Thank you
for your interest in becoming a SmartOutline.com affiliate.
Set forth below are sample SmartOutline.com affiliate terms
and conditions, on which you may become a SmartOutline.com
affiliate. Please read them carefully. Please note that the
terms and conditions set forth below are for informational
purposes only. No agreement will be concluded if you click
on the button "accept" below. By clicking on the
button "accept" below, you will only signify your
agreement that the following terms and conditions may (or
may not be, at SmartOutline.com's sole discretion) the terms
and conditions upon which you may become a SmartOutline.com
affiliate. If you so agree and click the "accept"
button, you will be taken to a screen where you may submit
to SmartOutline.com certain information about you which
SmartOutline.com will use to pre-qualify you as a
SmartOutline.com affiliate. SmartOutline.com will inform you
whether, based on the information you submit, you are
pre-qualified to be a SmartOutline.com affiliate. If
SmartOutline.com pre-qualifies you, at SmartOutline.com's
sole discretion, as a SmartOutline.com affiliate, then
SmartOutline.com will contact you, provide you with a
written form of an affiliate agreement (the terms and
conditions of which agreement may or may not be those that
follow, at SmartOutline.com's sole discretion), and will ask
you to sign such written form of an affiliate agreement if
you agree to become a SmartOutline.com affiliate on the
terms and conditions thereof. No binding agreement will
exist between you and SmartOutline.com unless and until a
written paper copy of an affiliate agreement is executed by
both you and SmartOutline.com.
Sample
SmartOutline.com Affiliate Terms and Conditions
1.
LINK. In this Agreement "Link" shall mean a
Universal Resource Locator ("URL") hidden behind a
formatting option that may take the form of a colored item
of text (such as a URL description), logo, button, banner or
image, and which allows a user to automatically and directly
transfer to SmartOutline.com's URL located at www.SmartOutline.com
(the "SmartOutline Site"). Within thirty (30) days
after the Effective Date, SmartOutline.com will deliver to
the Company the Link in electronic format. No later than
fifteen (15) days after the delivery of the Link by
SmartOutline.com, the Company shall post the Link on a
prominent location of the Company's website listed in Exhibit
A attached hereto ("Company Site"). Company
agrees to maintain the Link, and to update the Link in
accordance with information provided to Company by
SmartOutline.com from time to time. Company further agrees
to notify SmartOutline.com immediately of any modifications
to, or malfunctions of the Link.
2. LICENSE GRANT.
2.1 Use of Link. During the term of this Agreement,
SmartOutline.com grants to Company, a limited, royalty-free,
non-exclusive, non-transferable worldwide right and license,
without the right to sublicense, to reproduce and display
(but not to adopt, modify or change) the Link within the
Company Site for the sole and limited purpose of enabling
redirections of visitors to Company Site to the SmartOutline
Site. The Link will not be used in association with any
sexual content or adult-rated material, pornography or
obscenity (whether in text or graphics), profanity, hate
speech, defamatory, libelous or threatening language,
software piracy or any activity which otherwise violates or
infringes a third party's intellectual property rights or
privacy rights, illegal activity or activities which violate
any foreign, international, federal, state or local law or
regulation, drugs, crime, death, firearms, ammunition or
explosives, lotteries, gambling, content that denigrates a
particular group based on gender, race, creed, religion,
nationality, sexual preference or handicap, graphic
violence, politically sensitive or controversial issues
(e.g., euthanasia, abortion, capital punishment) or other
political content (e.g., lobbyists, PAC sites, political
campaigns). If SmartOutline.com discovers that the Company
Site endorses or includes any of the aforementioned
activities or items, SmartOutline.com may immediately revoke
the foregoing license without notice to Company. As a
SmartOutline.com Affiliate, Company agrees to comply with
all laws, ordinances, rules, regulations, orders, licenses,
permits, judgments, decisions or other requirements of any
governmental authority that has jurisdiction over Company,
whether those laws, etc. are now in effect or later come
into effect during the time Company is a SmartOutline.com
Affiliate. Without limiting the foregoing obligation,
Company agrees that as SmartOutline.com Affiliate Company
will comply with all applicable laws (federal, state or
otherwise) that govern marketing email, including without
limitation, the CAN-SPAM Act of 2003 and all other anti-spam
laws.
2.2 Trademark License. During the term of this Agreement,
SmartOutline.com grants to Company a nonexclusive, worldwide
and non-transferable license, without the right to
sublicense, to use the SmartOutline.com trademarks and/or
service marks listed in Exhibit A
(collectively, the "Marks") on the Company Site as
part of the Links. Company will cause such quality standards
to be maintained in respect to the Marks as may be
prescribed from time to time by SmartOutline.com. All use of
the Marks by the Company shall be in strict conformity with
all applicable laws and regulations. Company will cause the
Marks to be displayed only in form or manner specifically
approved by Company. Company acknowledges that
SmartOutline.com is the sole and exclusive owner of the
Marks. Except as prohibited by law, Company agrees that it
will do nothing inconsistent with such ownership, either
during the term of this Agreement or afterwards. Company
agrees that Company's use of the Marks shall inure to the
benefit of and be on behalf of SmartOutline.com.
3. PAYMENT. In consideration for the posting of the Link on
the Company Site, SmartOutline.com will pay to Company the
fee specified in Exhibit A hereto.
(Sample Exhibit A is included below) The Company shall not
be entitled to any other revenue as compensation for posting
of the Link on the Company Site. The Company agrees to bear
its own costs and expenses incurred in performing its
obligations hereunder.
4. INDEMNIFICATION.
4.1 SmartOutline.com Indemnification. Subject to the
provisions of this paragraph, SmartOutline.com will
indemnify, defend and hold harmless Company and its
officers, directors, employees and agents from and against
any and all losses, liabilities, claims, obligations, costs,
expenses (including, without limitation, reasonable
attorneys' fees) which result from, arise in connection with
or are related in any way to claims by third parties
alleging that the Marks or the SmartOutline Site or content
infringes the copyrights, trademarks or privacy rights of
such third party. The obligations of this paragraph are
contingent on Company (a) giving SmartOutline.com prompt
written notice of any such claim and control of the defense;
and (b) providing reasonable cooperation in the defense and
all related settlement negotiations.
4.2 Company Indemnification. Subject to the provisions of
this paragraph, Company will indemnify, defend and hold
harmless SmartOutline and its officers, directors, employees
and agents from and against any and all losses, liabilities,
claims, obligations, costs, expenses (including, without
limitation, reasonable attorneys' fees) which result from,
arise in connection with or are related in any way to claims
by third parties alleging that the Company Site or Company
content infringes the copyrights, trademarks or privacy
rights of such third party, or is in violation of any
applicable law or regulation. The obligations of this
paragraph are contingent on SmartOutline.com's (a) giving
Company prompt written notice of any such claim and control
of the defense; and (b) providing reasonable cooperation in
the defense and all related settlement negotiations.
5. TERMINATION.
5.1 Termination on Notice. Either party may terminate this
Agreement by providing the other party thirty (30) days
advance written notice thereof.
5.2 Effect of Termination. In the event of the termination
of this Agreement, the Company shall promptly disable the
Link, remove the Link from the Company Site, and immediately
cease all use of the Marks.
6. MISCELLANEOUS.
6.1 Publicity. Neither Company nor SmartOutline.com shall
make any public announcement, except as they may mutually
agree, as to the existence and details of the matters set
forth in this Agreement (other than to employees,
consultants, shareholders or as required by such parties'
disclosure obligations under the securities laws or
regulations of the United States or any state thereof).
6.2 No Partnership or Joint Venture. SmartOutline.com and
Company are independent contractors and neither party is the
legal representative, agent, joint venturer, partner, or
employee of the other party for any purpose whatsoever.
Neither party has any right or authority to assume or create
any obligations of any kind or to make any representation or
warranty, whether express or implied, on behalf of or to
bind the other party in any respect.
6.3 Search Engine/Keyword Optimization. If Company desires
to promote SmartOutline.com and its products (i) by
purchasing, either directly or indirectly, search terms from
websites, search engines or other directory or referral
services (e.g., Overture, Google, and Yahoo!), (ii) by
incorporating keyword text into meta tags or websites or by
using other search engine optimization techniques, or (iii)
by offering, special promotions or discounts not offered at
SmartOutline.com, including without limitation, payment of
money, rebates, discounts or other benefits, Company must
first get written permission from SmartOutline.com, which
may be given or withheld in SmartOutline.com's sole and
absolute discretion.
6.4 Secondary Affiliate Networks. Any relationships Company
enters into with third parties, sub-affiliates, or secondary
affiliates ("Secondary Affiliate") in connection
with Company's promotion of SmartOutline.com and its
products are at Company's sole discretion. SmartOutline.com
is not a party to any agreement that Company creates with a
Secondary Affiliate and Company is not authorized to make
any commitments on behalf of SmartOutline.com to such
Secondary Affiliates, including with respect to payment to
Secondary Affiliates, or granting permissions to such
Secondary Affiliates to use SmartOutline.com's name, logo(s),
any provided images, or other intellectual property.
Secondary Affiliates are not third party beneficiaries under
this Agreement. Any breach of the terms and conditions of
this Agreement by a Secondary Affiliate which Company has
recruited shall be deemed a breach of this Agreement by
Company and SmartOutline.com shall have full recourse
against Company with respect to such breach.
6.5 Limitation of Liability. IN NO EVENT SHALL
SMARTOUTLINE.COM BE LIABLE OR OBLIGATED TO COMPANY OR ANY
THIRD PARTY IN ANY MANNER FOR ANY SPECIAL, NON-COMPENSATORY,
CONSEQUENTIAL, INDIRECT, INCIDENTAL, STATUTORY OR PUNITIVE
DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, LOST
PROFITS AND LOST REVENUE, REGARDLESS OF THE FORM OF ACTION,
WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT PRODUCT
LIABILITY, OR OTHERWISE, EVEN IF INFORMED OF OR AWARE OF THE
POSSIBILITY OF ANY SUCH DAMAGES IN ADVANCE. THE LIMITATIONS
SET FORTH HEREIN SHALL BE DEEMED TO APPLY TO THE MAXIMUM
EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING THE
FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDIES. THE
PARTIES ACKNOWLEDGE AND AGREE THAT THEY HAVE FULLY
CONSIDERED THE FOREGOING ALLOCATION OF RISK AND FIND IT
REASONABLE, AND THAT THE FOREGOING LIMITATIONS ARE AN
ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. COMPANY
SHALL NOT BE LIABLE TO SMARTOUTLINE.COM FOR DAMAGES THAT MAY
BE PROHIBITED BY APPLICABLE LAW, INCLUDING PUNITIVE DAMAGES.
NOTHING HEREIN SHALL BE TAKEN TO EXCLUDE OR RESTRICT
LIABILITY FOR DEATH OR PERSONAL INJURY ARISING FROM
NEGLIGENCE, OR DAMAGES RESULTING FROM GROSS NEGLIGENCE OR
WILLFULL MISCONDUCT, IF SO MANDATED BY APPLICABLE LAW.
6.6 Disclaimer. THE LINK IS PROVIDED UNDER THIS AGREEMENT
"AS IS", AND SmartOutline.com DISCLAIMS ALL
WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY,
INCLUDING WITHOUT LIMITATION, NON INFRINGEMENT,
MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
6.7 Survival. Upon any termination of this Agreement, the
following Sections shall remain in full force and effect: 4
("Indemnification"), 5.2 ("Effect of
Termination"), 6 ("Miscellaneous"), and 7
("General").
6.8 Governing Law and Venue. THIS AGREEMENT WILL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF CALIFORNIA, U.S.A., EXCLUDING ITS CONFLICT OF LAW
RULES. Company and SmartOutline.com each consent to the
exclusive personal jurisdiction and venue in the courts of
San Diego County, California, U.S.A.; however, such
jurisdiction shall be non-exclusive under the following
circumstances: (i) either party may seek to enforce
judgments entered in such courts in any court of competent
jurisdiction; and (ii) SmartOutline.com shall have the right
to protect its intellectual property rights in any court of
competent jurisdiction. The application of the United
Nations Convention on Contracts for the International Sale
of Goods to this Agreement is expressly excluded. Company
agrees that any breach by it of license restrictions set
forth in Section 2 ("License Grant") will cause
substantial irremediable damage to SmartOutline.com and,
accordingly, will entitle SmartOutline.com to seek and
obtain, in any court of competent jurisdiction anywhere in
the world, any emergency, injunctive or other relief in
addition to any other remedies SmartOutline.com may have
under applicable law.
7. GENERAL. In the event any provision of this Agreement is
held by a tribunal of competent jurisdiction to be contrary
to the law, the remaining provisions of this Agreement will
remain in full force and effect. Neither party may assign
this Agreement, in whole or in part, without the prior
written consent of the other party; provided however that
either party may assign this Agreement to a successor in
interest in the event of a reorganization, merger,
consolidation or sale of all or substantially all of such
party's assets or stock. A party's waiver of any breach of
this Agreement by the other party shall not constitute a
waiver of any subsequent breach of the same or different
provisions hereof. All notices to SmartOutline.com called
for under this Agreement will be in writing and given by
personal delivery, certified mail, return receipt requested,
or by commercial courier, to the address set forth on the
first page of this Agreement, or to such other address or
addresses as SmartOutline.com may specify in writing to the
Company. Notice will be deemed given on actual receipt by
SmartOutline.com. This Agreement, together with any exhibits
attached hereto, constitutes the entire agreement between
the parties and may only be modified by an instrument in
writing signed by both parties. This Agreement cancels and
supersedes any and all prior proposals (oral or written),
understandings, representations, conditions, warranties,
covenants and other communications between the parties,
which relate to the subject matter of this Agreement.
