Thank you for your interest in becoming a SmartDraw.com affiliate. Set forth below are sample SmartDraw.com affiliate terms and conditions, on which you may become a SmartDraw.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 SmartDraw.com's sole discretion) the terms and conditions upon which you may become a SmartDraw.com affiliate. If you so agree and click the "accept" button, you will be taken to a screen where you may submit to SmartDraw.com certain information about you which SmartDraw.com will use to pre-qualify you as a SmartDraw.com affiliate. SmartDraw.com will inform you whether, based on the information you submit, you are pre-qualified to be a SmartDraw.com affiliate. If SmartDraw.com pre-qualifies you, at SmartDraw.com's sole discretion, as a SmartDraw.com affiliate, then SmartDraw.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 SmartDraw.com's sole discretion), and will ask you to sign such written form of an affiliate agreement if you agree to become a SmartDraw.com affiliate on the terms and conditions thereof. No binding agreement will exist between you and SmartDraw.com unless and until a written paper copy of an affiliate agreement is executed by both you and SmartDraw.com.
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 SmartDraw.com's URL located at www.smartdraw.com (the "SmartDraw Site"). Within thirty (30) days after the Effective Date, SmartDraw.com will deliver to the Company the Link in electronic format. No later than fifteen (15) days after the delivery of the Link by SmartDraw.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 SmartDraw.com from time to time. Company further agrees to notify SmartDraw.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, SmartDraw.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 SmartDraw 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 SmartDraw.com discovers that the Company Site endorses or includes any of the aforementioned activities or items, SmartDraw.com may immediately revoke the foregoing license without notice to Company. As a SmartDraw.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 SmartDraw.com Affiliate. Without limiting the foregoing obligation, Company agrees that as SmartDraw.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, SmartDraw.com grants to Company a nonexclusive, worldwide and non-transferable license, without the right to sublicense, to use the SmartDraw.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 SmartDraw.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 SmartDraw.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 SmartDraw.com.
3. PAYMENT. In consideration for the posting of the Link on the Company Site, SmartDraw.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 SmartDraw.com Indemnification. Subject to the provisions of this paragraph, SmartDraw.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 SmartDraw 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 SmartDraw.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 SmartDraw 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 SmartDraw.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 SmartDraw.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. SmartDraw.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 SmartDraw.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 SmartDraw.com, including without limitation, payment of money, rebates, discounts or other benefits, Company must first get written permission from SmartDraw.com, which may be given or withheld in SmartDraw.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 SmartDraw.com and its products are at Company's sole discretion. SmartDraw.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 SmartDraw.com to such Secondary Affiliates, including with respect to payment to Secondary Affiliates, or granting permissions to such Secondary Affiliates to use SmartDraw.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 SmartDraw.com shall have full recourse against Company with respect to such breach.
6.5 Limitation of Liability. IN NO EVENT SHALL SMARTDRAW.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 SMARTDRAW.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 SMARTDRAW.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 SmartDraw.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) SmartDraw.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 SmartDraw.com and, accordingly, will entitle SmartDraw.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 SmartDraw.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 SmartDraw.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 SmartDraw.com may specify in writing to the Company. Notice will be deemed given on actual receipt by SmartDraw.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.
1. Site URLs
Company Site URL: http://www.________________.com/________________
(to be agreed upon in written format)
2. SmartDraw Marks
(to be agreed upon in written format)
3. Payment In consideration for the services performed by the Company under the Affiliate Agreement, SmartDraw shall pay to the Company commissions in accordance with the provisions of this Section 3 ("Payment") for each sale by SmartDraw of SmartDraw software, as recorded by the SmartDraw Affiliate System, (collectively, the "Product") to a visitor of the Company Site redirected to SmartDraw website by the Link (each, a "Customer"), provided the sale occurs within the first ninety (90) days after Customer first visits SmartDraw's website after (and as a result of) being redirected from the Company Site. For each Product sale so recorded, the Company shall be entitled to a commission equal to the percentage of such sale determined in accordance with Section 3.1 below. If a Product is returned by such Customer under SmartDraw's return policy, prior commissions or any portion thereof already paid to the Company for such Product shall be deducted from any present or future commission owing or later accruing to the Company. The commission shall be payable by SmartDraw by mailing a payment to the Company before the thirtieth (30th) day of each calendar month following a month during which SmartDraw has received payment in full from a Customer as follows: (a) if payment is by personal check, upon the customer's bank honoring such personal check, or (b) if payment is by credit card, upon SmartDraw receiving payment in full. The Company's sole source of compensation for rendering services on SmartDraw's behalf pursuant to the Affiliate Agreement shall be the commissions payable under this Section 3 ("Payment"). The Company shall have no right to receive any other compensation from SmartDraw for services rendered to SmartDraw or to receive reimbursement of any expenses or other costs incurred by the Company in connection therewith. Upon termination of the Affiliate Agreement the Company shall be entitled to receive full commissions in that amount and to that extent it would otherwise have been entitled to receive such commissions p ursuant to this Section 3 ("Payment") for a period of ninety (90) days following the effective date of termination. SmartDraw's acceptance of any order from a Customer after the expiration or termination of the Affiliate Agreement shall not be construed as a renewal or extension of the Affiliate Agreement, or as a waiver of the right to terminate or of any other matter or right. SmartDraw shall have the right after the termination of the Affiliate Agreement to deal with, and solicit orders from, any and all persons and entities, including Customers, without any liability of any kind to the Company.
3.1 Commission Percentages. Company's commission percentage will be as follows:
3.2 Affiliate Referral. Company may refer additional affiliates to SmartDraw.com. The referred affiliate must cite Company on the Affiliate Application in order for Company to receive credit. Should sales of SmartDraw Software to third parties referred to SmartDraw by such referred affiliate reach $1,000 within 6 months of such referred affiliate joining SmartDraw's affiliate program, Company will receive, as Company's sole compensation for such referral, $100 plus 10% of sales of SmartDraw software to third parties referred to SmartDraw by such referred affiliate during the first 6 months of being an affiliate.