The Spanish version of the Operating Agreement is the final version for all legal purposes. English translation is available for informational purposes.
Effective from November 05, 2020
This Collaborators Programme Operating Agreement (the "Operating Agreement") contains the terms and conditions that govern your participation in the Top3 Magazine Collaborators Programme (the "Programme").
"We", "us", "our", "our" or "Magazine" refers to the sole owner and administrator of the website top3magazine.com (hereinafter the 'Site'), that is, Luis Moreno Moya, of legal age, residing at Carrer Torrent d'en Vidalet 54, DNI / NIF no. 38136267J, in its own name and representation.
"You", "your", "your" means the applicant, any person or entity that participates or attempts to participate in our Programme.
By checking the box indicating your acceptance of the terms and conditions of this Operating Agreement,
IN ADDITION, IF THIS OPERATING AGREEMENT IS BEING AGREED TO BY A COMPANY OR OTHER LEGAL ENTITY, THEN THE PERSON AGREEING TO THIS OPERATING AGREEMENT ON BEHALF OF THAT COMPANY OR ENTITY HEREBY REPRESENTS AND WARRANTS THAT HE OR SHE IS AUTHORIZED AND LAWFULLY ABLE TO BIND THAT COMPANY OR ENTITY TO THIS OPERATING AGREEMENT.
We do not make any representation, warranty, or covenant regarding the amount of traffic or commission income you can expect at any time in connection with the Programme, and we will not be liable for any actions you undertake based on your expectations.
The purpose of the Programme is to permit you to publish your Articles on the Site and obtain income from advertising commissions (as defined in section 5) for the purchases of the Products, made by our end users. A "Product" is any item sold on the Site through our affiliate system or other means, if any. A Product may also include certain services, if any. In order to facilitate the advertisement of Products, we may add images, texts, widgets, links and other linking tools to your Articles ("Special Links").
To begin the enrolment process for the Programme, you simply have to complete and send us a first Article from the form included on the Site for this purpose. Your account will be associated, solely and exclusively, with the name and email used to send this first Article. Any change or rectification should contact us. The Magazine reserves the right to approve or reject ANY application to the Programme in its sole and absolute discretion. You will not have legal recourse against the Magazine for the rejection of the application to the Programme.
In order to participate in the Programme, You agree to send us, on your own initiative, written articles (the "Article" or "Articles") on topics that may fit to the content of the Site. The form and method of production of these Articles is solely at your sole discretion. The Magazine has no right to control the manner or method of performance under this Operating Agreement. You will send Articles according to the schedule that you deem convenient.
By submitting Your Article to us, You represent and warrant that the Article is your original work, that the Article has not been and is not the property of any third party, that the Article is accurate, that the Article has not been obtained by illegal means, that The Article has not been previously published in any way or medium, including specifically, but not limited to, print or electronic media, and that publication of the Article by the Magazine will not violate any copyright or other intellectual property rights of any third party. .
Without limiting the right to reject any Article for any reason that seems to us in our sole discretion, any Article will be rejected if it is not complete, if the content is not acceptable or is not consistent with the image of the Site, or contains any illegal content, immoral, repulsive, defamatory, derogatory, harassing, harmful, threatening, obscene, vulgar, objectionable pornographic, racial or ethnic materials, depicting sexual situations, promoting discrimination on the basis of race, sex, sexual preference, national origin, ethnicity, nationality, disability, religion, or if it contains, according to us, any material that appears to us that violates any patent, trademark, copyright, trade secret, confidential information, or other proprietary rights of any other party.
The commission that you will receive will be calculated according to the following way ("Formula"): AxB / C.
The Magazine reserves the following rights:
You will receive commission income for the Qualifying Purchases that we, previously, have duly entered, for a given month, subject to any applicable withholding or deduction described below. Advertising fees will be paid in the currency that we deem appropriate, normally the euro. We will pay You approximately 60 days after the end of each calendar month using the payment method of your choice, from the following available options:
The Magazine, under no circumstances, is not responsible for the withholdings, commissions, deductions, taxes or others that the payment method chosen by you may suppose in the total payment.
You understand and accept that, under no circumstances, the Magazine will pay you on a fixed or periodic basis, by number of words, by Article, by hours, days or in another way that is calculated based on time, or for any photos, image or any other material published together with your Article. Likewise, you understand and accept that the Magazine may publish, at its sole discretion, any number of photos less than or equal to those sent by you with the Article.
You will be responsible for reporting, depositing, and paying any and all federal, state, and local taxes, including, but not limited to, income taxes, FICA taxes, and unemployment taxes related to the performance of, or payment in under this Operating Agreement.
8. Reservation of rights; Submissions
If you provide us with suggestions, reviews, modifications, data, images, text, or other information or content about an Article or in connection with this Operating Agreement, any Article, or your participation in the Programme, or if you modify any Article in any way, (collectively, "Your Submission"), you hereby irrevocably assign to us all right, title, and interest in and to Your Submission and grant us (even if you have designated Your Submission as confidential) a paid-up royalty-free, nonexclusive, worldwide, irrevocable, freely transferable, perpetual (or if perpetual is not permitted, for the maximum duration of protection available, under applicable law) right and licence to (a) use, reproduce, perform, display, and distribute Your Submission in any manner; (b) adapt, modify, re-format, and create derivative works of Your Submission for any purpose; (c) use and publish your name in the form of a credit in conjunction with Your Submission (however, we will not have any obligation to do so); and (d) sublicense the foregoing rights to any other person or entity. Additionally, you hereby warrant that: (y) Your Submission is your original work, or you obtained Your Submission in a lawful manner; and (z) our and our sublicensees’ exercise of rights under the licence above will not violate any person’s or entity’s rights, including any copyright rights. You agree to provide us such assistance as we may require to document, perfect, or maintain our rights in and to Your Submission.
This Operating Agreement will enter into force the moment we accept your request to participate in the Programme, publishing your first Article on the Site, and will end when you or we resolve it. You or we may terminate this Operating Agreement at any time, with or without cause, by giving the other party at least 7 days’ written notice of termination.
In addition, we may terminate this Operating Agreement immediately at any time upon written notice to you for Cause. "Cause" means any of the following:
(a) You commit a serious breach of this Operating Agreement or a minor breach of this Operating Agreement but do not cure it within seven days; (b) we consider that we may face possible claims or responsibilities derived from your participation in the Programme; (c) we believe that our brand or reputation may be harmed by you or by your participation in the Programme; (d) we consider that we are or may be subject to tax payment requirements in connection with this Operating Agreement or with the activities carried out by any party to it; or (e) we terminate the Programme in the version in which we generally make available to participants.
We may withhold accrued and unpaid advertising commissions that accrued prior to termination, we may withhold final payment for a reasonable period of time after termination to ensure that the correct amount is paid (for example, to account for any cancellations or returns). Upon termination of this Operating Agreement, all licenses, rights, and obligations of the parties will terminate, although all rights and obligations of the parties under Sections 8, 9, 11, 12, 13, 14, and 15 , along with any payment obligations accrued and not paid by us under this Operating Agreement will survive the termination of this Operating Agreement. The expiration of this Operating Agreement will not affect the rights, indemnities, obligations and responsibilities accrued and pending at expiration.
We may modify any of the terms and conditions contained in this Operating Agreement at any time and from time to time in our sole discretion by, at least 7 days prior to the effective date of the modification, posting a change notice or revised agreement on the Site and, in the case of changes to the contractual terms of the Operating Agreement, by sending a notification to the email address then-currently associated with your Programme account. Modifications may include, for example, changes to the Formula, payment procedures, and Programme requirements. You may during that 7-day period, as your sole recourse, notify us in writing of your objections to the modifications and, if you do so, your account will automatically terminate on the effective date of the modification to which you objected.
IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS OPERATING AGREEMENT IN WRITING. YOUR CONTINUED PARTICIPATION IN THE PROGRAMME FOLLOWING THE EFFECTIVE DATE OF THE MODIFICATION WILL CONSTITUTE YOUR BINDING ACCEPTANCE OF THE MODIFICATION.
You and we are independent contractors, and nothing in this Operating Agreement or the Operational Documentation will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between you and us or our respective affiliates. You will have no authority to make or accept any offers or representations on our or our affiliates’ behalf. You will not make any statement, whether on your site or otherwise, that contradicts or may contradict anything in this section. If you authorize, assist, encourage, or facilitate another person or entity to take any action related to the subject matter of this Operating Agreement, you will be deemed to have taken the action yourself.
WE WILL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING ANY LOSS OF REVENUE, PROFITS, GOODWILL, USE, OR DATA) ARISING IN CONNECTION WITH THIS OPERATING AGREEMENT, THE PROGRAMME, OPERATIONAL DOCUMENTATION, THE SITE, OR THE SERVICE OFFERINGS (DEFINED BELOW), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING IN CONNECTION WITH THIS OPERATING AGREEMENT, THE PROGRAMME, THE AMAZON SITE, AND THE SERVICE OFFERINGS WILL NOT EXCEED THE TOTAL ADVERTISING FEES PAID OR PAYABLE TO YOU UNDER THIS OPERATING AGREEMENT IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO THE MOST RECENT CLAIM OF LIABILITY OCCURRED.
NOTHING IN THIS OPERATING AGREEMENT (INCLUDING THE PREVIOUS PARAGRAPH) WILL OPERATE TO EXCLUDE: (I) LIABILITY FOR DEATH OR PERSONAL INJURY ARISING AS A RESULT OF THE NEGLIGENCE OF EITHER PARTY, ITS EMPLOYEES, AGENTS OR AUTHORISED REPRESENTATIVES, (II) EITHER PARTY’S CONTRACTUAL LIABILITY FOR GROSS NEGLIGENCE OR WILFUL MISCONDUCT, OR (III) ANY LIABILITY WHICH MAY NOT BE EXCLUDED OR LIMITED UNDER THE APPLICABLE LAW.
THE PROGRAMME, THE SITE, ANY PRODUCTS AND SERVICES OFFERED ON THE SITE, ANY SPECIAL LINKS, LINK FORMATS, OPERATIONAL DOCUMENTATION, CONTENT, DOMAIN NAMES AND ALL TECHNOLOGY, SOFTWARE, FUNCTIONS, MATERIALS, DATA, IMAGES, TEXT, AND OTHER INFORMATION AND CONTENT PROVIDED OR USED BY OR ON BEHALF OF US IN CONNECTION WITH THE PROGRAMME (COLLECTIVELY THE "SERVICE OFFERINGS") ARE PROVIDED "AS IS."
EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES WITH RESPECT TO THE SERVICE OFFERINGS, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE.
WE MAY DISCONTINUE ANY SERVICE OFFERING, OR MAY CHANGE THE NATURE, FEATURES, FUNCTIONS, SCOPE, OR OPERATION OF ANY SERVICE OFFERING, AT ANY TIME AND FROM TIME TO TIME. NEITHER WE WARRANT THAT THE SERVICE OFFERINGS WILL CONTINUE TO BE PROVIDED, WILL FUNCTION AS DESCRIBED, CONSISTENTLY OR IN ANY PARTICULAR MANNER, OR WILL BE UNINTERRUPTED, ACCURATE, ERROR FREE, OR FREE OF HARMFUL COMPONENTS.
NEITHER WE WILL BE RESPONSIBLE FOR (A) ANY ERRORS, INACCURACIES, OR SERVICE INTERRUPTIONS, INCLUDING POWER OUTAGES OR SYSTEM FAILURES; OR (B) ANY UNAUTHORIZED ACCESS TO OR ALTERATION OF, OR DELETION, DESTRUCTION, DAMAGE, OR LOSS OF, YOUR SITE OR ANY DATA, IMAGES, TEXT, OR OTHER INFORMATION OR CONTENT.
NO ADVICE OR INFORMATION OBTAINED BY YOU FROM US OR FROM ANY OTHER PERSON OR ENTITY OR THROUGH THE PROGRAMME, OPERATIONAL DOCUMENTATION, THE SITE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS OPERATING AGREEMENT.
FURTHER, NEITHER WE WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH (X) ANY LOSS OF PROSPECTIVE PROFITS OR REVENUE, ANTICIPATED SALES, GOODWILL, OR OTHER BENEFITS, (Y) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS OPERATING AGREEMENT OR YOUR PARTICIPATION IN THE PROGRAMME, OR (Z) ANY TERMINATION OF THIS OPERATING AGREEMENT OR YOUR PARTICIPATION IN THE PROGRAMME.
Spanish laws, without regard to principles of conflicts of laws, will govern this Operating Agreement and any dispute of any sort that might arise between you and us. You hereby irrevocably submit to the non-exclusive jurisdiction of the Courts of the judicial district of Barcelona City. Notwithstanding anything to the contrary in this Operating Agreement, we may seek injunctive or other relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of our or any other person or entity’s intellectual property or proprietary rights.
You acknowledge and agree that we may at any time (directly or indirectly) solicit customer referrals on terms that may differ from those contained in this Operating Agreement. You may not assign this Operating Agreement, by operation of law or otherwise, without our express prior written approval. We may assign it to another party who undertakes to abide by our covenants and obligations given here. Subject to that restriction, this Operating Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns.
Our failure to enforce your strict performance of any provision of this Operating Agreement or the Operational Documentation will not constitute a waiver of our right to subsequently enforce this provision or any other provision of this Operating Agreement. In the event of any conflict between this Operating Agreement and any other pages, schedules, policies, guidelines, and other documents and materials referenced in this Operating Agreement (collectively, "Operational Documentation"), this Operating Agreement will prevail over any of them.
In the event of any conflict between this Operating Agreement and any other agreement, contract or document involving You and the Magazine, updated or not, signed or not, this Operating Agreement will prevail over them.
This Operating Agreement is drafted in the Spanish language. Any translations of this Operating Agreement are provided for convenience only and the Spanish language text shall prevail over any such translations.