invokee unless you have a written and signed agreement by an authorized representative of Invokee.
- We reserve the right to terminate or otherwise modify any Referrer accounts that have not generated new hits nor leads for more 90 days or for any reason deemed valuable by Invokee.
- We reserve the right to terminate any account that has been inactive for more 12 consecutive months, all amounts owed will be forfeited upon termination due to inactivity.
- Furthermore, you hereby agree:
- to refrain from purchasing, bidding on, or otherwise obtaining or using keywords incorporating or otherwise based upon the our brands on search engines (e.g., google.com, yahoo.com and bing.com);
- to refrain from purchasing, bidding on, or otherwise obtaining any domain names or URL’s that incorporate or are confusingly similar to any of our trademarks, service marks, or URLs including, but not limited to words or URLs such as “Invokee”, or any other related trademarks, service marks, or URLs as determined by us;
- to not use or place our brands on or with any items that are injurious to end-users or their property, including but not limited to, items that could give rise to a claim for a breach of an express or implied warranty or product liability, or which is scandalous, libelous, obscene, an invasion of privacy or otherwise unlawful or tortious;
- not to use our brands in any manner that is disparaging or that otherwise portrays us or our entities in a negative or misleading light;
- not to create a website or web page that uses our brands in a manner that is likely to be confused (e.g., similar designs, graphics, look and feel) with one or more websites operated by the any and all of our entities;
- not infringe, misappropriate or otherwise violate any copyright, patent, trademark, trade secret or other similar intellectual property right, or otherwise violate or breach any duty toward, or rights of, any person or entity including, without limitation, rights of privacy and publicity;
- not to use, register or file an application to register a trademark, service mark, domain name, user name, account name or other proprietary designation incorporating our brands, or any variation of our brands, whether they are used alone, in part, or in combination with other words (e.g., “invokeeUSA”) or are based upon typographical errors or misspellings (e.g., “invoke”, “invoke”, etc.) (“Prohibited Designation”); and to notify us promptly upon becoming aware of any improper use of our brands and reasonably cooperate with us (at our request) in the protection of our brands. (for a list of our brands and TM please contact your affiliate representative)
5.10 The Parties shall comply with the CAN-SPAM. Violation of the CAN-SPAM ACT may lead to civil and criminal penalties. In case of the infringement of the CAN-SPAM ACT the Agreement will be immediately terminated.
5.11 The Affiliate shall comply with any applicable industry best practices, code of ethics and/or guidelines set forth by relevant authorities, such as consumer and market authorities (including, but not limited to the Canadian Ad Standards, the US Federal Trade Commission (FTC) or any similar authority in all relevant or applicable jurisdictions).
5.12 Both Parties do, and at all times during the term of this Agreement will, operate their business and websites – including without limitation the Invokee’s website and the Affiliate’s websites in strict compliance: (i) with all laws and regulations applicable to their business to the highest legal and ethical standards; and (ii) with all of the rules and regulations issued from time to time by governments, legal entities, credit card organizations and others.
5.13 The Affiliate states that the websites he promotes does not contain any content which depicts or involves (i) child pornography, (ii) any photographs or performances of a sexual nature depicting persons who are less than eighteen (or twenty-one in places where eighteen is not the age of majority) at the time that they render their performances, (iii) use the terms “pre-teen”, “lolita”, “pedo” or “peda”, (iv) any matter that can be freely accessed and viewed by persons under the age of eighteen (or twenty-one in places where eighteen is not the age of majority) and which would constitute harmful matter or an indecent communication if accessed or viewed by such persons, (v) The Affiliate shall not target any person who is under the legal age, nor target any restricted jurisdictions where the products offered and the promotion thereof are illegal; or (v) any message or communication of any kind which is harmful, violent, threatening, abusive or hateful
By accepting the present Agreement the Parties make a mutual confidentiality declaration relating to the conditions and circumstances of the present Agreement to be qualified as business secrets and state that they bear liability for every sanction arising from the infringement of the declaration, this includes, but not limited to, any attempts to reproduce a similar choice of sponsors and products, using the same type of rotation as Invoke:
- Each party shall hold in confidence all confidential information obtained from the other party. Neither party shall disclose any information not of a public nature concerning the business or properties of the other party which it learns as a result of negotiating or implementing this Agreement, this includes individual payout amounts. For purposes of clarity all communications between our staff and you are considered confidential information and are to be held in confidence and will be subject to sanctions provided in this section.
- The obligations of this Section, shall not apply to any information:
- which is generally known to the trade or to the public at the time of such disclosure; or
- which becomes generally known to the trade or the public subsequent to the time of such disclosure; provided, however, that such general knowledge is not the result of a disclosure in violation of this Section; or
- which is obtained by a Party from a source other than the other party, without breach of this Agreement or any other obligation of confidentiality or secrecy owed to such other party or any other person or organization; or
- which is independently conceived and developed by the disclosing party and proven by the disclosing party through tangible evidence not to have been developed as a result of a disclosure of information to the disclosing party, or any other person or organization which has entered into a confidential arrangement with the non-disclosing party.
- A party may disclose Confidential Information received from the other party: to its officers, employees, professional advisers, parent or subsidiary companies, or agents as may be reasonably necessary for the purpose of fulfilling its obligations under this Agreement or, in the case of professional advisors, for use in their professional capacity, provided that before any such disclosure that party shall make such officers, employees, professional advisers, parent or subsidiary companies, or agents or aware of its obligations of confidentiality under this Agreement and shall at all times procure compliance by those persons with them; or where such disclosure is required or requested by any law, court order or competent regulatory authority, including but not limited to any law enforcement agency in all jurisdictions. The above-mentioned discloser will not constitute a breach of this agreement.
7. ACCURACY AND AVAILABILITY OF INFORMATION
The Site contains database information and other content compiled by Invokee. While we use commercially reasonable efforts to provide accurate information, Invokee gives no warranty as to the accuracy of the database and other content on the Site. We reserve the right to withdraw or delete information or content from the Site at any time. All content, software and other services provided at or found within this site by Invokee and/or its partners are provided “as is” and with “all faults”, without warranties of any kind, and we hereby disclaim all warranties, express, implied, or statutory, including without limitation any implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. Specifically, but without limiting the generality of the foregoing, Invokee does not make any warranties regarding the following: (a) Availability of the site at any particular time; (b) Accuracy of the content or how current any content is that is found on the site; (c) Transmissions To, From or Within the site; (d) Functionality; (e) Lack of viruses; (f) Compliance of the software, services and content provided under this agreement with Canadian, Federal or Provincial or international laws; or (g) that the software, content or services contained in the site will meet any particular criteria of performance or quality. (h) you are responsible for the correct spelling of your trackers. We cannot be held liable for any trackers with an incorrect affiliate identification number. Once a tracker is entered, it cannot be reassigned to another affiliate number. We will have no obligation to pay you a commission if you fail to properly indicate your affiliate identification number, including to the extent that such failure may result in any reduction of commission amounts that would otherwise be paid to you under this Agreement. Where use of e-mail marketing is authorized by Invokee the following – Affiliate Code of Conduct shall apply.
8. AFFILIATE E-MAIL CODE OF CONDUCT
9. CONSENT TO ELECTRONIC NOTICES AND OTHER COMMUNICATIONS
9.1 You agree that all of your transactions relating to the Site may, at our option, be conducted electronically, including any that we are otherwise required to provide in “writing”. For example, we may send you notices via postings on the Site or via email to any email address that you provide to us during registration as a Site member. If you do not wish to deal with us electronically, you should not use the Site or enter into this Agreement. Notice will be deemed given 24 hours after the email is sent, unless (for email) we are notified that the email address is invalid. Alternatively, we may give you notice by mail to the address provided during registration. You agree to receiving offers and promotions from us and our partners by e-mails. 9.2 You agree to print or make an electronic copy of this Agreement (and any amendment from time to time) and retain it in your records. You also agree to keep a copy of any other information that we deliver to you in writing.
10. CANADIAN SALES TAXES
If you have provided us with an address outside Canada, we are assuming that you are not a resident of Canada and that you do not have a permanent establishment in Canada, as both of these terms are defined in the Excise Tax Act, and accordingly, no Goods and Services Tax (“GST”) and no Quebec Sales Tax (“QST”) will apply to any charge made under this Program. Additionally, if you are an individual, we are assuming that you are communicating with us from outside Canada. Should our assumptions be inaccurate or should they eventually become inaccurate while you are participating in the Program, you have the obligation to immediately contact us.
Address in Canada / Outside Quebec
If you have provided us with an address in Canada outside the Province of Québec, we are assuming that you are not a resident of Québec and that you do not have a permanent establishment in Québec, as both of these terms are defined in An Act Respecting the Québec Sales Tax, and accordingly, only GST will apply to any charge made under this Program. If any earnings are made as an affiliate and you are registered for the GST, you will need to invoice us for the applicable taxes. Additionally, if you are an individual, we are assuming that you are communicating with us from outside the Province of Québec. Should our assumptions be inaccurate or should they eventually become inaccurate while you are participating in the Program, you have the obligation to immediately contact us.
Address in Canada / In Québec
If you have provided us with an address in Canada and in the Province of Québec, GST and QST will apply to any charge made under this Program.If any earnings are made as an affiliate and you are registered for the GST and QST, you will need to invoice us for the applicable taxes.
11. LIMITATION OF DAMAGES
INVOKEE, AND OUR ENTITIES, THEIR PARENT COMPANIES, SUBSIDIARIES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, DESIGNEES CONTRACTORS, PARTNERS, SUBSIDIARIES, SUCCESSORS AND ASSIGNS SHALL IN NO EVENT BE LIABLE FOR EXEMPLARY, CONSEQUENTIAL, SPECIAL, PUNITIVE OR SIMILAR DAMAGES, INCLUDING WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, LOSS OF BUSINESS, LOSS OF REVENUE, LOSS OF PROFITS, OR LOSS OF DATA ARISING IN CONNECTION WITH THIS AGREEMENT EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, INVOKEE AND OUR ENTITIES, THEIR PARENT COMPANIES, SUBSIDIARIES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, DESIGNEES CONTRACTORS, AFFILIATES, SUBSIDIARIES, SUCCESSORS AND ASSIGNS AGGREGATE LIABILITY ARISING WITH RESPECT TO THIS AGREEMENT WILL NOT EXCEED THE AGGREGATE AMOUNT PAID TO YOU DURING THE PAST SIX (6) MONTHS. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY REGARDLESS WHETHER BASED UPON BREACH OF CONTRACT, NEGLIGENCE, TORT, VIOLATION OF 18 USC SECTION 2257 ET SEQ., ERRORS AND OMISSIONS, COPYRIGHT, TRADEMARK, PATENT, OR ANY OTHER CLAIM OR CAUSE OF ACTION UNDER WHICH SUCH DAMAGES ARE SOUGHT.
You agree to indemnify and hold us harmless, and pay our attorney’s fees and costs, if we become liable for or incur any damages in connection with your breach of this Agreement. You may not settle any dispute without our prior consent, which may only be given in a non-electronic writing signed by an authorized representative of Invoke.
13. APPLICABLE LAW AND DISPUTES
This Agreement is governed by the laws of the province of Quebec, without regard to principles of conflict of laws. To the extent you have in any manner violated or threatened to violate Invokee and/or its Partners’ intellectual property rights, Invokee and/or its Partners may seek injunctive or other appropriate relief in any provincial or federal court in the province of Quebec.
CrakRevenue may change the provisions of this Agreement. When CrakRevenue changes the terms of this Agreement, CrakRevenue will notify you by email or by online postings on this Site. The changes will also appear in this document, which you can access any time. You agree to be bound by the changes when you first subscribed to the site. If you do not agree to be bound by the changes, you should not use the Site again and you should cancel your account. Even if you have not clicked on the “I Agree” button or checked the “I agree” box when subscribing, if you use the Site after you have been notified of a change to this Agreement, you are agreeing to be bound by that change.
15. FORCE MAJEURE
Neither party shall be held responsible for delay or failure in performance hereunder caused by acts of God (or natural disasters), terrorism, strikes, embargoes, fires, war, or other causes beyond the affected party’s reasonable control.
16.1 Invoke may terminate your subscription and/or access, or suspend access to all or part of the Site, without notice, for any conduct that Invoke, in its sole discretion, believes is in violation of this Agreement, any applicable law, or any act which is harmful to the interests of another user, service providers, partners or Invoke. 16.2 Either party may terminate this Agreement at any time, by giving the other party seven (7) days prior written notice of termination. Notice by e-mail is considered sufficient notice to terminate this Agreement 16.3 Upon termination, any and all licenses provided to you under this Agreement shall immediately cease.
This Agreement (including all documents incorporated by reference) is the entire agreement between the parties for its subject matter and supersedes all prior and contemporaneous communications between the parties. No term of this Agreement may be waived unless it is by Invoke in a signed (by an authorized representative of Invoke), non-electronic writing express waiver. If any provision of this Agreement is held to be unenforceable under applicable law, such provision shall be excluded from this Agreement, and the balance of this Agreement shall be interpreted as if such provision was so excluded and shall be enforceable in accordance with its modified terms. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. You agree that no joint venture, partnership, employment or agency relationship exists between you and Invoke or its affiliates as a result of this Agreement or your use of the Site.