ModeSens Contributor Platform
Terms of Service
General
1.1 These Terms of Service, together with the Influencer Privacy Policy (which may be accessed here) and Program Policies (which may be accessed here) (together the “Terms of Use”) set out the terms and conditions on which ModeSens Inc. provides the Service to Publishers.
1.2 By using Influencer, you confirm that either:
(a) you are a Publisher intending to enter into the Agreement with Influencer in a personal capacity, and that you agree to comply with the Terms of Use; or
(b) you are an employee, agent or subcontractor of a Publisher who has been given the necessary authorisations by the Publisher to login to Influencer, to agree to comply with the Terms of Use and to enter into the Agreement with Influencer, in each case on behalf of the Publisher.
If you are unable to provide one of the above confirmations, you must not tick the “I agree to the Terms of Service” box, or otherwise use or access the Influencer.
Definitions
2.1 In these Terms of Service, the following expressions have the following meanings:
“Influencer” all related services and tools provided by ModeSens Inc. and ModeSens open to Publisher defined later.
“Advertiser” an entity purchasing advertising or marketing services from Influencer directly or through an agent.
“Affiliate Network” an entity providing an affiliate marketing service on behalf of multiple Merchants.
“Agreement” the agreement between Influencer and the Publisher which (i) is created on acceptance by Influencer of the Publisher’s application in accordance with clause 3.1 and (ii) incorporates the Terms of Use.
“Dashboard” means the Influencer Dashboard where Publishers earn revenues and gain insights from the use of Dashbaord Segments.
“LinkBuilder” means the Influencer Linkbuilder where Publishers earn transform a link into format that can track commission for Publishers.
“Core Tools” means (i) Influencer Plugin and (ii) API, either of which Publishers can use to affiliate Merchant links with the purpose of earning Publisher Revenue and obtaining insights via the Dashbaord.
“Merchant” a supplier of goods and/or services which is included in the list of Merchants on the Dashboard at the time of the relevant Sale.
“Privacy Policy” Influencer’ privacy policy, the current version of which may be accessed here.
“Program Policies” a group of policies which set limits on the use of the Service, and can be accessed here.
“Publisher” a person or other entity who is entitled to access and use the Service under the terms of an Agreement.
“Publisher Revenue” the Publisher’s share of the Total Revenue, as determined in accordance with clause 6.
“Sale” following a referral of a User from the Publisher’s website to a Merchant’s website, a supply of goods and/or services by such Merchant to such User during the cookie life-time (as prescribed by such Merchant).
“Service” means access to and use of (i) the Dashboard, and (ii) the Tools.
“Tools” means the Core Tools or, as the context requires, some of them.
“Total Revenue” a payment made by a Merchant, Affiliate Network or Advertiser to Influencer.
“Usage Data” information collected or created by the use of the Service.
“User” a user of the Publisher’s website(s) that is referred to a Merchant via the Service and/or interacts with the Merchant by purchasing goods and/or services or providing the Merchants with some other benefit (including, but not limited to, registering with the Merchant’s website or subscribing to a newsletter).
The Service
3.1 Influencer may approve or reject an application to register for the Service at its entire discretion. If Influencer decides to reject an application, it is not obliged to provide the Publisher with its reasons for doing so. If Influencer approves an application, it will notify the Publisher by email, and the Publisher will then be able to access and use the Service.
3.2 The Publisher acknowledges and agrees that its registration for the Service is specific to the website or websites set out in the Publisher’s application, and that it may not use the Service in relation to any website other than those for which it has Influencer’ prior permission.
3.3 If the Publisher wishes to use the Service in relation to any additional or alternative website(s) then the Publisher may request (via the Publisher Hub) that such website(s) are added to its registration (an “Additional Domain Request”). Influencer may approve or reject each Additional Domain Request at its entire discretion. If Influencer decides to reject an Additional Domain Request, it is not obliged to provide the Publisher with its reasons for doing so. If Influencer approves an Additional Domain Request, it will notify the Publisher by email, and the Publisher will then be able to access and use the Service in relation to such additional or alternative website(s).
Merchants
4.1 The Publisher acknowledges and agrees that:
4.1.1 Influencer may from time to time, and with immediate effect, integrate or exclude any Merchants into the Service. The Service will affiliate any existing, unaffiliated Merchant links (added by the Publisher or in user-generated content) found on the Publisher’s website(s), unless the Publisher uses the Network Override or excludes a link from the Service or from its own website;
4.1.2 Merchants may from time to time, and with immediate effect, vary commission rates and the way in which Total Revenue is calculated;
4.1.3 Merchants may from time to time, and with immediate effect, terminate their involvement in the Service, either across all publishers, or in relation to specific publishers that they deem do not meet their terms of use, policies and standards;
4.1.4 changes pursuant to clauses 4.1.1, 4.1.2 or 4.1.3 will only be notified to the Publisher by way of updates to the Publisher Hub, and it is the Publisher’s responsibility to check the Publisher Hub to ensure that the Publisher is up to date with such changes; and
4.1.5 a Merchant may at any time send Influencer a notice requesting that the Publisher remove links or references to the Merchant’s brands, products, or trademarks. Influencer will communicate this notice to the Publisher, and the Publisher agrees to remove such links or references as soon as reasonably practicable (and in any event within five (5) working days of receiving the notice from Influencer).
Use of Core Tools
5.1 In order to use the Tools, the Publisher:
5.1.1 must be registered and approved for the Service pursuant to clause 3, and have the Core Tools activated on a website that has been approved by Influencer and with which it intends to use the Tools;
5.1.2 must, in the case of the APIs, use the unique API key granted to Publishers who use these APIs;
5.1.3 must not sell, transfer, sublicense or otherwise disclose its login or API key;
5.1.4 must not exceed the limits set by the Program Policies. The number and size of API requests made to the APIs is expected to reflect the revenue generated via the Service. Notwithstanding the foregoing, if Influencer considers that the Publisher’s use of the Tools is excessive or fraudulent, or bypasses (or attempts to bypass) monetization with the Service, then such use will constitute a breach of this Agreement for the purposes of clause 11.1.
5.2 In order to use any Tools, the Publisher:
5.2.1 acknowledges that use of any other, third party affiliate marketing link affiliatization service directly alongside the Service may interfere with the correct operation of the Service, including the calculation of Total Revenues;
5.2.2 must comply with Influencer’ Program Policies (as amended by Influencer from time to time), the current version of which may be accessed here.
5.2.3 acknowledges that Influencer reserves the right to monitor the Publisher’s use of the Tools to ensure they are being used by the Publisher in accordance with the Terms of Use. Whether the Publisher’s use of the Tools is in accordance with the Terms of Use shall be determined by Influencer in its sole discretion.
5.3 The use of Audiences is subject to the following additional terms; the Publisher will receive remuneration as set out in Clause 6.
5.4 Notwithstanding any other term or condition set out in the Terms of Use, Influencer reserves the right at any time in its sole discretion, without notice or liability to the Publisher: (i) to refuse to permit the Publisher to use the Tools; and (ii) to amend the measures taken to protect against inappropriate use of the Service.
Revenue
6.1 Influencer and the Publisher shall share Total Revenue generated from the use of the Tools and actually received from a Merchant, an Affiliate Network and/or an Advertiser (less any Chargebacks made in accordance with clause 8) as follows:
6.1.1 Tools shall be 70% to the Publisher by default. Influencer can adjust this number based on publisher’s performance. When adjust, Publisher will receive an notice in email.
6.2 The calculation of Total Revenue for Tools shall be performed by the relevant Merchant or Affiliate Network, and communicated to Influencer. The Publisher acknowledges that:
6.2.1 different Merchants use different Total Revenue structures, which may include (without limitation) using fixed amounts per Sale or referral, percentage based methods;
6.2.2 Merchants may refuse to pay Total Revenue on a number of grounds (including, without limitation, as a result of fraud, search keyword bidding, and tracking errors), and that the Publisher has no right to appeal or otherwise challenge a Merchant’s decision to refuse to pay Total Revenue;
6.2.3 a sale of goods and/or services by a Merchant can be overwritten through external traffic made more recently than the Contributor’s referral including but not limited to external link, email link and push notification; new Contributor’s links will be locked for 30 days and overwrite rules will not apply; and
6.2.4 where Merchants participate in more than one affiliate program and both or all affiliate programs are with Affiliate Networks participating in the Service, Influencer in its sole discretion shall attribute the Total Revenue either to the Affiliate Network offering the best commercial return or the program from the best performing Affiliate Network.
6.3 The calculation of Total Revenue and Publisher Revenue for Audiences shall be performed by Influencer. The Publisher acknowledges that:
6.3.1 Total Revenue shall be calculated based on payments collected from Advertisers, less deductions for fees and charges levied by third parties (including but not limited to Data Management Platforms and audience syndication platforms); and
6.3.2 Publisher Revenue is calculated using a distribution algorithm which assigns revenue based on the relative contribution. The share defined in 6.1 shall then apply.
6.4 Influencer shall collect, calculate, and aggregate the Publisher Revenue for all Tools, and display in reports accessible via the Dashboard.
Payment Terms
7.1 Platform will pay the Contributor the Contributor Revenue for a given month, minus any Chargebacks made in accordance with clause 8 and any pending payments from Merchants and/or Affiliate Networks:
7.1.1 in the case of all Tools, no later than 92 days after the end of that month; or
7.1.2 in the case of Audiences, no later than the end of the month following the month in which Influencer receives payment from the Advertiser.
7.2 If the amount of the Publisher Revenue is less than $10 in any month (the “Minimum Threshold”), any such amount will be carried over and paid when the cumulative amount due for payment to the Publisher exceeds the Minimum Threshold.
7.3 Payments will be made in accordance with the payment method selected by the Publisher in the Publisher Hub. While Influencer is responsible for the cost of making payments, the Publisher is solely responsible for any fees charged by the Publisher’s bank or other provider for receiving funds.
Chargebacks
8.1 A Merchant may require Influencer (either directly or via an Affiliate Network) to reverse the Total Revenue paid in respect of a Sale (a “Chargeback”) in certain circumstances, including (but not limited) to the following:
the Sale was not a bona fide transaction
the relevant goods sold are returned by the User
it is discovered that the transaction was fraudulent.
8.2 In the event of a Chargeback, the Publisher’s sales figure available on the Publisher Hub will be reduced accordingly. The Publisher acknowledges and accepts that information regarding individual Chargebacks is not available, whether on the Publisher Hub or otherwise, and that a Publisher has no right to appeal or otherwise challenge a Chargeback.
8.3 The Publisher acknowledges and agrees that Total Revenue remains subject to Chargebacks, and is therefore conditional, even after it has been paid to Influencer or the Publisher.
Service Availability
9.1 Influencer will use its reasonable endeavours to ensure that the Service works on the Publisher’s website(s), but gives no warranty that the Service will achieve any minimum availability or response targets.
9.2 The Publisher agrees to notify Influencer promptly of any Service availability or performance issues via e-mail or the system. Influencer will use reasonable endeavours to correct any reported issues as soon as reasonably practicable.
Service Suspension
10.1 If Influencer has reasonable grounds to believe that the Publisher is not using the Service in accordance with the terms of the Agreement and/or in breach of the Program Policies, Influencer may:
10.1.1 request the Publisher either to remedy the breach or other default within such time scale as Influencer may reasonably require; or
10.1.2 if Influencer in its discretion considers that the breach or other default is sufficiently serious, or if the Publisher has failed to respond to Influencer request under clause 10.1.1 to Influencer’ reasonable satisfaction, suspend the Publisher’s access to the Service, in whole or in part, with immediate effect and without any obligation to provide prior notice (a “Service Suspension”).
10.2 As soon as reasonably practicable following a Service Suspension, Influencer will notify the Publisher of the reason(s) for the Service Suspension and, where applicable, confirm the steps that the Publisher is required to take in order for Influencer to reinstate the Publisher’s access to the Service.
10.3 Influencer will reinstate the Publisher’s access to the Service as soon as reasonably practicable after it has:
10.3.1 received written confirmation from the Publisher that the breach or other default giving rise to the Service Suspension has been remedied or rectified; and
10.3.2 where applicable, Influencer has carried out tests or otherwise satisfied that such breach or other default has in fact been remedied or rectified.
Term and Termination of the Agreement
11.1 The Agreement will commence when Influencer notifies the Publisher in accordance with these Terms of Service that the Publisher’s application has been accepted and, unless terminated earlier in accordance with clause 11.2, will continue until either party gives the other party written notice of termination at any time via email. Notices to Influencer should be sent to contributor@modesens.com. Notices to the Publisher will be sent to the email address provided by the Publisher in the Dashboard.
11.2 Either party may terminate the Agreement with immediate effect if:
11.2.1 the other party becomes bankrupt, insolvent or unable to pay its debt；
11.2.2 the other party is in breach of any material term of the Agreement and, in the case of a breach capable of remedy, has failed to remedy such breach within three (3) days of having been notified in writing of such breach.
11.3 On termination of the Agreement:
11.3.1 the Publisher will immediately cease use of the Service, remove all instances of the Influencer Tools from the Publisher’s website(s), and promptly return to Influencer, or at Influencer’ written request, destroy, any and all of its intellectual property rights, information and/or materials in the Publisher’s possession; and
11.3.2 except where (i) the Agreement is terminated by Influencer under clause 11.2 (in which case the Publisher forfeits all rights to receive any further payments) or (ii) the Publisher Revenue accrued (less any Chargebacks) is less than the Minimum Threshold, Influencer shall pay the Publisher the Publisher Revenue accrued (less any Chargebacks and pending payments from Merchants, Advertisers and/or Affiliate Networks) not later than the date falling three (3) months after the date of termination.
Licence
12.1 All intellectual property rights subsisting in, relating to or arising out of the Service (or any part thereof) shall at all times be owned by and vest in Influencer, including all developments or enhancements to the Service (or any part thereof). Subject to clause 12.2, the Publisher agrees that the Agreement does not transfer or grant any right, title or interest in Influencer’ intellectual property rights in the Service (or any part thereof) to the Publisher.
12.2 Influencer grants to the Publisher a non-exclusive, non-transferable, non-sublicensable, revocable, worldwide, licence to use the Service during the term of the Agreement.
12.3 The Publisher shall not be entitled to use the Service in any other way other than as set out in the Agreement. Any attempt to interfere with the operation of the Service (or any part thereof) will constitute a breach of the Agreement.
12.4 Subject to Audiences revenue distribution and usage terms as described in clause 6 and 5.3 respectively, the Publisher grants to Influencer a worldwide, non-exclusive right and licence to:
12.4.1 collect, use, and disclose Usage Data as provided in our Privacy Policy, and to allow our third party partners to do the same;
12.4.2 merge and infer connections between multiple sources of non-Personally Identifiable Usage Data, for purposes including but not limited to, creating derivative products, training algorithms, and other research and development;
12.4.3 licence, re-licence, sub-licence, or distribute Usage Data or derivatives to third parties directly or through distributors including any and all rights granted to Influencer in this Agreement; and
12.4.4 use Usage Data in connection with Service optimization, analysis, and product development and improvement, the results of which shall be owned exclusively by Influencer.
Assignment
The Publisher may not assign or otherwise transfer its rights and/or obligations under the Agreement, whether in whole or in part.
Communication
14.1 Any notice under the Agreement shall be in writing and shall be made either via e-mail or certified mail to the other party’s registered office address. Notices sent by e-mail will be deemed effective 24 hours from the time of sending and notices sent by mail will be deemed effective 48 hours after posting.
14.2 Influencer may disclose its relationship with the Publisher in its marketing material (including its website(s)) and in its operational relationship with Affiliate Networks and Merchants, including using for such purposes the Publisher’s name and trademarks.
14.3 The Publisher agrees that Influencer may use the Publisher’s contact details (including its email and registered address) to notify it about its account with Influencer, any issues relating to, and updates to, the Service, and any modifications to the terms of the Agreement.
Modifications
Influencer may modify all or any part of this Agreement, at any time and at its sole discretion, effective immediately upon notice published on the Influencer Publisher Interface. Continued participation in the Service after receiving notice of such modification will constitute the Publisher’s unconditional acceptance of the modification to this Agreement.
Indemnity
The Publisher shall indemnify, defend and hold harmless Influencer against all losses, liabilities, damages and costs (including legal expenses) sustained, incurred or suffered by Influencer as a result of any claim, action or proceeding that: (i) the Publisher’s websites infringe the intellectual property rights of any third party; (ii) the Publisher is in breach of its obligations under the terms of the Agreement; or (iii) any third party claims arising from the Publisher’s use of the Service otherwise than in accordance with the terms of the Agreement.
Liability
17.1 Except as expressly and specifically provided in the Agreement, all warranties, conditions, representations and other terms of any kind, whether express or implied, are, to the fullest extent permitted by law, excluded from the Agreement. In particular (but without prejudice to the generality of the foregoing), Influencer makes no express or implied warranties or representations with respect to the operation or availability of the Service. Influencer will not be liable for the consequences of any interruptions to or errors in the Service.
17.2 Influencer shall not be liable for: loss of profits; loss of business; depletion of goodwill or similar losses; loss of anticipated savings; or loss of goods; or loss of use; or loss or corruption of data or information; or any special, indirect, consequential or pure economic loss (whether or not falling in any of the foregoing categories), costs, damages, charges or expenses.
17.3 Subject to clauses 17.1 and 17.2, Influencer’ total aggregate liability under or in connection with the Agreement, whether for breach of contract, tort (including negligence), misrepresentation or otherwise, shall be limited to an amount equal to Influencer’ share of Total Revenue during the year preceding the date on which the claim arose.
17.4 Nothing in the Agreement excludes the liability of either party for any other liability which cannot be excluded under applicable law, including fraud, fraudulent misrepresentation, or death or personal injury caused by either party’s negligence.
Force Majeure
Neither party shall be liable to the other by reason of any event arising which is beyond the reasonable control of the affected party (including any industrial action (save in respect of affected party’s employees or suppliers), governmental regulations, fire, flood, disaster, civil riot or war).
Entire Agreement
The Agreement constitutes the whole agreement between the parties relating to its subject matter and supersedes any prior drafts, agreements, undertakings, representations, warranties and arrangements of any nature, whether in writing or oral, relating to such subject matter save that this clause 19 shall not exclude liability for any fraud or fraudulent misrepresentation of a party.
Requirement of Privacy Policy
Influencers are solely responsible for ensuring that their own website, application or other content take all necessary and proper measures to protect personal privacy, including following a written Privacy Policy posted on such sites, and adhering to all appropriate regulations, laws and other requirements. You must include in your disclosures all the information related to consumer data collection practices, a link to FTC Consumer Guide on Online Tracking, and a link to this ModeSens Privacy Policy and any other applicable policies for ModeSens Services.