Publisher Terms of Service

1. General

1.1 These Terms of Service set out the terms and conditions in which Kutoku Ltd. (a company registered in Canada at PO Box 88174, Rabbit Hill PO, T6R 0M5 Edmonton, Canada) (“Kutoku”) provides the Service to you, the Publisher.

1.2 By signing this document you confirm that either:

(a) you are a Publisher intending to enter into the Agreement with Kutoku 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 authorizations by the Publisher to agree to comply with the Terms of Use and to enter into the Agreement with Kutoku, in each case on behalf of the Publisher.

2. Definitions

2.1 In these Terms of Service, the following expressions have the following meanings:

3. The Service

3.1 Kutoku may approve or reject an application to register for the Service at its entire discretion. If Kutoku decides to reject an application, it is not obliged to provide the Publisher with its reasons for doing so. If Kutoku 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 Publisher’s website and use off-site on their associated properties (e.g. social media and newsletter).

3.3 If the Publisher wishes to use the Service in relation to any additional or alternative website(s) then the Publisher may request that such website(s) are added to its registration (an “Additional Domain Request”). Kutoku may approve or reject each Additional Domain Request at its entire discretion. If Kutoku decides to reject an Additional Domain Request, it is not obliged to provide the Publisher with its reasons for doing so. If Kutoku 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).

4. Merchants

4.1 The Publisher acknowledges and agrees that:

4.1.1 Kutoku 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 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;

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, and it is the Publisher’s responsibility to check that the Publisher is up to date with such changes; and

5. Revenue

5.1 Kutoku and the Publisher shall share Total Revenue generated from the use of the Affiliate Network and actually received from a Merchant 75% to the Publisher.

5.2 The calculation of Total Revenue shall be performed by the relevant Merchant or Affiliate Network, and communicated to Kutoku. The Publisher acknowledges that:

5.2.1 Merchants use different percentage based Total Revenue structures;

5.2.2  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;

5.2.3 a sale of goods and/or services by a Merchant may follow two or more referrals from a User across different marketing channels and the Merchant may not pay a Total Revenue to Kutoku if a referral using a different marketing channel was made more recently than the Publisher’s referral; and

5.2.4 where Merchants participate in more than one affiliate program and both or all affiliate programs are with Affiliate Networks participating in the Service, Kutoku 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.

5.3 The calculation of Total Revenue and Publisher Revenue shall be performed by Kutoku.

6. Payment Terms

6.1 Kutoku will pay the Publisher the Publisher Revenue for a given calendar month, minus any Chargebacks made in accordance with clause 9 and any pending payments from Merchants and/or Affiliate Networks no later than 92 days after the end of that calendar month.

6.2 Payments will be made via ACH to a bank account of the Publisher’s choosing. Kutoku 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.

7. Chargebacks

7.1 A Merchant may require Kutoku (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.

7.2 In the event of a Chargeback, the Publisher’s sales figure available on the Total Revenue will be reduced accordingly. The Publisher acknowledges and accepts that information regarding individual Chargebacks is not available and that a Publisher has no right to appeal or otherwise challenge a Chargeback.

7.3 The Publisher acknowledges and agrees that Total Revenue remains subject to Chargebacks, and is therefore conditional, even after it has been paid to Kutoku or the Publisher.

8. Service Availability

8.1 Kutoku will use its reasonable endeavors to ensure that the Service works for use by the Publisher, but gives no warranty that the Service will achieve any minimum availability or response targets.

8.2 The Publisher agrees to notify Kutoku promptly of any Service availability or performance issues via e-mail (to nick@kutoku.com). Kutoku will use reasonable endeavors to correct any reported issues as soon as reasonably practicable.

9. Content Guidelines

9.1 Kutoku does not allow publishers with the following types of content to use the Service:

• Violent or hateful content
• Content that promotes illegal activity

9.2 Publisher agrees that they will not engage in the following behavior while using the Service:

9.2.1 Use search engine marketing in order to bid on merchant’s brand terms and generate affiliate revenues through Kutoku.

9.2.2 Alter through redirection or other means the http referrer.

9.2.3 Generate impressions, clicks, or transactions through any means other than those initiated by end users.

9.2.4 Use a domain name containing merchant names, brands or trademarks.

9.2.5 Operate multiple accounts without express written consent from Kutoku.

9.2.6 Engage in ‘direct linking’.

9.3 Kutoku reserves the right to deny any prospective publisher found to be engaging in the above activities from the Service.

9.4 In the case of a publisher already accepted into the publisher network, should they be found to be engaging in prohibited activities, Kutoku reserves the right to suspend or terminate their account at any time, without compensation and in its sole discretion.

10. Service Suspension

10.1 If Kutoku 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, Kutoku may:

10.1.1 request the Publisher either to remedy the breach or other default within such time scale as Kutoku may reasonably require; or

10.1.2 if Kutoku in its discretion considers that the breach or other default is sufficiently serious, or if the Publisher has failed to respond to Kutoku request under clause 10.1.1 to Kutoku 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, Kutoku 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 Kutoku to reinstate the Publisher’s access to the Service.

10.3 Kutoku 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, Kutoku has carried out tests or otherwise satisfied that such breach or other default has in fact been remedied or rectified.

11. Term and Termination of the Agreement

11.1 The Agreement will commence when Kutoku 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 Kutoku should be sent to nick@kutoku.com. Notices to the Publisher will be sent to the email address provided by the Publisher.

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 debts; or

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 five (5) 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 Kutoku Tools from the Publisher’s website(s), and promptly return to Kutoku, or at Kutoku’s 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 Kutoku 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, Kutoku 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.

12. 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 Kutoku, including all developments or enhancements to the Service (or any part thereof). Subject to clause 13.2, the Publisher agrees that the Agreement does not transfer or grant any right, title or interest in Kutoku’s intellectual property rights in the Service (or any part thereof) to the Publisher.

12.2 Kutoku 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.

13. Assignment

The Publisher may not assign or otherwise transfer its rights and/or obligations under the Agreement, whether in whole or in part.

14. Communication

14.1 Any notice under the Agreement shall be in writing and shall be made via e-mail.

14.2 Kutoku 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 Kutoku may use the Publisher’s contact details (including its email and registered address) to notify it about its account with Kutoku, any issues relating to, and updates to, the Service, and any modifications to the terms of the Agreement.

15. Modifications

Kutoku may modify all or any part of this Agreement, at any time and at its sole discretion, effective immediately upon notice via email. Continued participation in the Service after receiving notice of such modification will constitute the Publisher’s unconditional acceptance of the modification to this Agreement.

16. Indemnity

The Publisher shall indemnify, defend and hold harmless Kutoku against all losses, liabilities, damages and costs (including legal expenses) sustained, incurred or suffered by Kutoku 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.

17. 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), Kutoku makes no express or implied warranties or representations with respect to the operation or availability of the Service. Kutoku will not be liable for the consequences of any interruptions to or errors in the Service.

17.2 Kutoku 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, Kutoku’s 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 Kutoku’s 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.

18. 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).

19. 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.

20. Governing Law and Jurisdiction

The Agreement shall be governed by, and construed in accordance with, the laws of Alberta, Canada. In relation to any legal action or proceedings to enforce the Agreement or arising out of or in connection with the Agreement each of the parties irrevocably submits to the non-exclusive jurisdiction of the courts of Alberta, Canada.