Introduction. As an application service provider, SmartResponse facilitates "Affiliate Marketing Programs" through provision of services ("Network Service") via the Internet. An "Affiliate Marketing Program" (or "Program") is where a person, entity, publisher or its agent operating one or more "Web site(s)" (domain or portion of a domain within the Internet) and/or subscription e-mail list(s) ("Publisher") may earn financial compensation ("Payouts") for "Transactions" ("Sale(s)" and/or "Leads") made from such Publisher's Web site or subscription e-mails through a click made by a "Visitor" (generally any person or entity that is not the Publisher or the Publisher's agent) on an Internet connection ("Link") to a Web site or Web site content operated by another person or entity ("Advertiser"). The Advertiser compensates the Publisher, in accordance with this Agreement and the Program specifications.
1. Relationship. You agree not to: (a) mislead others; (b) operate or utilize a Web site or e-mail Link to Web sites that contain or promote, any of these types of content: libelous, defamatory, obscene, abusive, violent, bigoted, hate-oriented, cracking, hacking or warez, or offer any illegal good or service, or Link to a Web site(s) that does so; (c) engage in spamming, indiscriminate advertising or unsolicited commercial e-mail or otherwise failing to comply with applicable laws regulating commercial e-mail; (d) violate any applicable privacy laws; and/or (e) engage in any illegal activity of any type.
You remain solely responsible for Your Web site content. SmartResponse is, under no circumstances, responsible for the practices of any Publisher or Advertiser or such Publisher or Advertiser's Web site(s), and/or the content of Publishers' subscription e-mails and/or the content that an Advertiser makes available through the Network Service.
2.1 Program Details. The details of Your Program and any Campaigns shall be contained within Your "ACCOUNT INFO page." You must provide SmartResponse with a copy of Your ACCOUNT INFO page content prior to Your Program being activated for SmartResponse's review for consistency with the Network Service. To revise Your ACCOUNT INFO Page, including your domain name, and/or Special T&Cs.
2.2 Terminating Publishers from Your Program. After You have approved a Publisher's application to Your Program, You may terminate that Publisher, one of its Sub-Publishers, or one of that Publisher's (or Sub-Publisher's) Web sites or subscription e-mail lists from Your Program. In order to terminate a Publisher from Your Program for Publisher Termination for Convenience, You must use the automated function through the Network Service. For Publisher Termination for Material Breach, You must use the Account Manager user interface on the Network Service to contact a SmartResponse client service representative. SmartResponse shall process termination requests received during normal business hours within 24 hours and those received out of normal business operating hours shall be processed within 24 hours of the next business day (excluding holidays). SmartResponse is not responsible for Publishers' compliance with Your termination requests. SmartResponse may terminate a Publisher from a Your Program in SmartResponse's sole discretion.
3.1 Fees. In consideration for payment of the fees and compliance with this Agreement, SmartResponse shall provide You with access to the Network Service and account management services. If You wish to run multiple Programs and have access to reporting on a per "Account" basis through the Network Service You must establish more than one Account per Program (e.g. per Web site that You operate). SmartResponse reserves the right to implement network access fees, implementation fees for subsequent accounts, and monthly minimum fees post beta phase.
3.2. General and Initial Services. In addition to tracking services and reporting capability, SmartResponse shall provide to You the following SmartResponse services: (a) a single, initial promotion of Your Program in the first SmartResponse Publisher Newsletter published following Your Live Activation Date; (b) placement of Your Program in 1 category of the Network Service Program Directory; (c) payment of Payouts to Your Publishers ; (d) access to a SmartResponse Account Executive to help manage your program; (e) initial technical integration and set-up telephone support; and (f) ad serving for all commercially standard Links for product images, banners, buttons and text Links (with no reduction in fees if You elect to serve Your Links Yourself or if Your Links are served by Your Publishers or a SmartResponse authorized provider).
3.2.1 Diversity of Tracking Technology. SmartResponse Advertisers are provided with integration alternatives such as modified pixel tracking technology, data transfer tracking for interim processing by Advertiser, and rapid integration with standard pixel tracking technology. Alternatively, at SmartResponse's sole discretion, Advertiser may utilize the "scheduled data transfer" method of tracking in addition to embedding a pixel image (for
auditing purposes) that automates the reporting of Transactions to SmartResponse. "Scheduled Data Transfer" means that You are recording Transactions on Your servers and then reporting the Transaction data to SmartResponse. If You are approved for and utilize the Scheduled Data Transfer method, You agree to report data Transactions to SmartResponse on a daily basis in accordance with the formatting, security, and transfer requirements as directed by SmartResponse. In no event shall data be transferred later than 3 business days after the transaction. SmartResponse may require You to utilize pixel tracking at its discretion. Transactions reported through Scheduled Data Transfer shall be subject to the Chargeback procedures specified in Section 3.6.
3.3 Ad Serving; Tracking Code Maintenance. You agree to comply with SmartResponse 's tracking code integration and maintenance requirements as notified to You by SmartResponse from time to time.
3.4 Payouts/Payout Rates. You shall establish through the Network Service a Payout rate for a qualifying Transaction for each of Your Campaigns. You will be invoiced for each Payout and corresponding Transaction Fee in accordance with Your Campaign Payout rate for the relevant Campaign for each such Visitor action directly resulting from each of Your Publisher's Web sites or within a subscription e-mail Linking to Your Web site. Unless specifically excluded, all Transactions are eligible for a Payout.
You may discontinue Campaigns or Programs, or decrease any Payout rate upon 7 days written notice via the automated function through the Network Service, with effect from the 8th day from such notice. SmartResponse will send Your Publishers a notice regarding each change in Your Payout rate(s), or Campaign or Program discontinuation. If You have established custom Payout rates or other such arrangements, You are responsible for notifying Your Publishers of such changes.
3.5 Payment. SmartResponse’s billing terms are 14 days net from invoice receipt. In the event that SMARTRESPONSE must incur expenses related to the collection of any outstanding balance or fees, You shall pay SmartResponse's reasonable expenses associated with said collection, including attorney and collection agency fees.
3.6 Order Modifications. An "Order modification" indicates that the Transaction is not eligible for a Payout. Order modifications are only acceptable in the following circumstances: (a) product return; duplicate entry or other clear error; (b) Publisher's failure to comply with Your Program terms or breach of the Publisher Service Agreement with respect to such Publisher's participation in Your Program; or, (c) with respect to a Sale, non-receipt of payment from, or refund of payment to, the Visitor by You. New, Extended and Corrected Transactions must be processed by You, either through the Account Manager user interface or through a scheduled data transfer (in accordance with SmartResponse 's processes and procedures) by the 10th of the month for Transactions that occurred the prior month. Failure to process a Transaction's status by the 10th of the month results in a Locked Transaction status. Payment of the Payout and Transaction Fees associated with that Transaction must then be authorized by You.
4.1 Proprietary Rights and Licenses. You grant to SmartResponse a revocable, non-transferable, royalty free, international license to display on and distribute from SmartResponse's Web site Links to Your Web site for Your Program(s), and all trademarks, service marks, tradenames, and/or copyrighted material ("Content") that You provide to SmartResponse through the Network Service for the limited purposes of promoting Your Program to Publishers and potential Publishers, subject to the terms and conditions of this Agreement and the Publisher's Publisher Service Agreement. The rights to display and Link to Your Web site are sub-licensable by SmartResponse to Your Publishers.
4.2 Terminating Licenses. When You terminate any Publisher's participation in Your Program, the Publisher's sublicense to Your Content terminates immediately. You may terminate a Publisher's participation in Your Program immediately if You have reasonable concerns that the sublicensee/licensee is diluting, tarnishing or blurring the value of Your trademarks, service marks, and/or tradenames, and/or breach of Your other intellectual property rights. This Agreement may be terminated in whole or part by either party if such party has reasonable concerns that the other party is diluting, tarnishing or blurring the value of such party's trademarks, service marks, and/or tradenames, and/or for breach of such party's other intellectual property rights.
5.1 Confidentiality. You or SmartResponse may provide the other with information that is confidential and proprietary to that party or a third party, as is designated by the disclosing party ("Confidential Information"). The receiving party agrees to make commercially reasonable efforts, but in no case less effort than it uses to protect its own Confidential Information, to maintain the confidentiality of and to protect any proprietary interests of the disclosing party. Confidential Information shall not include (even if designated by a party) information that is or becomes part of the public domain through no act or omission of the receiving party, or is lawfully received by the receiving party from a third party without restriction on use or disclosure and without breach of this Agreement or any other agreement without knowledge by the receiving party of any breach of fiduciary duty, or that the receiving party had in its possession prior to the date of this Agreement.
5.2 Collection and Use of Transaction Data. SmartResponse collects, owns, and may use as it chooses anonymous Visitor demographic, transactional information, and SmartResponse information and data. Advertiser is prohibited from providing SmartResponse with any personally identifiable information of Visitors and third parties. Without limiting the foregoing, Advertiser shall not provide SMARTRESPONSE with Order IDs that could potentially be connected to an actual individual, including, but not limited to user names.
6.1 Notices. Except as provided elsewhere herein, both parties must send all notices relating to this Agreement in writing via overnight mail or facsimile: (a) to SmartResponse at SmartResponse, Attn: Legal Affairs, Holmbladsgade 111, København, Danmark 2300, and/or via facsimile to (+45) 3823 7001, and, (b) for You, at the address or facsimile number listed on Your Account. Notices shall be effective upon a facsimile confirmation, the notified party's actual receipt (or refusal to accept to receipt, if applicable), or five (5) days after the date of mailing.
6.2 Term and Termination.
6.2.1 Term. This Agreement shall commence upon the date of Your click-through acceptance, and shall be in effect on a per Program basis through twelve (12) months following the date (known as the "Live Activation Date") for such Program in which (i) You have properly installed the SmartResponse tracking code within Your Links, (ii) such Links to Your Web site or Web site content are accessible to Your Publishers through the Network Service, and (iii) You have paid to SmartResponse the Initial Payment for the Program ("Initial Term").
6.2.2 Termination for Cause. Either party may terminate this Agreement if the other party breaches this Agreement and fails to cure such breach within 30 days of receipt of written notice from the non-breaching party of the existence and nature of the breach. Notwithstanding the preceding, SmartResponse may terminate this Agreement immediately upon notice should You engage in illegal activity of any type.
Notwithstanding the foregoing, SmartResponse may: (i) immediately deactivate Your Account(s) without notice if You breach Sections 1, 3.5, and 4 or engage in illegal activity of any type, (ii) deactivate Your Account(s) upon 7 days notice if You breach Section 3.3 (Ad Serving; Tracking Code Maintenance), and (iii) deactivate Your Account(s) for any other breach of this Agreement upon Your failure to cure such breach within 7 days of receipt of written notice from SmartResponse of the existence and nature of the breach. If this Agreement is terminated for Your breach, You shall not be eligible to enter into a new click-through Advertiser service agreement with SmartResponse, and any attempt to do so shall be null and void.
6.2.3 Renewal Terms. After the initial Term, this Agreement shall automatically renew for additional twelve (12) month terms ("Renewal Term") unless either party provides the other with sixty (60) days notice of termination prior to the end of an Initial or Renewal Term.
6.2.4 Effect of Termination. Upon termination of this Agreement, You shall pay to SmartResponse any outstanding invoices within 10 days of the date of termination.
Upon termination of this Agreement, any license or sublicense granted to You or by You under this Agreement will terminate, and the licensee/sub-licensee shall immediately destroy or delete all physical and electronic copies of the Confidential Information, and cause all Links to SmartResponse to be removed. SmartResponse shall (a) inform Your Publishers that Your Program(s) has ended (if terminated) or has been temporarily discontinued (in the case of temporary deactivation), (b) stop distributing Links to Your Web site, and (c) request (or suggest, in circumstances of deactivation) that all Links placed by Your Publishers to Your Web site be removed from such Publishers' Web sites and/or subscription e-mail.
7.1 Limitation of Liabilities. Any liability of a party under this agreement shall be limited to the total of all fees paid and payable by You to SmartResponse, and interest paid and payable by You to SmartResponse, for the twelve month period preceding the date on which the claim arose. No action, suit or proceeding shall be brought against SmartResponse more than one year after the termination of this agreement. Neither party shall be liable to the other party, or any third party (including but not limited to a claim by a publisher or advertiser of the network service), for any consequential, exemplary, special, incidental, or punitive damages, including, but not limited to, loss of goodwill, lost profits, business interruption, loss of programs or other data, even if advised of the possibility of such damages or claim.
7.2 Disclaimer of warranties. To the fullest extent permissible pursuant to applicable law, SmartResponse disclaims all warranties implied, including, but not limited to, (a) merchantability, fitness for a particular purpose or non-infringement of third party rights, (b) that there are no viruses or other harmful components, (c) that SmartResponse's security methods will be sufficient, (d) regarding correctness, accuracy, or reliability, or (d) against interference with enjoyment of the publisher's information or web site. All 'information' and 'computer programs' provided to You in the course of this agreement are provided with all faults, and the entire risk as to satisfactory quality, performance, accuracy, and effort is with You. SmartResponse is, under no circumstances, responsible for the practices, acts or omissions of any advertiser or publisher, or such advertiser or publisher's web site(s), and/or the content of an advertiser's web site or that an advertiser makes available through the network service.
8 Indemnification. You shall indemnify and hold SmartResponse harmless against all allegations, claims, actions, causes of action, lawsuits, damages, liabilities, obligations, costs and expenses (including without limitation reasonable attorneys' fees, costs related to in-house counsel time, court costs and witness fees) (collectively "Losses") attributable to or related to Your breach of this Agreement and for claims of product liability ("Claims"). Should any Claim give rise to Your duty of indemnification under the provisions of this Agreement, then SmartResponse shall promptly notify You, and You may participate in (at your own expense), but not control, the defense of such Claim. Participation in the defense shall not waive or reduce Your obligations to indemnify or hold SmartResponse harmless.
9.1 Relationships of Parties/Third Party Rights. The relationships of the parties to this Agreement shall be solely that of independent contractors, and nothing in this Agreement or in the business or dealings between the parties shall be construed to make them joint venturers or partners with each other. Neither party shall do anything to suggest to third parties that the relationship between the parties is anything other than that of independent contractor. You agree that Your consent is not necessary to modify any Publisher Service Agreement.
9.2 Force Majeure. Neither party shall be liable by reason of any failure or delay in the performance of its obligations hereunder for any cause beyond the reasonable control of such party, including but not limited to electrical outages, failure of Internet service providers, default due to Internet disruption (including without limitation denial of service attacks), riots, insurrection, war (or similar), fires, flood, earthquakes, explosions, and other acts of God.
9.3 Solicitation of Publishers. During the Term of this Agreement, any renewal Terms, and for 6 months hereafter, You shall not knowingly solicit any Publisher, web site, or e-mail provider that is obtained through the Services provided by SmartResponse under this Agreement, nor shall You transfer any Publisher obtained through the Services provided by SMARTRESPONSE under this Agreement to any third party provider or any in-house program substantially similar to the Services being provided by SmartResponse hereunder, and You shall not encourage any such Publisher to so transfer. In the event You do directly solicit or cause to be transferred any affiliate, You shall pay SmartResponse what SmartResponse would have otherwise earned had You not violated this provision. Except as expressly set forth above, nothing herein shall be deemed to restrict Advertiser from entering into independent strategic partnerships or other agreements with Publishers, or to prohibit Advertiser from advertising, merchandising or promoting its products or services.