Terms of Service
Last Updated: November 6th, 2015
- Responsibility for the Medium
- Commissions and Payment
- Disclaimer of Warranties
- Limitation of Liability
- Term and Termination
These Terms of Service (this ‘Agreement’), constitute a legal agreement between Kizitos B.V. (‘LinkPizza’) and you. This Agreement governs your use of the Software and Service (as defined below). By clicking ‘I Accept,’ you agree to all terms and conditions of this Agreement. If you are entering into this Agreement on behalf of a company or other organization, you hereby warrant and represent that you are authorized to enter into this Agreement on behalf of such company or other organization.
For purposes of this Agreement, the following terms have the following meanings:
- ‘Commissions’ means monetary payments made to you in relation to sales by Customers from Advertisers.
- ‘Customer’ means a user of the Medium that is referred to a Advertiser via the Service and/or interacts with Advertisers by purchasing goods and/or services.
- ‘Advertiser’ means a party that supplies goods and/or service to Customers and which has an affiliate program.
- ‘Service’ means the provision to you of the Software and access to Advertisers.
- ‘Software’ means the LinkPizza software that facilitates the automated and online referral by you of a Customer to a Advertiser and records the sales activity between such referral and Advertiser.
- ‘Medium’ means the Medium or Media upon which you install the LinkPizza code, call the LinkPizza Service or use the API.
Subject to the terms and conditions of this Agreement, LinkPizza grants you a non-exclusive, non-transferable, non-sublicensable license to use the Software and Service on the Medium during the term of this Agreement. You will not and will not permit any third party to (i) reverse engineer, decompile or otherwise attempt to discover the source code of the Software, (ii) interfere with the operation of the Software or Service; or (iii) use the Software or Service in any way other than as expressly set forth herein. LinkPizza retains all right, title and interest in and to the Software and Service, all improvements and derivative works thereof, together with all Intellectual Property Rights embodied therein. You will have no rights with respect to the foregoing except for the limited license expressly set forth herein.
You will be solely responsible for all matters related to the content, operation and maintenance of the Medium, including, but not limited to: (i) creating and posting Advertiser descriptions and links on the Medium and linking to Advertiser Media; (ii) the accuracy and appropriateness of all materials posted on the Medium (including, but not limited to, all information regarding Advertisers and Advertisers’ products and/or services); (iii) ensuring that all materials posted on the Medium do not infringe or misappropriate any third party intellectual property rights; and (iv) ensuring that all materials posted on the Medium are not defamatory or otherwise illegal. You represent and warrant that you shall comply with all rules, regulations and guidelines, as well as any applicable Advertiser terms and conditions and policies, in each case to the extent applicable to your operation of the Medium and use of the Service and Software, including, without limitation, those regarding the disclosure of a material relationship inherent in the links on the Medium.
You acknowledge and agree that (i) LinkPizza uses its sole discretion in determining which Advertisers the Medium will be affiliated with, as well as the number of Advertisers (if any) the Medium will be affiliated with; (ii) LinkPizza may (through the Software and with your permission) rewrite links on the Medium from one Advertiser to another in order to obtain the best value for you; (iii) Advertisers set their Commission structures and may change their Commission structures (generally or solely with respect to you) or terminate their involvement in the Service (generally or solely with respect to you) at any time and LinkPizza will have no control over or liability in connection with any Advertiser’s decision to do so; and (iv) Advertisers may at any time send LinkPizza notice requesting that you remove links or references to Advertisers’ brands, products, services or trademarks and LinkPizza will communicate this notice to you.
LinkPizza will be the ‘publisher of record’ for all Advertiser affiliate programs, and will collect all commissions received from Advertisers on account of referrals from the Medium. LinkPizza will pay a Commission equal to (i) 80% of revenues (the “Applicable Percentage”) that LinkPizza receives from Advertisers on account of referrals from the Medium (“Advertiser Revenue”) minus (ii) any Chargebacks (as defined below) and any other commission cancellations, reversals or deductions by any Advertiser with respect to any referrals from the Medium (collectively, “Deductions”). The Applicable Percentage will be set forth in the registration materials, which may be revised by LinkPizza from time to time upon notice to you. Payment will be issued to you at the end of each month for all Commissions earned by you that correspond to Advertiser Revenue that LinkPizza has received up to that point. There is a minimum payout of (fifty) 50 Euro. Commissions will accumulate until this payment minimum is reached. We will collect all relevant details for tax purposes as necessary and specified by the tax code. A Advertiser may determine, in its sole discretion, that any sale was not a bona fide transaction, whether goods are returned by the Customer or otherwise (a ‘Chargeback’), and may make a Chargeback claim requesting certain Commissions be canceled or reversed to reflect the fact that the Advertiser’s business never benefited from the transaction. Chargebacks are communicated to LinkPizza as they occur. Advertiser Revenue is typically paid by Advertisers, and Chargebacks are typically determined, within ninety (90) days from the applicable sale; however, you acknowledge and agree that LinkPizza is not required to pay any Commission to you until LinkPizza has actually received the corresponding Advertiser Revenue, and that you will be solely responsible and pay LinkPizza for (and LinkPizza may deduct from any Commission payments to you) the full amount of any Chargebacks and other Deductions, regardless of when such Chargeback or other Deduction is claimed by the Advertiser. You may, on dates and at times mutually agreed upon by you and LinkPizza and no more than once in any twelve (12) month period, audit and inspect relevant records of LinkPizza that relate to the calculation or Commissions. You will be liable for all costs and expenses associated with any
You will indemnify, defend and hold harmless LinkPizza and its officers, directors, shareholders, employees and agents from and against any and all liabilities, losses, damages and expenses (including reasonable attorneys’ fees and disbursements) resulting from or based upon (i) any claim that the Medium infringes or misappropriates any third party intellectual property rights; (ii) your breach of any representations or warranties made by you in this Agreement or of any other obligation of yours set forth in this Agreement, or (iii) any claim by any Customer or other third party arising from your use of the Service or Software, unless due to LinkPizza’s negligence or willful misconduct.
THE SOFTWARE AND THE SERVICE ARE PROVIDED ‘AS IS.’ LINKPIZZA DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES IN CONNECTION WITH THE SOFTWARE, THE SERVICE, THE ADVERTISERS ACCESSIBLE THROUGH THE SERVICE, THE OPERATION OF THE SOFTWARE OR THE SERVICE BEING UNINTERRUPTED OR ERROR-FREE, OR OTHERWISE WITH RESPECT TO THIS AGREEMENT. LINKPIZZA EXPRESSLY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED AND STATUTORY REPRESENTATIONS AND WARRANTIES, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, ERROR-FREE OR UNINTERRUPTED OPERATION AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. TO THE EXTENT THAT LinkPizza MAY NOT, AS A MATTER OF APPLICABLE LAW, DISCLAIM ANY SUCH WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM REQUIRED BY APPLICABLE LAW.
IN NO EVENT WILL LINKPIZZA BE LIABLE TO YOU OR ANY THIRD PARTY (INCLUDING, BUT NOT LIMITED TO, ANY CUSTOMER) FOR ANY LOST PROFITS OR LOST REVENUE, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SOFTWARE, THE SERVICE OR OTHERWISE WITH RESPECT TO THIS AGREEMENT. IN NO EVENT WILL LINKPIZZA LIABILITY FOR DAMAGES OR ALLEGED DAMAGES UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EXCEED [THE COMMISSIONS PAID TO YOU BY LINKPIZZA UNDER THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING SUCH CLAIM, OR FIVE HUNDRED EURO (€500.00), WHICHEVER IS LESS].
This Agreement will commence upon its execution and will continue until terminated by either you or LinkPizza upon at least five (5) business days prior written notice to the other party. In the event of termination of this Agreement for any reason other than your breach of this Agreement, LinkPizza will pay outstanding Commissions due to you in accordance with the terms of this Agreement. Upon termination of this Agreement for any reason, you will immediately cease use of, and promptly remove from the Medium, all instances of the Software and the Service and promptly return to LinkPizza, or at LinkPizza’s request destroy, any and all copies of the Software, Service or other information relating to the intellectual property of LinkPizza in your possession Sections 1, 4, 7, 8, 9, 10, 11 and 12 will survive termination of this Agreement for any reason.
In the event that any portion of this Agreement is held to be invalid or unenforceable, then such portion will be construed in accordance with the applicable law as nearly as possible to reflect the original intentions of the parties, and the remainder of this Agreement will remain in full force and effect. The paragraph headings herein are provided only for reference and will have no effect on the construction or interpretation of this Agreement. No waiver will be effective unless in writing. This Agreement will be governed by and construed in accordance with the Dutch law. Except for proceedings commenced by us to protect our intellectual property or confidential information which may be brought in any court of competent jurisdiction, the parties mutually agree that any and all disputes arising hereunder will be resolved exclusively by courts located in Amsterdam, The Netherlands. LinkPizza reserves the right to update or modify this Agreement at any time and from time to time. When LinkPizza makes changes to this Agreement, the ‘last updated’ date at the top of this Agreement will be revised. If there are material changes to this Agreement, we will notify you of any such modifications by posting a message on the LinkPizza website. You should periodically review this Agreement. Your continued use of the Software and Service after any changes or revisions to this Agreement will indicate your agreement with the terms of this Agreement. You may not assign this Agreement without the prior written consent of LinkPizza. This Agreement contains the entire agreement of the parties concerning the subject matter hereof and supersedes all existing agreements and all other oral, written or other communication between the parties concerning its subject matter.