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Advertiser Service Agreement

Introduction

Welcome to Make Things Happen, Inc. (“WOMO”). This website and the related webpages of WOMO (collectively referred to as this “Site”) is provided as a service to its visitors and may be used for informational purposes only. Please carefully read and understand these Website Terms and Conditions (the “Terms and Conditions”) before using this Site. By using this Site, you accept and agree to be bound and abide by the following Terms and Conditions and WOMO’s Privacy Policy. If you do not agree with these Terms and Conditions, you must not access or use this Site. WOMO recommends that you print a copy of these Terms and Conditions for future reference.

 

WOMO reserves the right to change, edit, or delete any documents, information, or other content appearing on the Site or these Terms and Conditions from time to time without notice and in its sole discretion. All changes are effective immediately when posted and apply to all access to, and use of, this Site thereafter. Every time you wish to use the Site, please review these Terms and Conditions to ensure that you understand the terms that may apply to you at that time.

 

1. Relationship

You agree not to: (a) mislead others; (b) operate or utilize a Web site or e-mail Link to Web sites that contain or promote, any of these types of content: libelous, defamatory, obscene, abusive, violent, bigoted, hate-oriented, cracking, hacking or warez, or offer any illegal good or service, or Link to a Web site(s) that does so; (c) engage in spamming, indiscriminate advertising or unsolicited commercial e-mail, or other applicable laws regulating commercial e-mail; (d) violate any applicable privacy laws; and/or (e) engage in any illegal activity of any type.

 

WOMO may not review all content on Your Web site. You remain solely responsible for Your Web site content. WOMO is, under no circumstances, responsible for the practices of any Publisher or Advertiser or such Publisher or Advertiser’s Web site(s), and/or the content of Publishers’ subscription e-mails and/or the content that an Advertiser makes available through the Network Service.

 

2.1 Program Details

The details of Your Program and any Campaigns shall be contained within Your “Advertiser Agreement.” You must provide WOMO with a copy of Your Advertiser Agreement content prior to Your Program being activated for WOMO’s review for consistency with the Network Service. To revise Your Advertiser Agreement, including your domain name, and/or Special Ts&Cs, You must submit the content to WOMO for review. Notwithstanding the preceding, nothing contained on Your Advertiser Agreement may conflict with the terms and conditions contained in this Agreement and the Publisher Service Agreement, and any such conflicting terms and conditions shall be void.

 

2.2 Terminating Publishers from Your Program

After WOMO approved a Publisher’s application to Your Program on your behalf based on your publisher selection criteria provided, WOMO may terminate that Publisher, one of its Sub-Publishers, or one of that Publisher’s (or Sub-Publisher’s) Web sites or subscription e-mail lists from Your Program upon 7 days written notice with effect from the 8th day from such notice. You may terminate a Publisher with less than 7 days written notice if You are terminating the Publisher/Sub-Publisher upon notification for breach of the material provisions of the Publisher’s Publisher Service Agreement or Your Program terms.

In order to terminate a Publisher from Your Program for Publisher Termination for Convenience, You must contact your WOMO Account Manager. WOMO shall process termination requests received during normal business hours within 24 hours and those received out of normal business operating hours shall be processed within 24 hours of the next business day (excluding holidays). WOMO is not responsible for Publishers’ compliance with Your termination requests. WOMO may terminate a Publisher from a Your Program in WOMO’s sole discretion.

 

3.1 Fees

In consideration for payment of the fees due and compliance with this Agreement, WOMO shall provide You with access to the Network Service. Advertisers must pay to WOMO the agreed Service Fee and Publisher Payouts from qualifying transactions every payout period. Advertisers must make their payments via check or bank transfer to WOMO for the Service Fee and Publisher Payouts on the specified monthly due date on Advertiser Agreement.

 

3.2 Ad Serving; Tracking Code Maintenance

You agree to comply with WOMO’s tracking code integration and maintenance requirements as notified to You by WOMO from time to time. Your Links and all advertisements contained in Your Links (“Ad Content”) must be in a Network Service compatible format, as such format may be established by WOMO from time to time. If You have any non-standard Ad Content or format, these must be served by You, Your Publishers or a WOMO authorized provider.

 

If the tracking code is not recording tracking data properly on the Network Service and You are receiving Visitor traffic but Transactions are not being recorded, or if You are using an alternative tracking method to pixel image tracking and You fail to timely comply with Your reporting obligations, WOMO shall calculate Payouts, and charge Your Account for such Payouts (“Estimated Payouts”) based upon an historical analysis of Your Account as applied to an historical analysis of Your Publishers’ promotion of You. Service Fees and Publishers’ payouts shall be applied to such Estimated Payouts and an additional service fee shall be payable to WOMO equal to 15% times the Estimated Payouts, with a PHP5,000 minimum. If there is not enough performance data for Your Account to make such analyses, WOMO shall calculate Estimated Payouts based upon a performance average across the Network Service for all Advertisers for the period under review.

 

3.3 Payouts/Payout Rates

You shall provide a Payout rate for a qualifying Transaction for each of Your Campaigns on the Advertiser Agreement. Your Account will be charged with each Payout and corresponding Service Fee in accordance with Your Campaign Payout rate for the relevant Campaign for each such Visitor action directly resulting from each of Your Publisher’s Web sites or within a subscription e-mail Linking to Your Web site. Unless specifically excluded, all Transactions are eligible for a Payout.

 

You may discontinue Campaigns or Programs, or decrease any Payout rate upon 7 days written notice via sending an email to your Account Manager, with effect from the 8th day from such notice. WOMO will send Your Publishers a notice regarding each change in Your Payout rate(s), or Campaign or Program discontinuation.

 

3.4 Payment

You shall provide a Payout rate for a qualifying Transaction for each of Your Campaigns on the Advertiser Agreement. Your Account will be charged with each Payout and corresponding Service Fee in accordance with Your Campaign Payout rate for the relevant Campaign for each such Visitor action directly resulting from each of Your Publisher’s Web sites or within a subscription e-mail Linking to Your Web site. Unless specifically excluded, all Transactions are eligible for a Payout.

 

3.5 Payment Schedule

WOMO will send the Service Fee and Publisher payout invoice to You every 3rd day of the month. You must finalize the invoice on or before the 10th of the month, or else it’s considered approved and final. You must settle the approved invoice via check or bank transfer on or before the 15th of the month. Your failure to settle the invoice on or before the 15th of the month will result in a temporary suspension of your active campaigns.

 

3.6 Chargebacks

A “Chargeback” means that the Transaction is not eligible for a Payout, only in the following circumstances: (a) product return; duplicate entry or other clear error; (b) Publisher’s failure to comply with Your Program terms or breach of the Publisher Service Agreement with respect to such Publisher’s participation in Your Program; or, (c) with respect to a Sale, non-receipt of payment from, or refund of payment to, the Visitor by You. New, Extended and Corrected Transactions must be processed by You, either through contacting your Account Manager or through a scheduled data transfer (in accordance with WOMO’s processes and procedures) by the 10th of the month for Transactions that occurred the prior month. Failure to process a Transaction’s status by the 10th of the month will keep its Approved status. Approved invoices must be settled on or before the 15th of the month. Payment of the Payout and Transaction Fees associated with that Transaction must then be authorized by You. “Corrected” means that You have reviewed the Transaction and that You represent and warrant that the Transaction qualifies as a “Chargeback”. New Transaction statuses may be changed to Extended status by WOMO on Your behalf in circumstances where: (a) You are verifying a Lead (for Lead actions); or (b) You have a product return policy or offer that allows the Visitor to return the product during the “Chargeback Period” (but not beyond). “Chargeback Period” means the period of time between the date that a Sale occurred (for Sale actions) or that the Lead was completed (for Lead actions) and the 10th of the following month, or the period defined by You as the custom lifecycle in Your program. If the Transaction is Extended, the Chargeback Period is extended through the 10th of the second month after the date of the Transaction. If you elect to customize the lifecycle in Your Program, You cannot Extend a Transaction.

 

4.1 Proprietary Rights and Licenses

You grant to WOMO a revocable, non-transferable, royalty free, international license to display on and distribute from WOMO’s Web site Links to Your Web site for Your Program(s), and all trademarks, service marks, tradenames, and/or copyrighted material (“Content”) that You provide to WOMO for the limited purposes of promoting Your Program to Publishers and potential Publishers, subject to the terms and conditions of this Agreement and the Publisher’s Publisher Service Agreement. The rights to display and Link to Your Web site are sub-licensable by WOMO to Your Publishers.

 

WOMO shall not otherwise copy or modify any icons, buttons, banners, graphics files, or Content that You have provided pursuant to the foregoing license, except as necessary to conform Your Links to a WOMO compatible format.

 

You agree that Your use of any WOMO Web site (such as www.womo.ph), and Your use of any WOMO logos, trademarks or Links is subject to the license and terms of use that are available from such Web site (“Terms of Use”).

 

You represent and warrant that You have all appropriate authority and rights to use all trademarks, logos, service marks, tradenames, and/or content displayed on Your Web site or otherwise utilized hereunder.

 

4.2 Terminating Licenses

When You terminate any Publisher’s participation in Your Program, the Publisher’s sublicense to Your Content terminates immediately. You may terminate a Publisher’s participation in Your Program immediately if You have reasonable concerns that the sublicensee/licensee is diluting, tarnishing or blurring the value of Your trademarks, service marks, and/or tradenames, and/or breach of Your other intellectual property rights. This Agreement may be terminated in whole or part by either party if such party has reasonable concerns that the other party is diluting, tarnishing or blurring the value of such party’s trademarks, service marks, and/or tradenames, and/or for breach of such party’s other intellectual property rights.

 

5.1 Confidentiality

You or WOMO may provide the other with information that is confidential and proprietary to that party or a third party, as is designated by the disclosing party (“Confidential Information”). The receiving party agrees to make commercially reasonable efforts, but in no case less effort than it uses to protect its own Confidential Information, to maintain the confidentiality of and to protect any proprietary interests of the disclosing party. Confidential Information shall not include (even if designated by a party) information that is or becomes part of the public domain through no act or omission of the receiving party, or is lawfully received by the receiving party from a third party without restriction on use or disclosure and without breach of this Agreement or any other agreement without knowledge by the receiving party of any breach of fiduciary duty, or that the receiving party had in its possession prior to the date of this Agreement.

 

You agree that WOMO may provide Your e-mail address(es) and basic Advertiser Account detail to Publishers.

 

5.2 Collection and Use of Transaction Data

WOMO collects, owns, and may use as it chooses anonymous Visitor demographic, transactional information, and WOMO marketing platform information and data. Advertiser is prohibited from providing WOMO with any personally identifiable information of Visitors and third parties. Without limiting the foregoing, Advertiser shall not provide WOMO with Order IDs that could potentially be connected to an actual individual, including, but not limited to user names.

 

6.1 Notices

Except as provided elsewhere herein, both parties must send all notices relating to this Agreement in writing via overnight mail (a) to Make Things Happen, Inc, Attn: Legal Affairs, UB 111 Paseo de Roxas, Legazpi Village, Makati City, Metro Manila, Philippines. (b) for You, at the address listed on Advertiser Agreement. Notices shall be effective upon the notified party’s actual receipt (or refusal to accept to receipt, if applicable), or five (5) days after the date of mailing.

 

6.2 Term and Termination

 

6.2.1 Term

This Agreement shall commence and shall be in effect once (i) You have properly installed the WOMO tracking code within Your Links, (ii) such Links to Your Web site or Web site content are accessible to Your Publishers through the Network Service.

 

6.2.2 Termination for Cause

Either party may terminate this Agreement if the other party breaches this Agreement and fails to cure such breach within 30 days of receipt of written notice from the non-breaching party of the existence and nature of the breach. Notwithstanding the preceding, WOMO may terminate this Agreement immediately upon notice should You engage in illegal activity of any type.

 

Notwithstanding the foregoing, WOMO may: (i) immediately deactivate Your Account(s) without notice if You breach Sections 1, 3.5, and 4 or engage in illegal activity of any type, (ii) deactivate Your Account(s) upon 7 days’ notice if You breach Section 3.2 (Ad Serving; Tracking Code Maintenance), and (iii) deactivate Your Account(s) for any other breach of this Agreement upon Your failure to cure such breach within 7 days of receipt of written notice from WOMO of the existence and nature of the breach. If this Agreement is terminated for Your breach, You shall not be eligible to enter into a new Advertiser service agreement with WOMO, and any attempt to do so shall be null and void.

 

6.2.3 Effect of Termination

Upon termination of this Agreement, You shall pay to WOMO any outstanding Service Fee and Publisher Payout balance within 10 business days of the date of termination. In no event shall outstanding payments be made to Publishers unless and until WOMO receives payment from You. Upon reconciliation of Your Account, WOMO shall pay You any outstanding credit balance after the conclusion of the last Chargeback Period.

 

Upon termination of this Agreement, any license or sublicense granted to You or by You under this Agreement will terminate, and the licensee/sub-licensee shall immediately destroy or delete all physical and electronic copies of the Confidential Information, and cause all Links to WOMO to be removed. WOMO shall (a) inform Your Publishers that Your Program(s) has ended (if terminated) or has been temporarily discontinued (in the case of temporary deactivation), (b) stop distributing Links to Your Web site, and (c) request (or suggest, in circumstances of deactivation) that all Links placed by Your Publishers to Your Web site be removed from such Publishers’ Web sites and/or subscription e-mail.

 

6.3 Survival

The provisions of this Section 6 and Sections 1 (last 2 sentences of second paragraph), 3.4, 3.5, 3.6 (to the extent that Chargebacks that occur post-termination are subject to the same terms and conditions as those that occur during the term of this Agreement), 5, 6.1, 6.2, 7.1, 8, 9.2, 9.5, and 9.6 shall survive the termination of this Agreement, subject to the restrictions outlined in Section 7.1.

 

7.1 Limitation of Liabilities

ANY LIABILITY OF A PARTY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL OF ALL FEES PAID AND PAYABLE BY YOU TO WOMO, AND INTEREST PAID AND PAYABLE BY YOU TO WOMO, FOR THE TWELVE MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM AROSE. NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST WOMO MORE THAN ONE YEAR AFTER THE TERMINATION OF THIS AGREEMENT. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY, OR ANY THIRD PARTY (INCLUDING BUT NOT LIMITED TO A CLAIM BY A PUBLISHER OR ADVERTISER OF THE NETWORK SERVICE), FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF GOODWILL, LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR OTHER DATA, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIM.

 

7.2 Disclaimer of Warranties

TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, WOMO DISCLAIMS ALL WARRANTIES IMPLIED, INCLUDING, BUT NOT LIMITED TO, (A) MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, (B) THAT THERE ARE NO VIRUSES OR OTHER HARMFUL COMPONENTS, (C) THAT WOMO’S SECURITY METHODS WILL BE SUFFICIENT, (D) REGARDING CORRECTNESS, ACCURACY, OR RELIABILITY, OR (D) AGAINST INTERFERENCE WITH ENJOYMENT OF THE PUBLISHER’S INFORMATION OR WEB SITE. ALL ‘INFORMATION’ AND ‘COMPUTER PROGRAMS’ PROVIDED TO YOU IN THE COURSE OF THIS AGREEMENT ARE PROVIDED WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. WOMO IS, UNDER NO CIRCUMSTANCES, RESPONSIBLE FOR THE PRACTICES, ACTS OR OMISSIONS OF ANY ADVERTISER OR PUBLISHER, OR SUCH ADVERTISER OR PUBLISHER’S WEB SITE(S), AND/OR THE CONTENT OF AN ADVERTISER’S WEB SITE OR THAT AN ADVERTISER MAKES AVAILABLE THROUGH THE NETWORK SERVICE.

 

8 Indemnification

You shall indemnify and hold WOMO harmless against all allegations, claims, actions, causes of action, lawsuits, damages, liabilities, obligations, costs and expenses (including without limitation reasonable attorneys’ fees, costs related to in-house counsel time, court costs and witness fees) (collectively “Losses”) attributable to or related to Your breach of this Agreement and for claims of product liability (“Claims”). Should any Claim give rise to Your duty of indemnification under the provisions of this Agreement, then WOMO shall promptly notify You, and You may participate in (at your own expense), but not control, the defense of such Claim. Participation in the defense shall not waive or reduce Your obligations to indemnify or hold WOMO harmless.

 

9.1 Relationships of Parties/Third Party Rights

The relationships of the parties to this Agreement shall be solely that of independent contractors, and nothing in this Agreement or in the business or dealings between the parties shall be construed to make them joint venturers or partners with each other. Neither party shall do anything to suggest to third parties that the relationship between the parties is anything other than that of independent contractor. You agree that Your consent is not necessary to modify any Publisher Service Agreement.

 

9.2 Choice of Law/Attorneys’ Fees

This Agreement shall be governed and construed under the law of the Philippines without giving effect to any international and supranational (contractual) laws, particularly the UN Convention on the International Sale of Goods. Either party may bring the matter to the proper courts of Pasig City, to the exclusion of all other courts. The parties waive the personal service of any process upon them and agree that service may be effected by overnight mail (using a commercially recognized service) or by mail with delivery receipt to the address stated in this Agreement. WOMO shall be entitled to recover all reasonable costs of collection (including attorneys’ fees, in-house counsel costs, expenses and costs) incurred in attempting to collect payment from Advertiser. WOMO controls and operates its Web site from its offices in the Philippines and access or use where illegal is prohibited.

 

9.3 Force Majeure

Neither party shall be liable by reason of any failure or delay in the performance of its obligations hereunder for any cause beyond the reasonable control of such party, including but not limited to electrical outages, failure of Internet service providers, default due to Internet disruption (including without limitation denial of service attacks), riots, insurrection, war (or similar), fires, flood, earthquakes, explosions, and other acts of God.

 

9.4 Severability/Waiver

If any provision of this Agreement is held by any court of competent jurisdiction to be illegal, null or void or against public policy, the remaining provisions of this Agreement shall remain in full force and effect. The parties shall in good faith attempt to modify any invalidated provision to carry out the Parties’ stated intentions. The waiver of any breach of any provision by any party shall not be deemed to be a waiver of any preceding or subsequent breach, nor shall any waiver constitute a continuing waiver.

 

9.5 Entire Agreement, Assignment and Amendment

This Agreement contains the entire understanding and agreement of the parties. You may not modify, amend or assign (“Change”) this Agreement without WOMO’s written consent. WOMO shall have the right to change or assign this Agreement, in whole or in part (including without limitation the fees and charges), by notifying You of such Change, by email, at least fourteen (14) days prior to the Effective Date of such Change; provided, however, that either party shall have the right to terminate this Agreement pursuant to Section 6.2 in the event that You do not agree to such Change.

 

9.6 Marketing

Advertiser agrees that WOMO may identify it as a WOMO Advertiser in client lists and other marketing materials, and that WOMO may issue an Advertiser-approved press release announcing the establishment of the relationship between the companies. Any other uses of Advertiser’s name and/or logo shall require Advertiser’s prior written consent.

 

9.7 Solicitation of Publishers

During the Term of this Agreement, any renewal Terms, and for 12 months hereafter, You shall not knowingly solicit any Publisher, web site, or e-mail provider that is obtained through the Services provided by WOMO under this Agreement, nor shall You transfer any Publisher obtained through the Services provided by WOMO under this Agreement to any third party provider or any in-house program substantially similar to the Services being provided by WOMO hereunder, and You shall not encourage any such Publisher to so transfer. In the event You do directly solicit or cause to be transferred any affiliate, You shall pay WOMO what WOMO would have otherwise earned had You not violated this provision. Except as expressly set forth above, nothing herein shall be deemed to restrict Advertiser from entering into independent strategic partnerships or other agreements with Publishers, or to prohibit Advertiser from advertising, merchandising or promoting its products or services.

 

9.8 Tax Status and Obligations

WOMO is not obligated to and shall not provide Advertiser with tax and/or legal advice. WOMO undertakes no duty to investigate or research Advertiser’s tax status and/or obligations, and such research and investigation is the sole responsibility of Advertiser. Advertiser is obligated to independently assess and comply with all relevant tax and legal requirements, and Advertiser is responsible for its own sales tax collection and reporting obligations arising from sales made to Visitors. If WOMO provides Advertiser with information regarding a particular Publisher, the information shall not be deemed tax or legal advice, and WOMO shall not be responsible for the accuracy of such information. Any Publisher addresses provided to Advertiser are addresses provided by the relevant Publisher, and such addresses may not necessarily indicate the location or presence of the Publisher in such location or elsewhere.

 

10 Third Party Disputes

In the event of a third party claim against either: (a) WOMO’s intellectual property; or (b) against WOMO’s right to offer any service or good on WOMO’s Web site(s) or if, in WOMO’s opinion, such a claim is likely, WOMO shall have the right, at its sole option and in its sole discretion, to (i) secure the right at WOMO’s expense to continue using the intellectual property or good or service; or (ii) at WOMO’s expense replace or modify the same to make it non-infringing or without misappropriation, provided that any such replacement or modification will have similar operating capabilities and functionalities of the allegedly infringing services and deliverables provided hereunder.

 

Your use of the Network Service is irrefutable acknowledgement by You that You have read, understood and agreed to each and every term and provision of this Agreement. WOMO may establish from time to time rules and regulations regarding use of the Network Service as published on the Network Service and such rules and regulations are incorporated herein.

 

Contact Information:

Make Things Happen, Inc. (WOMO)
UB 111 Paseo de Roxas, Legazpi Village, Makati City, Metro Manila, Philippines

 

Confidential and Proprietary Information.

v. October 30, 2020

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