The following is a list of our complete terms and conditions that apply to all members of the Optimization Media Corp. Partner Program “the Agreement”, as between "Optimization Media Corp or "Optimization Media" and the Partner (together, "the Parties"). Please read this agreement in its entirety.
By submitting the application form or linking to the shopify partner program website you are deemed to have agreed to be bound to the terms and conditions set out in this agreement.
Everyday language summaries are provided for your benefit and are not legally binding. Please read the “Partner Program Agreement” for the complete picture of your legal requirements. By using Optimization Media or any Optimization Media services, you are agreeing to these terms. Be sure to occasionally check back for updates.
Shall mean a monetary transaction made by a Lead who opens a Optimization Media account and conducts transactions on our platform.
Shall mean an entity that has agreed to the terms of the Partner Program herein to work with Optimization Media to promote the Service by (a) referring clients to Optimization Media; (b) developing Optimization Media website or store themes for merchant use; and/or (c) developing apps using the Optimization Media Application Interface (API) for merchant use.
Shall mean any marketing and/or promotional materials relating to Optimization Media and/or Optimization Media brands that are promoted by Optimization Media and Optimization Media Related Entities as Optimization Media deems necessary or appropriate.
1.4. Confidential Information
Shall include, but shall not be limited to, any and all information associated with the other Party’s business and not publicly known, including, the contents of this Agreement, specific trading information, technical processes and formulas, source codes, customer lists, prospective customer lists, names, addresses and other information regarding customers and prospective customers, product designs, sales, costs, and other unpublished financial information, business plans and marketing data, and any other confidential and proprietary information, whether or not marked as confidential or proprietary.
1.5. The Service
Refers to the Optimization Media software platform available via the Optimization Media websites and any associated websites including www.optimizationmedia.net, www.optimizationmedia.com, www.canadamobilepayments.com, or and any others.
Shall mean any unique user that has registered for a paid Optimization Media account introduced by a Optimization Media that actively promoted the Platform. A Lead cannot be a store opened and/or owned by a Optimization Media and for which that partner seeks commissions or compensation pursuant to this Agreement.
1.7. Malware and Spyware
Relates to the use of pop-up banners that hide banners that are displayed on a website, the placement of icons beside keywords found in text that if clicked will take the visitor to another website, and other similar practices.
1.8. Names and Trademarks
Refers to any names and/or trademarks or any other protected marks associated with the Optimization Media service and Optimization Media Corp..
1.9. Opt-in List
Shall mean the list of emails where the individuals on the list have expressly elected to receive e-mails fromOptimization Media Partners.
1.10. Prospective Partners
Refers to any other marketing organizations and/or website owners and/or operators that may be potential partners of Optimization Media.
1.11 App Developer
Shall mean a Optimization Media Partner that develops applications using the Optimization Media Application Programming Interface (“Optimization Media API”) for distribution through the Optimization Media Store.
1.12 Optimization Media API
Refers to the billing program based on the Optimization Media API that allows merchants and Partners to create and issue charges to customers as well as remit payment to Optimization Media.
1.13. Related Entity[ies]
Shall mean any entity that, directly or indirectly, controls, is controlled by, or is under common control with, Optimization Media where “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management policies of another, whether through the ownership of voting securities, by contract, as trustee or executor, or otherwise.
Refers to any Optimization Media associated with websites that are managed by a Optimization Media Partner that currently have or will have a marketing arrangement with Optimization Media.
“Lifetime” refers to the period of time the store is in existence, and/or the period of time the Optimization Media has a partner relationship with the store, and/or the period of time the Optimization Media Partner has an active partner account.
2.0 Responsibilities of the Partner
The Optimization Media will use its best efforts to (a) promote and market Optimization Media and (b) identify for Optimization Media prospective Leads. In no event shall Optimization Media engage in any marketing or promotional activity related to Optimization Media in any area, location, territory or jurisdiction outside of the Territory as defined by Optimization Media from time to time. Optimization Media shall bear all costs and expenses for such activities unless otherwise determined by Shopify, in its sole discretion.
All Creative will be solely provided by Optimization Media except where agreed to by Optimization Media in writing in advance. Optimization Media provide Optimization Media Partner with copies of or access to Creative. The Creative shall be accessible from Optimization Media Partner Program website. The Creative is provided “as is” and without warranty of any kind.
Partners will do their best to promote Optimization Media the creative materials provided by Optimization Media
2.3. Use of Creative
Optimization Media Partner may display Creative on the Websites solely for the purpose of marketing and promoting Optimization Media brands promoted by Optimization Media by Optimization Media Entities during the term of this Agreement, or until such earlier time as Optimization Media , upon reasonable prior notice, instruct Optimization Media to cease displaying the Creative.Optimization Media Partner may not alter, amend, adapt or translate the Creative without Optimization Media prior written consent. Nothing contained in any Creative shall in any way be deemed a representation or warranty of Optimization Media or any of Optimization Media Related Entity. The Creative shall at all times be the sole and exclusive property of Optimization Media and no rights of ownership shall at any time vest with the Optimization Media Partner even in such instances where the partner has been authorized by Optimization Mediato make changes or modifications to the Creative.
2.4. E-Mail Internet Marketing
In no event shall a Optimization Media Partner engage in any e-mail marketing or promotion with respect to Optimization Media and/or any Optimization Media Related Entity except as expressly set forth in this Agreement. In the event that Optimization Media has an Opt-in List, Optimization Media may make a written request to Optimization Media send e-mails regarding the offering of Optimization Media and Optimization Media Related Entities to the individuals on the Opt-in List. In the event Optimization Media approves such request, Optimization Media Partner shall comply with all applicable laws, rules, regulations and directives, including but not limited to those relating to e-mail marketing and “spamming”. Without limiting the generality of the foregoing, Optimization Media Partner shall (a) not send any e-mail regarding Optimization Media/or Optimization Media Entities to any individual or entity that has not requested such information and (b) always include “unsubscribe” information at the top and bottom of any e-mail regarding Optimization Media Related Entities and/or the Optimization Media platform.
In addition to the restrictions of Section 2.4 above, a Optimization Media Partner shall not (a) engage in any fax, broadcast or telemarketing and any other offline marketing methods with respect to Optimization Media. Optimization Media Entities and/or Optimization Media (b) use Malware and/or Spyware techniques or use any other aggressive advertising or marketing methods in any of its dealings relating to Optimization Media, Optimization Media Related Entities and/or Optimization Media; (c) make any false, misleading or disparaging representations or statements with respect to Optimization Media, Optimization Media Related Entities or Optimization Media (d) misrepresent the Optimization Media Partner’s affiliation with Optimization Media; or (e) engage in any other practices which may affect adversely the credibility or reputation of Optimization Media, Optimization Media Related Entities or Optimization Media, including but not limited to, using any Website in any manner, or having any content on any Website, that (i) promotes sexually explicit materials, violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation or age and/or any illegal activities or (ii) violates any intellectual property or other proprietary rights of any third party.
2.6 Prohibited Marketing Activities by a Partner
A Optimization Media Partner shall not purchase search engine or other pay-per-click keywords (such as Google AdWords), or domain names that use Optimization Media or Optimization Media Technologies' trademarks and/or variations and misspellings thereof.
2.7. Compliance with Laws
In addition to, and without limiting the provisions of this Agreement, Optimization Media shall perform its obligations hereunder in accordance with the highest applicable industry standards and in compliance with all applicable laws, rules and regulation
2.8. Partner Duty to Inform
Optimization Media Partner shall promptly inform Optimization Media any information known to Optimization Media Partner related to any Leads or prospective partners that could reasonably lead to a claim, demand or liability of or against Optimization Media and/or the Optimization Media Entities by any third party.
3. Fees and payment
Optimization Media shall be entitled to receive the Fees as set forth below under "Optimization Media Commercial Terms” (the “Fees” and/or the “partner Fees”). The Fees shall be due on a periodic basis in accordance with the date of sign up to the Partner Program. All payments are subject to risk analysis considerations and Anti-Money Laundering procedures. Optimization Media reserves the right to demand and receive information about any Lead and to assess the competency of such Lead for payments. Optimization Media the right to modify the Fee structure and/or the payment terms at any time upon reasonable advance notice to Optimization Media. Optimization Media not be responsible to pay any commissions for a Lead created or owned in whole or in part by a Optimization Media Partner.
Optimization Media may terminate this Agreement at any time, with or without cause, effective immediately upon notice to Optimization Media Partner.
Fraudulent or other unacceptable behaviour as defined by Optimization Media can result in termination of partner/client relationship or termination of partner account entirely without notice to, or recourse for, the Optimization Media Partner.
Optimization Media, can terminate this Agreement at any time, with or without cause, effective immediately upon notice to Optimization Media.
4.2. Consequences of Termination
Upon expiration or termination of this Agreement: (a) each Party shall return to the other Party all property of the other Party in its possession or control (including all Creative and all Confidential Information); (b) Optimization Media shall immediately cease displaying any Creative on any Website or otherwise; and (c) all rights granted to Optimization Media Partner hereunder will immediately cease.
5. Proprietary rights
5.1. Proprietary Rights of Optimization Media
As between Optimization Media Partner and Optimization Media Creative, all demographic and other information relating to Leads, Prospective partners and partners, the Platforms and all software, documentation, hardware, equipment, devices, templates, tools, documents, processes, methodologies, know-how, websites, and any additional intellectual or other property used by or on behalf of or Optimization Media related to Optimization Media, together with all copyrights, trademarks, patents, trade secrets and any other proprietary rights inherent therein and appurtenant thereto (collectively, “Optimization Media Property”) shall be and remain the sole and exclusive property of Optimization Media. To the extent, if any, that ownership of any Optimization Media Property does not automatically vest in Optimization Media by virtue of this Agreement, or otherwise, Optimization Media Partner hereby transfers and assigns to Optimization Media, upon the creation thereof, all rights, title and interest Optimization Media may have in and to such Optimization Media property, including the right to sue and recover for past, present and future violations thereof.
5.2. Optimization Media Trademarks
During the term of this Agreement, Optimization Media hereby grants to Optimization Media with a limited, revocable, non-exclusive and non-transferable license to display the Optimization Media trademarks, solely as necessary to perform Optimization Media Partner’s obligations under this Agreement. Optimization Media Partner acknowledges and agrees that: (a) it will use the Optimization Media trademark only as permitted hereunder; (b) it will use the Optimization Media trademark in a lawful manner and in strict compliance with all format(s), guidelines, standards and other requirements prescribed by Optimization Media; (c) the Optimization Media trademark are and shall remain the sole property of Optimization Media; (d) nothing in this Agreement shall confer in Optimization Media Partner any right of ownership in the Optimization Media trademark and all use thereof by Optimization Media Partner shall inure to the benefit of Optimization Media; and (e) Optimization Media Partner shall not, now or in the future, contest the validity of any Optimization Media trademarks or use any term or mark confusingly similar to any Optimization Media Trademark.
Each Party agrees to use the other Party’s Confidential Information solely as necessary for performing its obligations hereunder. Each Party agrees that it shall take all reasonable steps, at least substantially equivalent to the steps it takes to protect its own proprietary information, to prevent the duplication, disclosure or use of any such Confidential Information, other than (a) by or to its employees, agents and subcontractors who must have access to such Confidential Information to perform such Party’s obligations hereunder, who each shall treat such Confidential Information as provided herein; or (b) as required by any law, regulation, or order of any court of proper jurisdiction over the Parties and the subject matter contained in this Agreement. Confidential Information shall not include any information which is: (i) in the public domain, or is already known by or in the possession of the non-disclosing Party, at the time of disclosure of such information; (ii) is independently developed by the non-disclosing Party without breaching any provisions of this Agreement; or (iii) is thereafter rightly obtained by the non-disclosing Party from a source other than the disclosing Party without breaching any provision of this Agreement.
7. Disclaimer of warranty
Optimization Media makes no warranties hereunder, and Optimization Media expressly disclaims all warranties, express or implied, including, but not limited to, warranties of merchantability and fitness for a particular purpose. Without limiting the foregoing, Optimization Media further disclaims all representations and warranties, express or implied, that the platforms do not infringe or otherwise violate any intellectual property or other proprietary right of any third party in any jurisdiction, including, but not limited to, the territory. Optimization Media Partner understands and agrees that the platforms may not satisfy all of the leads’ requirements and may not be uninterrupted or error-free.
8. Limitation of liability and indemnification
8.1. Limitation of Liability
Optimization shall have no liability with respect to the platforms or its obligations under this agreement or otherwise for any indirect, consequential, exemplary, special, incidental or punitive damages even if Optimization Media has been advised of the possibility of such damages. In any event, Optimization Media’s liability to Optimization Media Partner under this agreement for any reason will be limited to the amounts paid to Partner by Optimization Media during the six (6) month period immediately preceding the event giving rise to the claim for damages. This limitation applies to all causes of action in the aggregate, including, but not limited to, breach of contract, breach of warranty, negligence, strict liability, misrepresentations, and other torts.
8.2.1. Optimization Media Partner Indemnification.
Optimization Media Partner agrees to indemnify, defend and hold harmless Optimization Media and any Optimization Media Related Entities and the directors, officers, employees, subcontractors and agents thereof (collectively, the “Indemnified Party”), with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys’ fees, to the extent that such action is based upon or arises out of: (a) Optimization Media Partner ‘s breach of any representation, warranty, obligation or covenant under this Agreement; (b) Optimization Media Partner’s gross negligence or willful misconduct; or ( c) any warranty, condition, representation, indemnity or guarantee relating to Optimization Media and Optimization Media Related Entities granted by Optimization Media Partner to any Lead, Prospective partner or other third party.
8.2.2. Notice of Indemnification.
In claiming any indemnification hereunder, the Indemnified Party shall promptly provide Optimization Media Partner with written notice of any claim which the Indemnified Party believes falls within the scope of the foregoing paragraphs. The Indemnified Party may, at its own expense, assist in the defense if it so chooses, provided that Optimization Media Partner shall control such defense and all negotiations relative to the settlement of any such claim and further provided that any settlement intended to bind the Indemnified Party shall not be final without the Indemnified Party’s written consent, which shall not be unreasonably withheld.
9. Non-exclusive remedies
In the event (a) Optimization Media Partner markets or promotes Optimization Media and/or any Optimization Media Related Entity that promotes the Optimization Media platform to any person or entity outside of the Territory or (b) of any breach or threatened breach of any provision of Sections 2, 5 and/or 6 above, in addition to all other rights and remedies available to Optimization Media under this Agreement and under applicable law, Optimization Media shall have the right to (i) immediately enjoin all such activity, without the necessity of showing damages or posting bond or other security, (ii) immediately terminate this Agreement and Optimization Media Partner ’s engagement hereunder, (iii) receive a prompt refund of all amounts paid to Optimization Media Partner hereunder and (iv) be indemnified for any losses, damages or liability incurred by Optimization Media in connection with such violation, in accordance with the provisions of Section 8 above.
10. General provisions
10.1. Force Majeure
If the performance of any part of this Agreement by either Party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action (including, but not limited to, any law, regulation or embargo prohibiting the performance contemplated hereunder and/or the failure or refusal of a government agency to issue a license required for any performance pursuant to this Agreement), labor disputes, act of God or any cause beyond the reasonable control of that Party, the Party shall be excused from such performance to the extent that it is prevented, hindered or delayed by such cause. Notwithstanding anything herein to the contrary, the Party prevented from performing hereunder by a force majeure event shall nevertheless use its best efforts to recommence its performance hereunder as soon as reasonably practicable and to mitigate any damages resulting from its non-performance hereunder.
10.2. Independent Contractors
The Parties to this Agreement are independent contractors. Neither Party is an agent, representative or Related Entity of the other Party. Neither Party shall have any right, power or authority to enter into any agreement for, or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other Party. This Agreement shall not be interpreted or construed to create an association, agency, joint venture or partnership between the Parties or to impose any liability attributable to such a relationship upon either Party.
Any notice, approval, request, authorization, direction or other communication under this Agreement shall be given in writing and shall be deemed to have been delivered and given for all purposes (a) on the delivery date if delivered personally or by e-mail to the Party to which the same is directed; (b) two (2) business days after deposit with an internationally recognized commercial overnight courier service, with written verification of receipt; or (c) five (5) business days after deposit in certified or registered mail, return receipt requested, postage and charges prepaid, to the respective addresses of the Parties as set forth on the Registration Page.
10.4. No Waiver
The failure of either Party to insist upon or enforce strict performance by the other Party of any provision of this Agreement or to exercise any right under this Agreement shall not be construed as a waiver or relinquishment to any extent of such Party’s right to assert or rely upon any such provision or right in that or any other instance; rather, the same shall be and remain in full force and effect. Each waiver shall be set forth in a written instrument signed by the waiving Party.
10.5. Entire Agreement
This Agreement, including all Exhibits hereto, sets forth the entire agreement and supersedes any and all prior agreements, written or oral, of the Parties with respect to the subject matter hereof as set forth herein. Neither Party shall be bound by, and each Party specifically objects to, any term, condition or other provision that is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement) and which is proffered by the other Party in any correspondence or other document, unless the Party to be bound thereby specifically agrees to such provision in writing.
All the terms and provisions of this Agreement shall be binding upon and inure to the benefit of the Parties to this Agreement and to their respective heirs, successors, assigns and legal representatives. Optimization Media Partner shall have no right to assign or otherwise transfer this Agreement, or any of its rights or obligations hereunder, to any third party without Optimization Media’s prior written consent, to be given or withheld in Optimization Media’s sole discretion.
10.7. Applicable Laws
This Agreement shall be governed, construed and enforced in accordance with the laws of the Province of Ontario, Canada. Each Party agrees that any legal action, proceeding, controversy or claim between the Parties arising out of or relating to this Agreement may be brought and prosecuted only in a court of law in the Province of Ontario, Canada, and by execution of this Agreement each Party hereto submits to the exclusive jurisdiction of such court and waives any objection it might have based upon improper venue or inconvenient forum.
By marking the 'I have read and agree to the terms and conditions' checkbox, Optimization Media Partner hereby fully agrees with all terms and provisions.
11. Optimization Media Partner Commercial Terms
11.1. Revenue Sharing Plans
All Fees payable to a Shopify Partner will be calculated based on either the Reference Plan or the App Plan (as defined below), whichever applicable.
The “Reference Plan” is a revenue sharing plan applicable where a Optimization Media Partner introduces Optimization Media to a Lead. Under the Reference Plan, such Optimization Media Partner is entitled to twenty-five percent (25%) of the total revenue received by Optimization Media from such client, with Optimization Media being entitled to the remaining seventy-fice percent (75%).
The “App Plan” is a revenue sharing plan (together with the Reference Plan, the “Revenue Sharing Plans”) which allocates revenue between Optimization Media and a Optimization Media Partner who has been selected to have their app sold through Optimization Media (the “Select Apps”). Under the App Plan, a Optimization Media Partner is entitled to twenty-five percent (25%) of the total revenues received by Optimization Media from the sale of such Select Apps, with Optimization Media being entitled to the remaining seventy-five percent (75%).
11.2. Payment Under Plans
For Optimization Media Partners and App Developers that utilize the Optimization Media Billing API, payments due under the Reference Plan and App Plan will be distributed to the Optimization Media Partner twice per month (the “Payment Period”) via the Optimization Media Billing API. If the account balance of a Optimization Media Partner is less than USD$25 at the end of the Payment Period, such funds will remain in the account until the end of the first Payment Period in which the account has USD$25 or more.
Optimization Media Partners and App Developers that do not utilize the Optimization Media Billing API shall submit payments due under the Reference Plan or App Plan to Optimization Media monthly by way of wire transfer. The Optimization Media Partner is responsible for contacting email@example.com to obtain the necessary banking information to execute the transfer. If the balance owed to Optimization Media is less than USD $1,000, the Optimization Media Partner may defer payment until the outstanding balance at the end of a payment period is USD $1,000 or more.
Notwithstanding the definition of Reference Plan in 11.1, Optimization Media shall not be responsible to pay any commissions for a Lead created or owned in whole or in part by a Optimization Media Partner.
Optimization Media reserves the right to cancel or modify the Optimization Media Partner Program Agreement in its entirety, including Fees & Payments and the Optimization Media Partner Commercial Terms, upon 60 days’ notice to a Optimization Media Partner.
11.3. Reporting and Audit
App Developers that do not utilize the Shopify Billing API shall submit to Shopify a report indicating total revenues per quarter, within 30 days following the end of the App Developer’s fiscal quarter.
Optimization Media shall have the right to appoint an independent auditor approved by App Developer, such approval not to be unreasonably withheld, under appropriate non-disclosure conditions, to audit App Developer’s records to confirm App Developers’s compliance with this Agreement. Any independent auditor appointed by Optimization Media shall provide App Developer with a report (along with supporting documentation) indicating the amount by which App Developer has overstated or understated the payments due by App Developer and a report on any other failures by App Developer to fulfill its obligations under the Agreement. Prompt adjustment shall be made by the proper party to compensate for any overpayments or underpayments disclosed by any such audit. Shopify shall bear all of the costs of any such audit, unless such audit reveals underpayment by more than five percent (5%) for the audited period, in which case, App Developer shall reimburse Optimization Media for all of the reasonable costs of such audit. In addition to the foregoing audit rights, Optimization Media shall also have the right to use the capabilities of the Service to confirm the number of Apps sold by the App Developer.
12. Use of API and App store
12.1 Use of API and App Store
Optimization Media Partners are permitted to develop applications for Optimization Media merchants using the Optimization Media API (“Apps’”) to be distributed and/or sold in the Optimization Media App Store or on a third-party website. Optimization Media retains the right to remove an App from the Optimization Media App Store at any time.
App Developers are prohibited from bypassing Optimization Media API restrictions to automate administrative functions of the Optimization Media dashboard.
12.2 Optimization Media Trademarks
Notwithstanding section 5.2, App Developers shall not use any Optimization Media trademark including the shopping bag logo, the mark “Optimization Media,” or variation of the word “Optimization Media,” in the name or design of an App unless granted express permission by Optimization Media Corp.
App Developers may refer to Optimization Media and the Service in the promotion of the App for the sole purpose of letting customers know that the App is compatible with the Service.
12.3 Non-Solicitation of Reviews
App Developers are prohibited from soliciting reviews of an App on the Optimization Media App Store by offering a financial incentive, access to App functionality, or any other benefit to an App customer in exchange for the review.
13. Additional considerations
As a courtesy please be advised that the Federal Trade Commission in the United States (“FTC”) has guidelines for governing endorsements and testimonials. These rules are aimed at increasing transparency between endorsers and consumers. As members of the Partner Program with Optimization Media you receive compensation for the affiliate referrals you make to the company. This may establish a “material connection” according to FTC rules, which creates an obligation to provide disclosure to your consumers.
Full compliance with these guidelines requires that information be provided to your consumers clearly and conspicuously, outlining that you are being compensated for referring clients to Optimization Media . For further information you may refer to the statement released by the FTC regarding these guidelines.
United States Provisional Patent Application No. 62/072,142. Optimization Media ™.
First Data Corporation. All rights reserved. All trademarks, service marks and trade names referenced in this material are the property of their respective owners. Ignite Payments is a registered DBA of First Data Canada Ltd. First Data Canada Ltd. is a registered ISO/MSP of Wells Fargo Bank, N.A., Canadian Branch, Toronto, ON, Canada. Optimization Media Corp. is also a Moneris acquiring payment partner, Canadian Branch, Toronto, ON, Canada.