General terms and conditions for participation in OPEN's Affiliate Program

March 17, 2013

NOTE: PLEASE THOROUGHLY REVIEW THESE GENERAL TERMS AND CONDITIONS FOR PARTICIPATION IN OPEN'S AFFILIATE PROGRAM (THE "GENERAL TERMS AND CONDITIONS") BEFORE YOU COMMENCE YOUR PARTICIPATION IN OPEN'S AFFILIATE PROGRAM. IF YOU DO NOT AGREE TO BE BOUND BY THESE GENERAL TERMS AND CONDITIONS, OPEN IS NOT WILLING TO APPOINT YOU AS AN AFFILIATE AND YOU ARE NOT ALLOWED TO PARTICIPATE IN THE OPEN AFFILIATE PROGRAM. PLEASE NOTE THAT THE COMMENCEMENT OF ANY OF THE ACTIVITIES THAT ARE ALLOWED UNDER THE OPEN AFFILIATE PROGRAM WILL BE CONSIDERED AS AN ACCEPTANCE OF THESE GENERAL TERMS AND CONDITIONS.

1. BACKGROUND

OPEN has established an affiliate program, under which approved affiliates are entitled to promote OPEN and its products subject to the terms and conditions set out in these General Terms and Conditions (the "OPEN Affiliate Program").

2. DEFINITIONS

2.1 The following capitalized terms will have the meanings ascribed to them below, unless the context would obviously require otherwise.

"Affiliate" means an affiliate whose Affiliate Application has been accepted by OPEN by e-mail or otherwise in writing and who accepts these General Terms and Conditions.

"Affiliate Application" means the application form that must be submitted to OPEN in connection with the application to become a OPEN Affiliate.

"Affiliate Revenue Share" shall mean the revenue share that the Affiliate is entitled to, if any, in relation to sales of OPEN products that are tracked by the OPEN Tracking Functionality as sales that results from the Affiliate Promotional Activities performed hereunder.

"Affiliate Mailers" means newsletters and other mailers that the Affiliate issues from time to time to customers and other individuals who have accepted to receive such mailers from the Affiliate.

"Affiliate Promotional Activities" shall mean the promotional activities that the Affiliate performs hereunder in order to promote OPEN and the OPEN products as further specified in Section 3.1 hereto.

"Affiliate Resource Page" means the resource page that the Affiliate is granted access to when it has been approved as an Affiliate by OPEN, which specifies the OPEN Materials that the Affiliate is entitled to use whilst performing the Affiliate Promotional Activities hereunder.

"Affiliate Sites" means websites that are owned and controlled by the Affiliate.

"Affiliate User Account" means the Affiliate's user account for the OPEN Affiliate Program that: (i) specifies the contact details for the Affiliate; (ii) enables the Affiliate to use OPEN Tracking Functionality so that sales that directly relate to the Affiliate Promotional Activities can be properly tracked; (iii) specifies the Affiliate Revenue Share, if any.

"Effective Date" means the date when the Affiliate commences with any of the Affiliate Promotional Activities.

"OPEN Guidelines and Policies" means all other guidelines and policies of OPEN, its licensors and cooperation partners, including any updates of any of the foregoing, which OPEN makes available to the Affiliate on the OPEN website or otherwise in writing hereunder (including e-mails).

"OPEN Marks" means the name, trademarks, service marks, trade names, logos and/or other designations of origin of OPEN as specified on the OPEN website.

"OPEN Materials" means documents, texts, banners, graphics, logotypes, photos, screenshots, box shots and any and all other materials provided to the Affiliate on the Affiliate Resource Page or by any other means.

"OPEN Site" means http://open.yomu.ru/ including the shopping carts linked thereto.

"OPEN Products" shall mean all products that are subject to commerce on OPEN Site and feature OPEN Tracking Functionality.

"OPEN Tracking Functionality" means OPEN tracking functionality which tracks whether a sale of a OPEN product relates to the Affiliate Promotional Activities performed hereunder.

 

3. LICENSE RIGHTS AND RESTRICTIONS

3.1 Subject to the Affiliate's compliance with these General Terms and Conditions (including but not limited to the requirements set out in Section 4.1 below), OPEN grants the Affiliate, during the term hereof, a non-exclusive, non-transferable, non-sublicensable and limited license, to:

  1. use the OPEN Marks and the OPEN Materials on the Affiliate Site(s) to provide links from the Affiliate Sites to the OPEN Site;
  2. use the OPEN Marks and the OPEN Materials in Affiliate Mailers to provide links to the OPEN Site;
  3. subject to OPEN's prior written approval, use the OPEN Marks, the OPEN Materials and the OPEN Products for any other promotional activities.

3.2 The Affiliate may not assign, delegate, sublicense, pledge or otherwise transfer the rights or licenses set out herein, or any of its obligations hereunder to any third party other than as expressly granted under these General Terms and Conditions.

3.3 The Affiliate may not alter, change, modify or adapt the OPEN Marks or the OPEN Materials, unless otherwise approved by OPEN in writing (in each specific case).

3.4 The OPEN Marks, the OPEN Materials and the OPEN Products and any and all patents, copyrights, trademarks, design rights and any and all other intellectual property rights associated therewith, are the exclusive property of OPEN and its licensors. All rights in and to the OPEN Marks, the OPEN Materials and the OPEN Products are reserved by OPEN and its licensors and the Affiliate obtains no other rights than the limited license rights explicitly granted under Section 3.1 above.

4. THE AFFILIATE'S OBLIGATIONS

4.1 The Affiliate undertakes to:

  1. place links on the Affiliate Sites to the OPEN Site through use of the OPEN Marks and the OPEN Materials;
  2. ensure that the Affiliate Sites do not contain any content that is illegal or which can be considered as defamatory, racist, abusive or fraudulent;
  3. ensure that the Affiliate Mailers that include OPEN Marks, OPEN Materials or links to OPEN Products cannot be considered as spam or unsolicited e-mails;
  4. ensure that all use of the OPEN Marks or the OPEN Materials is made in compliance with the OPEN Guidelines and Policies and OPEN's instructions from time to time;
  5. upon OPEN's request, promptly remove from any Affiliate Sites or any Affiliate Mailer any OPEN Marks, OPEN Materials or any text relating to OPEN or the OPEN products;
  6. ensure that the use of the OPEN Marks, the OPEN Materials and the OPEN Products are made in compliance with any and all applicable laws and regulations, including but not limited to export control laws, privacy laws, marketing laws and consumer protection laws;
  7. ensure that the contact information in the Affiliate User Account is complete, correct and at all times accurate; and
  8. ensure that no third party is given access to the password of the Affiliate User Account and immediately inform OPEN of any suspected misuse of the afore-mentioned password.

4.2 The Affiliate shall, during the term hereof and thereafter, indemnify OPEN against any and all liabilities, damages, losses, costs and expenses (including reasonable legal fees and expenses) suffered or incurred by OPEN due to: (i) the Affiliate's breach of these General Terms and Conditions; or (ii) otherwise due to the Affiliate's use of the OPEN Marks or the OPEN Materials.

5. OPEN'S OBLIGATION

OPEN shall pay any Affiliate Revenue Share that the Affiliate is entitled to in connection with the Affiliate Promotional Activities hereunder, if any, without undue delay. Any Affiliate Revenue Share percentage shall be calculated on the end user purchase price of the applicable OPEN product exclusive of any and all taxes and shipping fees (if applicable).

The Affiliate will only be entitled to Affiliate Revenue Share on sales of OPEN products which can be tracked by the OPEN Tracking Functionality.

6. DISCLAIMER

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE MANDATORY LAW, THE OPEN MARKS, THE OPEN MATERIALS AND THE OPEN PRODUCTS (AND ANY AND ALL PARTS THEREOF) ARE PROVIDED "AS IS" AND OPEN MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER WITH RESPECT TO THE OPEN MARKS, THE OPEN MATERIALS OR THE OPEN PRODUCTS, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTIES' INTELLECTUAL PROPERTY RIGHTS.

7. LIMITATION OF LIABILITY

7.1 EXCEPT AS EXPRESSLY SET FORTH IN THESE GENERAL TERMS AND CONDITIONS AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE MANDATORY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR: (I) INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES; NOR FOR (II) DAMAGE TO PROPERTY; LOSS OF USE OR DATA; LOSS OF PRODUCTION; OR LOST PROFITS, SAVINGS OR REVENUES OF ANY KIND (WHETHER DIRECT, INDIRECT OR CONSEQUENTIAL); NO MATTER WHAT THEORY OF LIABILITY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

7.2 Notwithstanding anything to the contrary herein, OPEN's total accumulated liability hereunder shall not exceed the payments made to the Affiliate hereunder during the period of time the Affiliate operated in the interest of the OPEN Affiliate Program, and under OPEN approval.

7.3 Notwithstanding the above, the limitation of liabilities set out in Section 7.1 above shall not apply in case of gross negligence or willful misconduct or in case of a breach of, or in relation to, Section 3, Section 4.1 (ii)-(x), Section 4.2 and Section 8.

7.4 No action, regardless of form, arising out of any alleged breach of these General Terms and Conditions may be brought by either party more than twelve (12) months after the cause of action occurred or became known to the claiming party, whichever is later.

8. CONFIDENTIALITY

The Affiliate undertakes to keep and treat as confidential and not disclose to any third party any information relating to OPEN's business and trade secrets received in connection with the Affiliate's participation in the OPEN Affiliate Program (including but not limited to product related and commercial information) nor make use of such information for any purpose whatsoever other than for the purposes of its participation in the OPEN Affiliate Program. The confidentiality undertaking shall last during the term of the Affiliate's participation in the OPEN Affiliate Program and for a period of five (5) years thereafter.

9. TERM AND TERMINATION

9.1 OPEN may further prematurely terminate the Affiliate's participation in the OPEN Affiliate Program upon written notice to the Affiliate (including e-mail), with immediate effect: (i) if the Affiliate, in OPEN's reasonable discretion, is in material breach of these General Terms and Conditions; (ii) if the Affiliate's use of the OPEN Marks, in OPEN's reasonable discretion, dilutes or tarnish the OPEN Marks or harms the reputation of OPEN in any way; (iii) if the Affiliate becomes insolvent or enter into liquidation, bankruptcy or other procedure due to its inability to pay its debts; or (iv) in the event of a change of control of the OPEN.

9.2 Upon termination or expiration of the Affiliate's participation in the OPEN Affiliate Program, all rights granted to the Affiliate hereunder shall terminate and the Affiliate shall: (i) cease any and all use of the OPEN Marks, the OPEN Materials and the OPEN Products; and (ii) destroy any Confidential Information of OPEN received hereunder.

9.3 Sections which by their nature are intended to survive the termination or expiration of these General Terms and Conditions, shall so survive the expiration or termination hereof, including but not limited to Section 4.2, Section 6, Section 7, Section 8 and Section 12.

10. REVISIONS OF THESE GENERAL TERMS AND CONDITIONS

OPEN reserves the right to revise these General Terms and Conditions upon at least thirty (30) days prior written notice to the Affiliate (including e-mail). If the Affiliate does not accept the revised General Terms and Conditions, the Affiliate is entitled to terminate its participation in the OPEN Affiliate Program with immediate effect upon written notice to OPEN (including e-mail).

11. MISCELLANEOUS

11.1 All notices required or permitted to be given by either party under these General Terms and Conditions shall be in writing and may be delivered by courier, registered mail, facsimile or e-mail and shall be deemed given upon dispatch of such notice. A notice to the Affiliate shall be made to the contact details specified in the Affiliate User Account, and notices to OPEN shall be made to the contact details specified on OPEN website.

11.2 The Affiliate may not assign any of its rights or obligation under these General Terms and Conditions to a third party without the prior written consent of OPEN.

11.3 The failure by OPEN or the Affiliate to enforce any provisions of these General Terms and Conditions or to exercise any right in respect thereto shall not be construed as constituting a waiver of its rights thereof.

11.4 If any provision of these General Terms and Conditions is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.

11.5 The Affiliate's participation in the OPEN Affiliate Program is not intended to establish any partnership, agency, joint venture, employment, or other relationship between the OPEN and the Affiliate except that of independent contractors.

11.6 These General Terms and Conditions contains the entire agreement between the parties on the subject matter hereof and supersedes all undertakings and agreements previously made between the parties with respect to the subject matter of these General Terms and Conditions.

11.7 Except as set out in Section 10 above, these General Terms and Conditions may be modified only by a written document duly signed by both parties and referencing these General Terms and Conditions.

12. GOVERNING LAW AND ARBITRATION

Notwithstanding the above, nothing in these General Terms and Conditions shall prevent either party from seeking any interim or final injunctive relief by a court if competent jurisdiction.