CLAUSE 1: Definitions and Interpretation
Openmind.ph is the owner and manager of the E-Commerce Website Page, on which Openmind.ph and other third parties (marketplace sellers) are offering products (courses, e-books, etc.) and services (seminars, live events, etc.).
The website and the application on which Openmind.ph or third parties (marketplace sellers) offer to sell, sell and distribute products/goods and/or services.
Openmind.ph’s Affiliate Platform
The online Platform is provided by Openmind.ph, which enables the Affiliate to participate in the Openmind.ph Affiliate Program and provides the Affiliate with statistical and financial information via Openmind.ph’s Affiliate Platform, the Affiliate is able to find all the necessary information and materials, including: Affiliate’s performance, retrieve advertising materials, access to Affiliate’s amount of commission.
Any person who is entitled to publish Openmind.ph’s Advertising Materials via Affiliate’s Media.
Affiliate’s Media means all advertising media, including but not limited to website, application and newsletter, Affiliate networks' Sub Affiliates, their own social media network whether or not registered to the Affiliate Program by the Affiliate and approved by Openmind.ph.
An entity or an individual who participates in the Affiliate Program through the Affiliate.
Openmind.ph’s affiliate program that offers to sell products (courses, e-books, etc.) and services (seminars, live events, etc.) to Customers via Hyperlinks on the Affiliate’s Media.
The fee received by an Affiliate for making a sale or an agreed action excluding chargeback.
A consumer who accesses the Advertising Media of the Affiliate or the Openmind.ph’s Product, and places an order.
A link to the Openmind.ph’s Product in the form of the exact URL, provided via the Affiliate Program, for use by the Affiliate in the Affiliate’s Media (e.g. registered websites), that identifies the Affiliate.
The act of purchasing a product or service by one of Openmind.ph’s customers via the Hyperlink. This starts from the moment an order was placed by the customer, payments made, product delivery and even includes the seven (7) day period for refund.
SEM (Search Engine Marketing)
The acronym which means search engine marketing and includes any form of online marketing that seeks to promote websites by increasing their visibility in search engine result pages through the use of paid placement, contextual advertising or paid inclusion.
SEO (Search Engine Optimization)
The acronym which means search engine optimization and includes the process of (i) improving the volume or quality of traffic to a website or a web page from search engines via "natural" or un-paid ("organic" or "algorithmic") search results, or (ii) realizing or creating an improved or better ranking in search engine results for a specific keyword or keywords.
Including but not limited to banner, pop-up or any product information shown in equivalent forms.
The Sign-up form that is accessible via the Affiliate Program for registration to the Affiliate Program.
View (or impression)
The number of times which an advertisement is shown on the Advertising Media.
CLAUSE 2: CONTRACT FORMATION
An agreement between Openmind.ph and the Affiliate in respect of the placement of Openmind.ph advertising materials shall be formed exclusively via Openmind.ph platform's application procedure, in the context of which the Affiliate shall submit an application to participate in the Affiliate Program, thereby accepting the terms and conditions of this Agreement.
The Sign-Up Form together with this Agreement and the acceptance into the program will together constitute a framework agreement between Openmind.ph and the Affiliate. In the case of a conflict between the Sign-Up Form and this Agreement, this Agreement shall be the governing document.
CLAUSE 3. SCOPE OF WORK
- Scope of work shall be the participation in the Affiliate Program and promotion for Openmind.ph by the Affiliate as an Affiliate in the context of Openmind.ph’s Affiliate Platform. To this end, Openmind.ph shall make a selection of Advertising Materials available to the Affiliate as an advertiser via the Openmind.ph’s Affiliate Platform.
- The Affiliate shall be solely responsible for placing Advertising Materials on Affiliate’s Media registered in the Openmind.ph Affiliate Program. Subject to Openmind.ph’s rights under this Agreement or otherwise, the Affiliate shall be free to decide whether and how long to place the Openmind.ph advertising materials on the Affiliate’s Media, unless otherwise required by Openmind.ph. The Affiliate shall be entitled to remove the Advertising Materials at any time. The Affiliate is only allowed to place Openmind.ph advertising materials on the Advertising Media provided that such Advertising Media has been registered with and approved by Openmind.ph.
- In return for every successful sale, the Affiliate shall receive from Openmind.ph the Commission, which shall depend on the extent and real net value of the service.
- The Affiliate Program shall not establish any other contractual relationship between the Parties that goes beyond this Agreement.
- The Affiliate's own terms and conditions shall require the express written consent of Openmind.ph and shall therefore not be applicable even if Openmind.ph does not object to their validity.
CLAUSE 4: OBLIGATIONS AND COVENANTS OF THE AFFILIATE
- The Affiliate shall be expressly prohibited from using and/or modifying the Advertising Materials and content accessed via the Openmind.ph’s Affiliate Platform other than as expressly allowed under the terms of this Contract without Openmind.ph’s prior written consent.
- The Affiliate shall not, without prior written consent by Openmind.ph, be allowed to use advertising e-mails (the “EDM”) to promote Openmind.ph. The Affiliate has to make sure that all e-mail address were generated over a double opt-in e-mail, in consideration of all necessary restrictions. Openmind.ph will be free of all third-party requirements in case of issues because of the mailing Affiliate. The Affiliate guarantees that they take responsibility in case of complaints concerning the e-mail. The Affiliate is not allowed to use the brand “Openmind.ph” within the e-mail address, within the URL, within the source code, and within the subject of the e-mail. The Affiliate has to make sure that it is clear that the e-mail comes from an Affiliate and not from Openmind.ph directly. The e-mail has to be approved by Openmind.ph before it is sent. The Affiliate has to compensate the costs in case of breach of third party requirements or breach of the above restrictions.
- The Affiliate shall be solely responsible for the content and routine operation of the Affiliate’s Media or other relevant Affiliate Media, and shall, for the term of this Agreement, place no content on said Affiliate Media that breaches applicable law, public morals or third-party rights (“Non-Permitted Traffic and Sources”). Prohibitions shall include, but not be limited to, representations that glorify or promote hate, violence, sexual and pornographic content and illustrations, misleading statements or discriminatory content (e.g. in respect of gender, race, politics, religion, nationality or disability). Such content may neither be mentioned on the Affiliate’s Media or other relevant advertising media, nor may links be created from the Affiliate’s Media or other relevant advertising media to corresponding content on other websites.
- The Affiliate’s Media or other relevant advertising media shall not conduct, undertake, use, perform or exercise deal, torrent or streaming activities without Openmind.ph’s prior consent.
- The Affiliate shall be prohibited from creating and/or maintaining websites/apps that might lead to risk of confusion with the web/mobile presence of Openmind.ph. The Affiliate shall neither be allowed to mirror said presence nor to copy graphics, texts or other content from Openmind.ph website. It is strictly prohibited to crawl any of Openmind.ph’s webpages. In particular, the Affiliate shall avoid creating the impression whether publicly or privately that the Affiliate’s Website is a project of Openmind.ph or that its operator is linked to Openmind.ph in any way or any other relationship or affiliation between the Affiliate and Openmind.ph that goes beyond the Openmind.ph Affiliate Program and this Agreement. Any use, by the Affiliate, of materials or content from Openmind.ph web presence or its logos or brands shall require Openmind.ph prior written consent.
- Advertising Openmind.ph through social media activities (including but not limited to Facebook, Instagram, Twitter, etc.) is granted upon request and should not include any trademarks, trade name, business name, collective marks and/or service mark of Openmind.ph, or display misleading content and/or confusingly similar to the marks used by openmind.ph (i.e. that may look like official Openmind.ph social media activities). Social media activities through Facebook platform shall be executed through a “Fan Page” only and not through a “Personal Page” in accordance with Facebook’s policy. Inclusion of hyperlinks for every social media post is required unless done in a platform where doing so would not be possible. Posting of hyperlinks through Openmind.ph’s Official Facebook pages is strictly prohibited. In case of a violation, a 30% deduction will be applied to the affiliate’s next payout. Should the violation be repeated, the affiliate will be blocked from the Openmind.ph Affiliate Program.
- The Affiliate shall not set up campaigns on third party Affiliate Networks. The Affiliate is only allowed to direct its own traffic and/or its own Sub Affiliate traffic in case of networks, to the Openmind.ph‘s Product.
- The Affiliate shall warrant that it will set cookies only if advertising material made available by the Openmind.ph Affiliate Program is in visible use on the Affiliate’s Website and the user clicks voluntarily and consciously. The use of layers, add-ons, iFrames, pop-up, pop-under, site-under, Auto-redirect advertisements which automatically redirect the user to Advertiser websites without the user’s engagement or action (e.g. click, touch), cookie dropping, postview technology, misleading advertisements that result in misleading clicks that display expected content, shall not be permitted and are strictly prohibited. In particular for Apps campaigns, advertisements that result in forced installations of Advertiser applications. For clarification purposes, forced-installation also includes the act of not asking the Users for permission before initiating a download/ redirect.
- The use of offers, creative or brand names for any case of competition or lottery is strictly prohibited.
- The Affiliate may promote solely vouchers that Openmind.ph has approved explicitly for affiliates or communicated by means of Affiliate newsletters. The promotion of other vouchers, including but not limited to end customer newsletters, print advertisements or customer service contacts, shall not be permitted and strictly prohibited.
- Any breach, by the Affiliate, of its obligations stipulated in this Agreement or any other industrial property rights or copyrights of Openmind.ph shall entitle Openmind.ph to terminate this Agreement for good cause in accordance with the statutory provisions. This shall not affect any additional claims against the Affiliate to which Openmind.ph is entitled. In particular, Openmind.ph shall be entitled to withhold or cease all and any services related to said Affiliate.
- The Affiliate shall remove Openmind.ph advertising material without delay from the Affiliate’s Website in case Openmind.ph requests it to do so.
- If Openmind.ph is sued by third parties on account of the Affiliate's breach of contractual obligations or on account of the Affiliate's violation of a statutory provision in relation to the placement of Openmind.ph advertising material, the Affiliate shall be obliged to indemnify Openmind.ph against all third-party claims that are asserted on account of the aforementioned breaches. If, for its legal defense, Openmind.ph requires the Affiliate to provide information or explanation, the Affiliate is be oblige to make the same available to Openmind.ph within three (3) days from the time of request and also to provide reasonable support to Openmind.ph in its legal defense.
- In addition, the Affiliate shall compensate Openmind.ph for any costs resulting from a claim by third parties on account of the infringement of the aforementioned rights and/or obligations; such costs shall, for example, include lawyers' fees, court or other dispute resolution costs, particularly costs of independent proceedings for taking evidence, damages and other disadvantages that Openmind.ph suffers thereby.
- The Affiliate covenants that it has and will maintain all licenses, permits, approvals, registrations or the like, to perform the matters contemplated under this Agreement and that it shall carry out this Agreement in compliance with relevant law of Philippines, particularly the Law on Advertisement, its guiding legislation and legal provisions on data privacy.
- In the event of a breach, Openmind.ph reserves the right to deem as chargeback: (i) any pending payment owed to the Affiliate, (ii) the total amount of the payout for the period when the breach was found, (iii) any future payout earned by the affiliate proven to have originated from the breach or violation.
- The Affiliate shall register each of its Sub-Affiliates with Openmind.ph. The Affiliate acknowledges that by allowing its Sub-Affiliates to participate in the Affiliate Program, the Affiliate shall procure that such Sub-Affiliate shall be bound by the terms and conditions of Openmind.ph’s Affiliate Program. In the case of a violation originated by an identified Affiliate network’s Sub Affiliate, an additional chargeback can be applied equivalent to 30% of the Sub Affiliate payout.
CLAUSE 5: SERVICES BY Openmind.ph
- Once the Affiliate has been admitted to the Openmind.ph Affiliate Program, it shall be provided with a wide range of advertising materials, which shall be adapted at regular intervals in line with the product range and seasonal influences. The Affiliate may request individual provision of formats or newsletter templates from Openmind.ph at any time.
- Openmind.ph shall operate its website and the services offered thereon, such as the provision of product feed, within the limits of the technical capacities available to Openmind.ph. Openmind.ph shall not be obliged, within these limits, to provide error-free and interruption-free availability of the website. The quality and correctness of the products, advertising material and csv files offered on the Openmind.ph’s Affiliate platform shall fall within the exclusive discretion of Openmind.ph.
- All activities of the Affiliate shall be logged thru the platform tracking system and made accessible to the Affiliate thru the platform statistics and reports. The commission that Openmind.ph pays to the Affiliate shall be based on the sales made.
CLAUSE 6: LIABILITY OF Openmind.ph
- In the event of an ordinarily negligent breach of an obligation which is material to the achievement of the contractual purpose (material contractual obligation), the liability of Openmind.ph shall not exceed the total of the commissions paid or payable to the Affiliate under this Agreement in the six months immediately prior to when the event giving rise to the most recent claim of liability occurred.
- No further liability on the part of Openmind.ph shall exist.
- The aforementioned limitation of liability shall also apply to the personal liability of Openmind.ph employees, representatives and executive bodies.
CLAUSE 7: AFFILIATE COMMISSION FOR TRANSACTION GENERATED FROM Openmind.ph WEBSITE
- Openmind.ph agrees to pay a commission on sales generated on Openmind.ph’s website, by the traffic coming from the Affiliate’s Website. In order to reward best performing affiliates, Openmind.ph has put in place a category-based commission structure for transactions generated from Openmind.ph’s Affiliate platform.
- Without prejudice to other rights or remedies available to Openmind.ph, Openmind.ph has the right to withhold, and the Affiliate agrees that it shall not be eligible for, any commission otherwise payable under this Agreement if Openmind.ph determines that the Affiliate is not in compliance with any requirement or restriction under this Agreement.
CLAUSE 8: TRACKING METHODOLOGY
- Openmind.ph and the Affiliate agree that tracking and reporting are being carried out by Openmind.ph’s Affiliate Platform by which a cookie is dropped on the user’s browser to track transaction back to each specific affiliate and by which the device ID is used to track transactions generated from Openmind.ph app.
- Openmind.ph attributes a browser transaction to the Affiliate which is in the last position of the click chain.
- Cookie will last for 90 days for web campaigns.
- In the event that a transaction is not tracked Openmind.ph shall have the right to track the volume of transactions attributed to the Affiliate based on Openmind.ph’s own data.
CLAUSE 10: PAYMENT
- Affiliate can login into the Openmind.ph’s Affiliate Platform to view their accumulated commission instantly after conversions are made and a first payment check has been performed. When requested by the Affiliate and deemed necessary, a technical integration can be established between Openmind.ph’s Affiliate Platform and the Affiliate’s system. In the event of any discrepancy of data between the platform of Openmind.ph and the Affiliate, Openmind.ph’s data shall prevail. Under no circumstances will data from the Affiliate’s system be used to measure payable amount. The Affiliate shall provide Openmind.ph with a substantive response (i.e. a response which is more than a holding email) on all queries that Openmind.ph may have regarding the validity of a Sale, within three (3) working days of the Affiliate’s receipt of such query. Failure to respond on such query will result in no pay-out in relation to that Sale.
- Affiliate will be able to request a payout (7) days after payment has been made by the customer provided, that the said customer did not avail a refund.
- Openmind.ph is solely responsible for all incurred financial institution processing fees, except that Openmind.ph reserves the right to deduct from the payout to the Affiliate, additional processing fees incurred due to incorrect information supplied by the Affiliate.
- The Affiliate shall be solely responsible for payment of all taxes on its own income. If the payment is subject to withholding taxes, Openmind.ph shall deduct such from the payment, pay to the Affiliate the net amount and upon request by the Affiliate, Openmind.ph shall provide the Affiliate a certificate or any equivalent document of the taxes withheld.
CLAUSE 11: ORGANIZATION AND INDEPENDENCE OF THE AFFILIATE
- Openmind.ph and the Affiliate are independent contractors, and nothing in this agreement will create any partnership, joint venture, agency, franchise or sales representative relationship between the Parties. The Seller will have no authority to make or accept any offers or representations on behalf of Openmind.ph.
- The Affiliate shall not subcontract any of its rights or obligations under this agreement without prior written consent of Openmind.ph.
CLAUSE 12: TERMS OF AGREEMENT, AMENDMENT AND TERMINATION
- The term of this Agreement shall be based on the duration of the Affiliate's membership of the Openmind.ph Affiliate Program.
- Following termination of the contract, the Affiliate shall, without being requested to do so, immediately delete the information and advertising material submitted to it. The Affiliate shall have no right of retention in this respect. The Affiliate shall provide Openmind.ph with written confirmation of the deletion.
- Openmind.ph reserves the right to change or alter the purposed commission structure with prior notification. In such a case, an e-mail shall be sent to the Affiliate, based on the e-mail address provided by the Affiliate through the Openmind.ph Affiliate Program. Notification shall occur at within seven (7) days from the change. Openmind.ph shall have no responsibility to ensure that communications about changes in the program are received by the Affiliate. In case of disagreement, the Affiliate’s sole recourse shall be to end its participation in the program.
- Openmind.ph shall reserve the right to amend these General Terms and Conditions at any time. The Affiliate shall be informed of any changes thru registered e-mail. Should the Affiliate not agree to the changes, he shall be entitled to inform Openmind.ph within seven (7) days after receipt of the notification of the change. If the Affiliate does not provide such notification within this period, the changes shall be deemed to have been accepted and shall take effect at the end of the period.
- This Agreement shall be terminated in the following circumtances:
- Both parties agree to terminate the Agreement.
- Required by law.
- The Affiliate has not been engaged (i.e., bringing traffic) for a period of six (6) months.
- Openmind.ph reserves the right to unilaterally terminate this Agreement after four (4) weeks prior notice to the Affiliate.
- Openmind.ph reserves the right to terminate this Agreement without any prior notice to in case the Affiliate breaches or violates any of its obligations or covenants under this Agreement.
- Openmind.ph reserves the right to withhold unpaid commissions for a reasonable period of time following termination to ensure that the correct amount is paid to the Affiliate, such as whether chargebacks apply.
- Upon termination of this Agreement, all rights and obligations of the Parties will be extinguished, except for matters that expressly or by their nature are intended to survive.
CLAUSE 13: CONFIDENTIALITY
- Confidential information shall be any information and documents belonging to the respective other Party that has been marked as confidential or can be regarded as confidential based on the circumstances. This shall include but not limited to:
- Any marketing strategies, plans, financial information, or projections, operations, sales estimates and business plans relating to the past, present or future business activities of such party;
- Any past or present performance results, including orders and volume;
- Any plan and strategies for expansion;
- Any products or services, customers lists;
- Any specific or technical information, invention, design, process, procedure, formula, improvement, technology or method;
- Any concepts, reports, data, know-how, works-in-progress, designs, development tools, specifications, computer software, source code, object code, follow charts, databases, inventions, information and trade secrets;
- Any other information that should be reasonably recognized as confidential information of disclosing party. Confidential information need not be novel, unique, patentable, and copyrightable or constitute a trade secret in order to be designated Confidential Information.
- None of the Parties has the right to reveal the confidential information to third parties in case getting written approval from the non-disclosing Party. The Affiliate shall disclose confidential information only to those employees for the purpose of implementing this Agreement, and not for any other purposes. The Affiliate shall oblige said employees to maintain secrecy in respect of the confidential information during and after their activity.
- Notwithstanding the foregoing, the confidential information could be disclosed due to the following reasons:
a. To comply with the mandatory provisions of applicable law or the rules of any recognized jurisdiction;
b. The information is in the public domain, other than through a breach of this clause;
c. For the purposes of any arbitration or legal proceedings arising from this Agreement; and
d. To any governmental authority at their request.
- The duty of non-disclosure shall apply for an unlimited period beyond the term of this Agreement.
CLAUSE 14: GOVERNING LAWS AND DISPUTE SETTLEMENT
- 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.
- Any disputes arising out of or relating to the execution of this Agreement or the breach, termination, or invalidity thereof shall be attempted to be settled through good faith negotiations between the Parties during a period of up to thirty (30) days or such longer period to which the Parties may agree but not otherwise.
- After the lapse of the period stated in the immediately preceding paragraph, the disputes arising out of or relating to the execution of this Agreement or the breach, termination, or invalidity thereof, shall be settled by arbitration in accordance with the Alternative Dispute Resolution Act of 2004 (or R.A. No. 9285). In the event that the dispute has not been resolved by arbitration within sixty (60) days of initiating said procedure or if a party elects not to undergo such procedure, either party may bring the matter to the proper courts of Quezon City, to the exclusion of all other courts.
CLAUSE 16: FINAL PROVISIONS
- This Agreement shall take effect upon acceptance of this agreement by clicking the "ACCEPT" button below.
- There shall be no oral ancillary agreements to this Agreement. Amendments and addenda to the Agreement shall be in writing. This shall also apply to the amendment or rescission of this clause.
- Any subsequent Insertion Order and other agreements entered into after the effective date shall be an integral part of this Agreement and governed by all terms and conditions herein.
- Should individual provisions in this Agreement be invalid or unenforceable, this shall not affect the validity of the other provisions. The Parties shall endeavor to replace the invalid or unenforceable provision with one that best meets the contractual objective in legal and economic terms.
If this Agreement is being agreed to be a company or entity, then the person signing for and on behalf of that company or entity represents that he or she is authorized to legally bind that company or entity to this Agreement.
Should you have any queries, please do not hesitate to contact the Openmind.ph Affiliate Team at the following address: affiliate@Openmind.ph