Terms and Conditions

1. Recital

  • 1.1 This Affiliate Program Operating Agreement is made and entered into by and between DataOpp sàrl, a company registered in Luxembourg & Wales under number 09061153 and whose registered office address is situated at 9 rue Louvigny - 1946 Luxembourg ("DataOpp"orWe"), and the party applying to become a DataOpp Affiliate ("You"orAffiliate").
  • 1.2 DataOpp and the Affiliate will be designated below as a "Party"and together asParts".
  • 1.3. The terms and conditions set out in this Agreement apply to Your participation with the Affiliate Program.
  • 1.4 In the frame of this Agreement, You acknowledge and agree that DataOpp will act as an intermediary between You and the Advertisers who contacted DataOpp to make their Links available through the Platform. For this reason, DataOpp does not control and is not aware of the contents provided by the Advertiser or the contents to which the Links and/or websites redirect.
  • 1.5. Furthermore, each Offer may have additional terms and conditions on pages within the Affiliate Program and are incorporated as part of this Agreement. By submitting an application or participating in an Offer, You expressly consent to all the terms and conditions of this Agreement.

2. Definitions and interpretation

  • 2.1. Definitions
  • Unless otherwise defined herein, for the purpose of interpreting and performing the Agreement, including its recitals hereinabove, the capitalized terms and expressions hereunder have the meaning ascribed to them as follows:
    • 2.1.1. "Advertiser"means the legal or natural person who entered into an Advertiser agreement with DataOpp.
    • 2.1.2. "Advertising Campaigns"means the service provided by the Affiliate Program including but not limited to, publication of Links on the Websites, Email Campaigns, Native ads, search engine marketing.
    • 2.1.3. "Affiliate"means the legal or natural person who applies to integrate the Affiliation Program and adheres to the terms and conditions set out into this Agreement.
    • 2.1.4. "Affiliate Network Campaigns"means the Campaigns carried out in the frame of the Affiliates' dedicated network.
    • 2.1.5. "Affiliate Program"means the affiliates program provided by DataOpp from its website, accessible by clicking here.
    • 2.1.6. "Agreement"means this Affiliate Program Operating agreement.
    • 2.1.7. "Business Day"means a day other than Saturday, Sunday or any day on which banks are open for business in London, Paris and Barcelona;
    • 2.1.8. "Campaigns"means the Advertising Campaigns.
    • 2.1.9. "Commission"The rate of Commission is commonly determined between DataOpp and the Affiliate.
    • 2.1.10. "Content"means all the contents provided on or linked to Your Website(s).
    • 2.1.11. "Creative"means a graphic file(s), language, text, copy or other creative work created by the Affiliate for use in marketing an Offer.
    • 2.1.12. "Data Controller"means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the processing of personal data.
    • 2.1.13. "Data Subject"means an identifiable natural person who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
    • 2.1.14. "Data Processor"means a natural or legal person, public authority, agency or other body which processes personal data on behalf of the Data Controller.
    • 2.1.15. "Electronic Means of Communication"means any communication made via an electronic equipment for the storage and processing of data which is transmitted, conveyed and received by wire, radio, optical mean or by any other electromagnetic mean, such as, without being exhaustive, e-mails, instant messaging, videoconference, softphone and fax.
    • 2.1.16. "Email Campaigns"means email-based campaigns in which Links are sent to a targeted list of recipients selected and owned by You.
    • 2.1.17. "GDPR" means the General Data Protection Regulation n°2016/679 coming into force on the 25th of May 2018.
    • 2.1.18. "Identification Elements"has the meaning set out under section 4.1.
    • 2.1.19. "Intellectual Property Rights"means all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) rights relating to the ownership of the Platform and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
    • 2.1.20. "Link(s)"means all the graphic and textual links and/or all creative materials redirecting to the Program Website made available by DataOpp to the Affiliate Program through the Platform.
    • 2.1.21. "Media"means the Websites and advertisements owned or controlled by the Affiliate as well as the emails it sends and clearly identified as coming from You.
    • 2.1.22. "Objectionable Content"means any Content which (i) is illegal, (ii) infringes upon the intellectual property or personal rights of any third party and (iii) contains or links 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 DataOpp informs You that it considers objectionable.
    • 2.1.23. "Offer"means any specific offer made by DataOpp within the Affiliates Program to carry out Advertising Campaigns.
    • 2.1.24. "Personal DataData Subject" means any information that relates to an identified or identifiable natural person;
    • 2.1.25. "Platform"means the website from which You can access to Your account and from where You can (i) be aware of all the current Offers, (ii) collect the Links and (iii) get any relevant information and statistics relating to an Offer accessible by clicking here
    • 2.1.26. "Processing"shall be given the same meaning as in the GDPR and, for the avoidance of doubt, hence mean to e.g.: perform an operation or set of operations, whether by automatic means, such as accessing, collecting, recording, registering, organizing, storing, structuring, adapting or altering, deleting, retrieving, consulting, using, disclosing (or otherwise making available) by transmission, dissemination or otherwise, aligning or combining, blocking or destruction of Personal Data.
    • 2.1.27. "Program Website"means the website(s) identified in an Offer that will be promoted through the Links on the Media.
    • 2.1.28. "Qualified Action"means an access to the Program Website, via the Link, where the Link is the last link to the Program Website by an individual person who (i) is not a computer generated user, such as a robot, spider, computer script or other automated, artificial or fraudulent method to appear like an individual, real live person, (ii) is not using pre-populated fields (iii) completes all of the information required for such action within the time period allowed by DataOpp and (iv) is not later determined by DataOpp to be fraudulent, incomplete, unqualified or a duplicate.
    • 2.1.29. "Third Country"means any countries outside of the territory of the member states of the European Union, the European Economic Area or other than the countries which the European Commission has found to guarantee an adequate level of data protection.
    • 2.1.30. "Website"means Your website.
  • 2.2 Interpretation
    • 2.2.1. References to a clause or paragraph are to a clause or paragraph of this Agreement
    • 2.2.2. The headings in this Agreement do not affect its construction or interpretation.
    • 2.2.3. References to a statute or a statutory provision include references to such statute or statutory provision as amended or re-enacted after the date of this Agreement and include all subordinate legislation made under the relevant statute whether before or after the date of this Agreement.
    • 2.2.4. A reference to a document is a reference to that document as amended or modified from time to time in writing by the mutual consent of the Parties.
    • 2.2.5. References to writing will be deemed to include any modes of reproducing words in a legible or non-transitory form.
    • 2.2.6. The singular includes the plural and vice versa and any gender includes any other gender.
    • 2.2.7. Unless otherwise expressly provided, the words "include", "includes" and "including" do not limit the preceding words or terms and shall be deemed to be followed by the words "without limitation".

3. Enrollment in the Affiliate Program

  • 3.1 In order to be enrolled in the Affiliate Program, You shall firstly submit Your application here. Your application shall be accurately completed and regularly updated. In this respect, You shall not use any aliases or other means to mask Your true identity or Your contact information. You are requested to provide us with a copy of your ID if You are a natural person or a copy of Your certificate of registration if You are a company. If you are a natural person, the Processing of Your Personal Data is necessary to take steps to entering to this Agreement.
  • 3.2. To assess Your application to the Affiliates Program, DataOpp will consider Your experience in the affiliation services, Your history as well as the volume of Your business.
  • 3.3 Your application will be reviewed in good faith and objectively. We will notify You of its acceptance or rejection, generally within five (5) business days.
  • 3.4 We may accept or reject Your application at Our sole discretion for any reason whatsoever.
  • 3.5. If We reject Your application, You may reapply to the Affiliate Program at any time. If subsequent to the acceptance of your application, We determine (in our sole discretion) You to be unsuitable for the Affiliate Program, We may immediately terminate this Agreement at any time without previous notice. Only those parties that lawfully can enter into and form contracts under applicable law can participate in the Affiliate Program.

4. Access to the Platform

  • 4.1 If DataOpp accepts Your application, We will grant You an access to Your account on the Platform. For this purpose, You will be provided with an Affiliate ID and a password (the "Identification Elements").
  • 4.2 You acknowledge and agree that these Identification Elements are the exclusive means of access to the Platform. Any act, modification, deletion, measure made in the Affiliate account by using these Identification Elements shall be considered as having been made by the Affiliate himself and is valid. In this respect, DataOpp may use connection logs registered on the Platform to prove the origin of any access and/or modification made to the Affiliate account.
  • 4.3 You are solely responsible for the acts made on the Platform using of the Identification Elements.
  • 4.4 You shall keep the Identification Elements strictly confidential and shall not disclose them to any third party - even temporarily - and in any form.
  • 4.5. In the event of loss, theft or any fraudulent act with regard to the Identification Elements, You shall immediately inform DataOpp by any Electronic Means of Communication of such event and by proving your ID. Upon receipt of Your notification, DataOpp will study Your request and may, for security reasons, temporarily suspend any access to your Affiliate account. Then, DataOpp will send back new Identification Elements by email.
  • 4.6. The Affiliate remains responsible for the use of its account by third parties until the modification by DataOpp of the Identification Elements, thus the Affiliate shall hold DataOpp harmless against any action or claim due to the use of its account and/or the loss of data resulting from the loss or fraudulent use of its Identification Elements. The modification of all or part of the Identification Elements of the Affiliate may result, if necessary, in billing, unless modified at the initiative of DataOpp.

5. Availability of the Platform

  • 5.1. DataOpp cannot guarantee to the Affiliate a continuous and permanent availability of the Platform. DataOpp, however, makes its best efforts to provide the Platform, subject to maintenance periods.
  • 5.2. DataOpp reserves the right to interrupt the Platform for maintenance and / or improvement of the Platform. These interruptions of Platform will, to the extent of the possibilities of DataOpp, be previously notified to the Affiliate. In case of emergency, DataOpp nevertheless reserves the right to suspend the Platform in part or in full for a reasonable period to conduct any technical operation required. These Platform interruptions will not give rise to any compensation in favor of the Affiliate.
  • 5.3 In case of unavailability of the Platform due to technical malfunctions of DataOpp' jurisdiction, DataOpp will do its best efforts to resolve this (these) malfunction(s) as soon as possible after the written notification sent by the Affiliate to DataOpp under the provision that i) the Affiliate most precisely describes the malfunctions noted ii) said malfunctions may be reproducible iii) the Affiliate cooperates fully with DataOpp iv) these malfunctions do not originate from misuse of the Platform by the Affiliate.
  • 5.4. DataOpp shall not be held liable in case of interruption and / or malfunctions of Platform due to (i) the breach or non-compliance of the Affiliate with any of its obligations under this Agreement as well as indications provided by DataOpp, (ii) the malfunction or the inappropriate use of the means of access to the Platform used by the Affiliate and / or the use inappropriate service by the Affiliate (iii) to force majeure events, (iv) events depending on third parties such as, for example, the interruption or malfunctioning of services of telecommunication operators and / or power lines or acts omission or error of the competent authority (v) the improper operation of the terminals or other communication systems used by the Affiliate (vi) by the Affiliate.
  • 5.5. DataOpp shall not be held liable for delays or problems in the delivery of data, data loss, difficulties or impossibilities access, slow connection, or any other technical problem due to circumstances and / or technical intermediaries outside DataOpp. In addition, the Affiliate undertakes to proceed any operation requested by DataOpp as soon as practicable. The Affiliate will be informed in advance in his account. He will also have general information on the DataOpp website and / or in its Affiliate account.

6. Obligations of the Parties

  • 6.1. Subject to our acceptance of You as an Affiliate and Your continued compliance with the terms and conditions of this Agreement, the Parties agree as follows:
  • 6.1.1 We will make available to You, via the Affiliate Program, Links received from the Advertiser that You will be able to collect from the Affiliate Program and advertise (the Advertising Campaigns). The Links will contain a tracking technology. The Data compiled by DataOpp including, but not limited to, numbers and calculations regarding Actions and associated Commissions, will be calculated by DataOpp through the use of industry standard tracking technology and shall be final and binding on You.
  • 6.1.2 We will pay You the Commission under the conditions set out in the article 7.1 below.
  • 6.2 You acknowledge and agree to:
  • 6.2.1. Have sole responsibility for the development, operation, and maintenance of, the Website and all Content on or linked to, Your Media.
  • 6.2.2. Ensure that all materials posted on Your Media or otherwise used regarding the Affiliate Program are not Objectionable Contents.
  • 6.2.3. Not broker or re-distribute any Campaigns and/or Creative Content available on the DataOpp Platform.
  • 6.2.4. Not make any representation, warranty or other statement concerning DataOpp or Advertiser or any of their respective products or services, except as expressly authorized herein.
  • 6.2.5. Ensure that the Links hosted on Your Media redirect to a Program Website adapted to the aimed public and more specifically, that You will not display Links which are not intended to be made available to minors on Media which can likely be visited by child or minors, as defined by the applicable law.
  • 6.2.6. Make sure that Your Media and Creatives does not reproduce, represent, copy or resemble the look and feel of the Program Website or create the impression that Your Media is endorsed by DataOpp or the Advertiser or a part of the Program Website, without prior written permission from DataOpp and/or the Advertiser.
  • 6.2.7. 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.
  • 6.2.8. 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.
  • 6.2.9. Always prominently post and make available to end-users, including prior to the collection of any personally identifiable information, a privacy policy in compliance with all applicable laws that clearly and thoroughly discloses all information collection, use and sharing practices, including providing for the collection of such personally identifiable information in connection with the Affiliate Program and the provision of such personally identifiable information to DataOpp and Advertisers for use as intended by DataOpp and Advertiser.
  • 6.2.10. Always prominently post and make available to end-users any terms and conditions in connection with the Offer set forth by DataOpp or Advertiser, or as required by applicable laws regarding such Offers.
  • 6.3. The following additional program-specific terms shall apply to any promotional programs set forth below:
  • 6.3.1. Email Campaigns. The Affiliate hereby declares and warranties that he has obtained the necessary consent of the Data Subject to be allowed to send them any kind of correspondence within the use of the Affiliate Program. For all email campaigns, Affiliate must download the "Suppression List" from the Offers section of DataOpp. Affiliate shall filter its email list by removing any entries appearing on the Suppression List and will only send emails to the remaining addresses on its email list. DataOpp will provide an opt-out method in all Links, however, if any opt-out requests come directly to Affiliate, Affiliate shall immediately forward them to DataOpp at [email protected]. Affiliate's emails containing the Links may not include any content other than the Links, except as required by applicable law. Affiliate agrees that failure to download the Suppression List and remove all emails from the database before mailing may result in Commission withholdings, removal or suspension from all or part of the Affiliate Program, possible legal action and any other rights or remedies available to DataOpp pursuant to this Agreement or otherwise. For this reason, Affiliate shall connect frequently to the Platform and verify regularly if the Suppression List has been updated. Affiliate further agrees that it will not mail or market to any suppression files generated through the DataOpp network, and that doing so may result in Commission withholdings, removal or suspension from the Affiliate Program, possible legal action and any other rights or remedies available to DataOpp pursuant to this Agreement or otherwise.
  • 6.3.2. Advertising Campaigns. No Links can appear to be associated with or be positioned on chat rooms or bulletin boards unless otherwise agreed by DataOpp in writing. Any pop-ups/unders used for the Affiliate Program shall be clearly identified as Affiliate served in the title bar of the window and any clientside 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.
  • 6.3.3. Reporting. Affiliate will provide DataOpp with a reporting of each Campaign containing at least all the elements proving the compliance of the Campaigns with the applicable law such as - without being exhaustive - the address of the recipient, the email address of return, the unsubscription link of to the distribution list and any relevant element required by the applicable data protection regulation. For the Email Campaigns, the said emails shall contain all the compulsory elements including the opt-out option provided in the Links, the identity of the Advertiser and the promotional nature of the advertisement. As regards the Advertising Campaigns, the Affiliate shall report to DataOpp all the conditions in which the Program Website has been promoted on its Website and Media (position of the ads, purpose of the Website or Media...).
  • 6.3.4. Affiliate Network Campaigns. For all Affiliates 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's Network (each a "Third Party Affiliate"). Affiliate agrees that it will expressly forbid any 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 Web site or business model involves content containing Objectionable Content. All Third-Party Affiliates must be in good standing with 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 and sign a Data Sub-Processing Agreement if necessary. Affiliate shall promptly terminate any Third-Party Affiliate who takes, or could reasonably be expected to take, any action that violates the terms and conditions of this Agreement. In the event that either Party suspects any wrongdoing by a Third-Party Affiliate with respect to the Links, Affiliate shall promptly disclose to DataOpp the identity and contact information for such Third-Party Affiliate. Affiliate shall promptly remove any Third-Party Affiliate from the Affiliate Program and terminate their access to future Offers of DataOpp in the Network upon written notice from DataOpp. Unless DataOpp has been provided with all truthful and complete contact information for a Third-Party Affiliate and such Third-Party Affiliate has affirmatively accepted this Agreement as recorded by DataOpp, Affiliate shall remain liable for all acts or omissions of any Third-Party Affiliate.

7. Financial terms

  • 7.1. Conditions of payment of the Commission
    • 7.1.1. The minimum threshold for the monthly Commissions 's payment is five hundred (500) euros/dollar per currency. Accounts with a balance of less than five hundred (500) €/$ will roll over to the next month, and will continue to roll over monthly until five hundred (500)€/$ is reached. We reserve the right to charge back to Your account any previously paid Qualified Actions that are later determined to have not met the requirements to be a Qualified Action.
    • 7.1.2. The Commission is calculated by DataOpp through the use of industry standard tracking technology in consideration of the number of Qualified Actions which can be (i) a subscription to the Program Website or (ii) an impression or (iii) a redirection to the Program Website through the Links, as defined by the Advertiser. The Commission determined by DataOpp shall be final and binding on You.
    • 7.1.3. Payment for Commissions is dependent upon Advertiser providing such funds to DataOpp, and therefore, You agree that DataOpp shall only be liable to You for Commissions to the extent that DataOpp has received such funds from the Advertiser. You hereby release DataOpp from any claim for Commissions if DataOpp has not received such funds from the Advertiser.
    • 7.1.4. Depending on the agreed Payment Term , DataOpp will pay the Commission as follows:
      • - Weekly: within four (4) days following the date of the invoice
      • - Bi-Monthly: within four (4) days following the date of the invoice
      • - Monthly: within twenty (20) days following the date of the invoice
    • 7.1.5. within a period between four (4) and twenty (20) days following the end of the invoiced month, as set out in the related invoice.
    • 7.1.6 If the Affiliate has an outstanding balance due to DataOpp under this Agreement or any other agreement between the Affiliate and DataOpp, whether or not related to the Affiliate Program, Affiliate agrees that DataOpp may offset any such amounts due to DataOpp from amounts payable to Affiliate under this Agreement.
    • 7.1.7 DataOpp may, in its sole discretion, before the 15th of the following months, make any claim and reject any fraudulent, cancelled, charged back or otherwise nullified leads. DataOpp has no obligations whatsoever to provide any fraud reports to the Affiliate.
    • 7.1.8. The Affiliate is responsible for any and all charges and fees with regards to the payment.
    • 7.1.9. The Affiliate shall be responsible for paying taxes on their Commission under the laws applicable to them.
    • 7.1.10. The Affiliates will bear all the costs, fees and chargebacks resulting from fraud, payment renouncement and/or request for reimbursement from the Program Website's end-users.
  • 7.2. Disputes
    • 7.2.1. DataOpp shall automatically generate an invoice on behalf of Affiliate for all Commissions payable under this Agreement and shall remit payment to Affiliate based upon that invoice. All tracking of Links and determinations of Qualified Actions and Commissions shall be made by DataOpp in its sole discretion. In the event that Affiliate disputes in good faith any portion of an invoice, Affiliate must submit that dispute to DataOpp 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.
    • 7.2.2 In the event that Affiliate is also tracking Qualified Actions and Affiliate claims a discrepancy, Affiliate must provide DataOpp with Affiliate's reports within three (3) days after 30th day of the calendar month, and if DataOpp's and Affiliate's reported statistics vary by more than ten (10) percent and DataOpp reasonably determines that Affiliate has used generally accepted industry methods to track Qualified Actions, then DataOpp and Affiliate agree to make a good faith effort to arrive at a reconciliation. If the Parties are unable to arrive at a reconciliation, then DataOpp's numbers shall prevail.

8. Protection of Personal Data

  • 8.1. In the frame of the provision of the Affiliate Program, the Parties intend to Process Personal Data under the conditions identified by the GDPR.
  • 8.2. As sub processor of the Advertiser, DataOpp will make the Affiliate bear the same obligations the Advertiser imposes on DataOpp and set forth below.
  • 8.3 Where DataOpp implements additional information or data in the Links entailing a collection of additional Personal Data or use the Personal Data collected by the Advertiser for its own purpose, it will act as Data Controller and will impose the obligations as set forth below to the Affiliates.
  • 8.4. As a result, the Affiliate shall Process the Personal Data according to the sole instructions of the Advertiser and pursuant to the means and purposes determined by this latter.
  • 8.5. The Affiliate shall notify DataOpp of any instruction it considers to be illicit or contrary to the regulation applicable to the Processing of Personal Data.
  • 8.6. Both Parties shall comply with the GDPR and other applicable European and National laws regarding data protection and Processing of Personal Data.
  • 8.7. The Affiliate undertakes to implement the adequate technical and organizational security measures to protect the Personal Data collected and Processed on behalf of the Advertiser, in the frame of the Affiliate Program, against fraudulent, abusive, unauthorized or unlawful use or destruction and shall provide proof of the measures, when required.
  • 8.8. The Affiliate guarantees to keep a full list of all employees, affiliates, subcontractors, agents or any other persons who play a role in the collection, Processing or can access by any means to the Personal Data and shall provide such list to DataOpp upon first request.
  • 8.9. The Affiliate shall not transfer the Personal Data Processed on behalf of DataOpp or of third parties within the framework of a contractual relationship with DataOpp to any Third Countries, unless otherwise expressly agreed. However, the Affiliate shall be entitled to transfer Personal Data to any Third Country if the Advertiser obtains the prior written consent of the Data Subject and the Affiliate adopts appropriate safeguards approved by the Commission except if such transfer fulfils the conditions of derogation set out in the article 49 of the GDPR.
  • 8.10. The Affiliate shall deliver to DataOpp the contact details of its Data Protection Officer (DPO) or any staff member with that role if one has been appointed. The Affiliate undertakes to provide any information and to collaborate with DataOpp whenever requested.
  • 8.11. The Affiliate shall obtain the necessary consent of the Data Subject prior to the collection of any Personal Data, including a clear and unambiguous method of withdrawal of consent and should be able to demonstrate this consent to DataOpp whenever requested.
  • 8.12. The Affiliate guarantees to provide Data Subject with a privacy policy to the Data Subject whenever it collects and Processes Personal Data. This privacy policy shall be always available at any time for the Data Subject. Without the consent and acceptance of the Affiliate's privacy policy by the Data Subject, the Affiliate shall not collect and/or Process any kind of his/her Personal Data.
  • 8.13. The Affiliate undertakes to take the necessary and appropriate measures in case of a breach of Personal Data and shall inform DataOpp without undue delay and not later than a period of twenty four (24) hours from the time it had been aware of, detail the nature and extent of this violation, its impact for the Data Subject and shall take all the appropriate measures to avoid such breach in the future.
  • 8.14. The Affiliate shall have the means and shall provide DataOpp - within a maximum period of five (5) calendar days - with all necessary information, assistance and cooperation to allow DataOpp to respond to reasonable requests from the Data Subject who wants to exercise its rights granted by GDPR.
  • 8.15. DataOpp shall have the right to conduct an audit of the Affiliate's Processing of the Advertiser's Personal Data (exercisable by giving prior written notice to the Affiliate, such notice shall be given at least ten (10) calendar days in advance). For this purpose, the Affiliate will keep any documentation proving its compliance to the GDPR available to DataOpp at any time. Note that, this limitation is not applicable in case of an audit by any applicable regulatory authority. The audit shall be performed during normal working days and business hours.
  • 8.16. Affiliate shall provide all commercially reasonable cooperation to assist DataOpp to comply to any request of information or audit carried out by a competent public authority and to realise any impact risk assessment.
  • 8.17. If relevant, the Affiliate shall comply with any applicable code of conduct or source of soft law as set out in the articles 40 and following of the GDPR.
  • 8.18. DataOpp is, in addition to compensation for breach of the obligations that may follow from this clause, entitled to compensation for damages from the Affiliate, including amounts that shall be paid as damages or sanctions according to the GDPR and other applicable law, if the Processing of Personal Data that forms the basis of the damages has been performed by or by means of the Affiliate contrary to this clause or Advertiser's instructions.

9. Confidentiality

  • 9.1. Except as otherwise provided in this Agreement or with the consent of DataOpp, You agree that all information, including, without limitation, the terms of this Agreement, business and financial information, customer and vendor 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.
  • 9.2. 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.
  • 9.3. This non-competition clause shall be valid for the whole term of this Agreement.

10. Limited License & Intellectual Property

  • 10.1 We grant You a nonexclusive, non-transferable, revocable limited license to access and use the Platform and the Links solely in accordance with the terms of this Agreement, for the sole purpose of identifying You as a participant in the Affiliate Program and assisting in increasing sales through the Program Website.
  • 10.2 You may not alter, modify, manipulate or create derivative works of the Links or any DataOpp graphics, creative, copy or other materials owned by, or licensed to, DataOpp 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.
  • 10.3 You are also granted a right to use the content provided by the Advertiser for the purpose of the Campaigns. In this respect, You shall not alter, modify or otherwise change these contents, or any other Advertisers feature, in any manner whatsoever, without obtaining Advertiser's prior express written consent.
  • 10.4. The rights set out under sections 10.1 and 10.2 are granted for the term of this Agreement and worldwide. 10.5. Except as expressly stated herein, nothing in this Agreement is intended to grant You any rights to any of DataOpp's trademarks, service marks, copyrights, databases, patents or trade secrets. You agree that DataOpp may use any suggestion, comment or recommendation You choose to provide to DataOpp without compensation. All rights not expressly granted in this Agreement are reserved by DataOpp.

11. Termination

  • 11.1. This Agreement shall commence on the date of our approval of Your Affiliate Program application and shall continue thereafter until terminated as provided herein.
  • 11.2 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.
  • 11.3 We may terminate Your 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.
  • 11.4. 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 DataOpp or Advertiser intellectual property, and will cease representing Yourself as a DataOpp or Advertiser 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.

12. Remedies

  • 12.1 In addition to any other rights and remedies available to Us under this Agreement DataOpp 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) DataOpp determines that You have violated this Agreement, (ii) DataOpp receives any complaint about Your participation in the Affiliate Program which DataOpp 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.
  • 12.2. 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, DataOpp 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.

13. Compliance with Laws

  • 13.1. As a condition to your enrollment and participation in the Affiliate Program, You agree that while You are an Affiliate, You will comply with all laws (including the CAP Code and, the Consumer Protection from Unfair Trading Regulations 2008, the Directive 2011/83/CE on Consumer Rights, the UK Consumer Contracts Regulations 2013, the data protection regulation), ordinances, rules, regulations, orders, licenses, permits, judgments, decisions or other requirements of any governmental authority that has jurisdiction over you, whether those laws, etc., are now in effect or later come into effect during the time you are an Affiliate to the Affiliate Program as well as any relevant guideline, code of conduct or source of soft law applicable to You and Your activities. are now in effect or later come into effect during the time you are an Affiliate to the Affiliate Program as well as any relevant guideline, code of conduct or source of soft law applicable to You and Your activities.

14. Fraud

  • 14.1 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.
  • 14.2. 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, using stealware, cookie-stuffing and other deceptive acts or click-fraud. DataOpp shall make all determinations about fraudulent activity in its sole discretion.

15. Representations and Warranties

  • 15.1 You hereby represent and warrant that:
    • 15.1.1. 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;
    • 15.1.2. You are fully and solely liable for the compliance the means You use to broadcast and/or display the Links on the Media and all the means and processes implemented to do so to all the applicable laws, regulations, codes of practice and guidance;
    • 15.1.3 You are fully and solely liable for any of Your Creative meaning any information, products, materials, elements, artwork, creations, drafts and all other content included in but not limited to any Ads, Landing Pages, Website and Email creative.
    • 15.1.4 You hold harmless DataOpp and/or the Advertiser in case of any claim, action, recourse and/or legal proceeding brought by any third party resulting from Your infringement of a provision of the articles 6.3, 9, 10, 13 and 14 above;
    • 15.1.5. More generally, You will be held liable for any action, omission or negligence made through Your account regardless of the person who commits such mistake.
  • 15.2. DataOpp shall not be held liable of the Links provided by the Advertiser as these Links are their property of the Advertiser. Therefore, You will not initiate any recourse, complaint or any legal action whatsoever against DataOpp for the non-compliance of the Links to any law or regulation whatsoever.
  • 15.3. Subject to the other terms and conditions of this Agreement, DataOpp represents and warrants that it shall not knowingly violate any law, rule or regulation which is applicable to DataOpp' own business operations or DataOpp' proprietary products or services;

16. Anti-Spam Policy

  • 16.1 You must strictly comply with the Privacy and Electronic Communications (EC Directive) Regulations 2003 (the "PECR") and any further applicable regulation about commercial solicitation. All emails sent in connection with the Affiliate Program must include the appropriate party's opt-out link.
  • 16.2. From time to time, We may request - prior to Your sending emails containing linking or referencing the Affiliate Program that You submit the final version of Your email to DataOpp for approval by sending it to Your DataOpp representative and upon receiving written approval from DataOpp of Your email the email may be transmitted to third parties. 16.3 It is solely Your obligation to ensure that the email complies with the PECR. You agree not to rely upon DataOpp's approval of Your email for compliance with the Act, or assert any claim that You are in compliance with the PECR based upon DataOpp's approval.

17. Mutual Indemnification

  • 17.1. Affiliate hereby agrees to indemnify, defend and hold harmless DataOpp and the Advertisers and their respective subsidiaries, affiliates, partners and licensors, directors, officers, employees, owners and agents against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' fees and costs) based on (i) any failure or breach of this Agreement, including any representation, warranty, covenant, restriction or obligation made by Affiliate herein, (ii) any misuse by Affiliate, or by a party under the reasonable control of Affiliate or obtaining access through Affiliate, of the Links, Offers or DataOpp or Advertiser intellectual property, or (iii) any claim related to Your Media, including but not limited to, the content contained on such Media (except for the Links).
  • 17.2. DataOpp hereby agrees to indemnify, defend and hold harmless Affiliate and its subsidiaries, affiliates, partners, and their respective directors, officers, employees, owners and agents against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' fees and costs) based on a claim that DataOpp is not authorized to provide You with the Links.

18. Limitation of Liability

  • 18.1. 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, DataOpp expressly disclaims all warranties, express, implied or statutory, including but not limited to the implied warranties of reasonable care, fitness for a particular purpose, and time for performance, and any warranties arising out of course of dealing, usage, or trade. DataOpp 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.
  • 18.2. DataOpp expressly disclaims any liability for any act or omission of an Advertiser on their products, services and/or more generally on any content of their ads.
  • 18.3 In no event shall DataOpp be liable for any of Your Creative meaning any information, products, materials, elements, artwork, creations, drafts and all other content included in but not limited to any Ads, Landing Pages, Website and Email creative.
  • 18.4. DataOpp does not guarantee that Affiliate will earn any specific amount of Commissions.
  • 18.5. As transparent intermediary, DataOpp shall not be held liable for the content of any Offer, Link, Media, Program Website owned by an Advertiser as well as in Your Website, in any manner whatsoever.
  • 18.6. Therefore, You will indemnify and hold DataOpp harmless for all damages, fees and costs resulting from any claim and/or action brought by any third-party due to (a) a content of Your Website or Media; (b) any unlawful Links or any mistake made by the Advertiser in the transmission of the Links or (c) from Your misuse of the said Links.
  • 18.7. In no event shall DataOpp be liable for any unavailability or inoperability of the Links, Program Website, technical malfunction, computer error, corruption or loss of information, or other injury, damage or disruption of any kind beyond the reasonable control of DataOpp. In no event will DataOpp be liable for any indirect, incidental, consequential, personal injury / wrongful death, special or exemplary damages, including but not limited to, loss of profits or loss of business opportunity, even if such damages are foreseeable and if DataOpp has been advised of the possibility thereof.
  • 18.8. DataOpp's cumulative liability to Affiliate, from all causes of action and all theories of liability, will be limited to and will not exceed the amounts paid to Affiliate by DataOpp in Commissions during the six (6) months immediately prior to such claim.
  • 18.9. Provided that nothing in this Agreement shall exclude or limit the liability of DataOpp or any of its employees, agents or sub-contractors for death or personal injury resulting from their own negligence, or for fraud or fraudulent misrepresentation.

19. Independent Investigation

  • 19.1. 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.

20. Communications between Parties

  • 20.1. It is understood that the nature of the Agreement implies constant and regular communications between Parties.
  • 20.2. The Parties agree that most of the communications between them until the term or termination of the Agreement will be made via Electronic Means of Communication. Therefore, the Parties cannot renounce to use Electronic Means of Communication and/or require the sole use of another one. 20.3. Any writing sent by a Party to the other one via Electronic Means of Communication constitutes an original document between the Parties. The elements, such as the time of receipt or issuance, and the quality of data received shall be considered as priority proof such as authenticated by DataOpp computerized procedures, unless written proof to the contrary is provided by the Affiliate. The level of proof of the information issued by email or via any online discussion tool (i.e: Skype) is that granted to an original and signed handwritten hardcopy.
  • 20.4. To the extent permitted by the applicable law, the Parties acknowledge and agree that in case of dispute regarding the content of the oral exchanges made by an Electronic Mean of Communication between them, DataOpp's version will prevail upon Affiliate's one unless this latter provides any evidence proving the contrary.

21. Changes

  • 21.1 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 ten (10) business days after such notice. If the modifications are unacceptable to You may terminate this Agreement without penalty solely on the account of such termination within such ten (10) business day period. Your continued participation in this Affiliate Program ten (10) business days after a change notice has been posted will constitute Your acceptance of such change.
  • 21.2 In addition, DataOpp 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 DataOpp to remove, alter or modify any Link, graphic or banner ad that is being used by Affiliate as part of the Affiliate Program.

22. Miscellaneous

  • 22.1. Expenses and legal fees. Affiliate shall be responsible for the payment of all legal fees and expenses incurred by DataOpp to enforce the terms of this Agreement.
  • 22.2. Entire Agreement. This Agreement contains the entire agreement between DataOpp and Affiliate with respect to the subject matter hereof and supersedes all prior and/or contemporaneous agreements or understandings, written or oral. Affiliate agrees that DataOpp shall not be subject to or bound by any Affiliate insertion order or online terms and conditions that amend, conflict with or supplement this Agreement, regardless of whether DataOpp "clicks through" or otherwise indicates its acceptance thereof. Affiliate may not assign all or any part of this Agreement without DataOpp' prior written consent. DataOpp may assign this Agreement at any time with notice to Affiliate. This Agreement will be binding on and will inure to the benefit of the legal representatives, successors and valid assigns of the Parties hereto. The provisions of Section 9,11.4, 22.2, 22.6 and 22.10 and any accrued payment obligations shall survive the termination of this Agreement.
  • 22.3. Proof: The Parties acknowledge and agree that the exchanges made by email constitute original documents between the Parties and shall be considered as proof, unless written proof is provided to the contrary. The elements, such as the time of receipt or issuance, and the quality of data received shall be considered as priority proof such as authenticated by DataOpp computerized procedures, unless written proof to the contrary is provided by the Affiliate. The level of proof of the information issued by email is that granted to an original and signed handwritten hardcopy.
  • 22.4. Amendments. Except as set forth in the "Modifications" section above, this Agreement may not be modified without the prior written consent of both Parties.
  • 22.5. Invalidity. If any provision of this Agreement is held to be void, invalid or inoperative, the remaining provisions of this Agreement shall continue in effect and the invalid portion of any provision shall be deemed modified to the least degree necessary to remedy such invalidity while retaining the original intent of the Parties.
  • 22.6. Relationship between the Parties. Each Party to this Agreement is an independent contractor in relation to the other Party with respect to all matters arising under this Agreement. Nothing herein shall be deemed to establish a partnership, joint venture, association or employment relationship between the Parties. No course of dealing nor any delay in exercising any rights hereunder shall operate as a waiver of any such rights. No waiver of any default or breach shall be deemed a continuing waiver or a waiver of any other breach or default.
  • 22.7. Declaration of the Affiliate. By submitting and application to Affiliate Program, You affirm and acknowledge that You have read this Agreement in its entirety and agree to be bound by all of its terms and conditions. If You do not wish to be bound by this Agreement, You should not submit an application to Affiliate Program. If an individual is accessing this Agreement on behalf of a business entity, by doing so, such individual represents that they have the legal capacity and authority to bind such business entity to this Agreement.
  • 22.8. Non-Waiver/Severability. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving Party. If any provision contained in the Agreement is determined to be invalid, illegal or unenforceable in any respect under any applicable law, then such provision will be severed and replaced with a new provision that most closely reflects the real intention of the Parties, and the remaining provisions of the Agreement will remain in full force and effect.
  • 22.9. Assignment. Neither Party may assign, transfer or delegate any of its rights or obligations under the Agreement without the prior written consent of the other Party, and any attempts to do so shall be null and void; provided, however, that either Party may assign the Agreement or any portion hereof/thereof, to: (a) an acquirer of all or substantially all of such Party's equity, business or assets; (b) a successor in interest whether by merger, reorganization or otherwise; or (c) any entity controlling or under common control with such Party.
  • 22.10. Third party Rights. Nothing in this Agreement is expressly or impliedly intended to confer on any third party any right to enforce any of its provisions pursuant to the Contracts (Rights of Third Parties) Act 1999.
  • 22.11. Notification. Any notice given under this Agreement shall be in writing and delivered or mailed to the addresses of the Parties given above or to any other address notified. Notices shall be considered given: (a) where sent by hand or courier, upon receipt; (b) where sent by certified mail, return receipt requested, on the second working day following the date of mailing; (c) where sent by fax (subject to retention by the sending Party of confirmation of successful transmission), 4 hours after the time of successful transmission; and (d) by email, upon confirmation of the email by the other Party.
  • 22.12. Applicable Law / Jurisdiction. The interpretation, construction and effect of this Agreement shall be construed in all respects in accordance with the law of England and Wales and the Parties agree to submit to the nonexclusive jurisdiction of the courts of England. If any suit, action or other legal proceeding shall be instituted against either Party relating to the Agreement, each hereby submits to the exclusive jurisdiction of the English courts, and further agrees to comply with all the requirements necessary to give such court jurisdiction. The Parties shall use commercially reasonable efforts to resolve disputes.

This Agreement was last revised in November 2020