Affiliate Program Terms and Conditions
These Terms and Conditions shall govern participation in
the AnswerSmart™ Affiliate Program (hereinafter, either the "AnswerSmart™
Affiliate Program" or the "Program"), which is offered by AnswerSmart™, Inc.
The AnswerSmart™ Affiliate Program is offered to individuals or entities
operating other web sites subject to these Terms and Conditions. The term
"Affiliate" shall refer to any individual or entity who accepts these Terms and
Conditions by clicking the "Sign Up" link.
AnswerSmart™ AFFILIATE PROGRAM
The AnswerSmart™ Affiliate Program enables users to add
certain links and promotional features to their web sites for which they will be
eligible for compensation in accordance with, and subject to, these Terms and
Conditions. AnswerSmart™ reserves the right, in its sole discretion, to alter
the Program at any time for any reason or for no reason at all. AnswerSmart™
reserves the right, in its sole discretion, to terminate the Program at any time
for any reason or for no reason at all.
REGISTRATION AND ACCEPTANCE
Age of Consent. By registering for the Program and
accepting these Terms and Conditions, Affiliate represents and warrants that he
or she is of the legal age of consent in all applicable jurisdictions and, in
any event, is at least 18 years of age.
Authority to Participate. By registering for the Program
and accepting these Terms and Conditions, Affiliate represents and warrants that
he or she can lawfully bind him or herself to these Terms and Conditions and can
lawfully participate in the Program in the jurisdiction(s) where Affiliate is
located. No Affiliate may participate in the Program where doing so would be
prohibited by any law or regulation having the force of law applicable to
Affiliate.
Content of Affiliates Web Site(s). By registering for the
Program and accepting these Terms and Conditions, Affiliate represents and
warrants that his/her web site(s) does not and will not contain, display,
promote or include obscene, indecent, violent, discriminatory, or illegal
content, including, but not limited to, text, graphics and images. By
registering for the Program and accepting these Terms and Conditions, Affiliate
represents and warrants that his/her web site(s) contains and displays content
(including, but not limited to, text, graphics and images) in addition to the
links, promotional materials, and branding made available pursuant to the
Program.
Information Submitted by Affiliate. By accepting these
Terms and Conditions, Affiliate represents and warrants: (i) that all
information submitted by Affiliate in registering for the Program is true,
accurate, current, and complete; and (ii) that Affiliate shall maintain and
update information submitted in registering for the Program in order to keep it
true, accurate, current and complete at all times. If any information that
Affiliate submits in the registration process is untrue, inaccurate, not current
or incomplete, AnswerSmart™ shall have the right to terminate Affiliate's
participation in the Program.
Binding Acceptance. In order to participate in the Program,
Affiliate will be required to enter certain registration information and to
click the "Signup" link. BY PROVIDING REGISTRATION INFORMATION AND CLICKING THE
"Signup" LINK, AFFILIATE AGREES TO BE BOUND BY THESE TERMS AND CONDITIONS. If
these Terms and Conditions or any future amendment or modification thereto are
unacceptable to Affiliate, Affiliate may cancel its participation in the
Program.
Modification and Amendment of Terms and Conditions. AnswerSmart™ reserves the right, in its sole discretion, to change, modify, add
or remove all or part of these Terms and Conditions. As used throughout these
Terms and Conditions, the phrase "Terms and Conditions" shall include any
amendments or modifications to the Terms and Conditions expressed herein.
AFFILIATE'S OBLIGATIONS
Responsibility for Web Sites. Affiliate acknowledges and
agrees that it shall be solely responsible for Affiliate's web site(s) and all
content, products, services, and/or links displayed on or made available through
or in connection with such web site(s).
Use of Links, Promotional Materials, and Branding.
Affiliate agrees that it will only use the links, promotional materials, and
branding made available through the Program in the precise manner and mode by
which such links, promotional materials, and branding are made available
pursuant to the Program. Affiliate further agrees that it will only use such
links, promotional materials, and branding for the purpose of establishing links
to AnswerSmart™, referring users to the services made available on www.AnswerSmart™.com and it's sub-domains, and promoting the AnswerSmart™ products and services. Affiliate further agrees that it will
only use the links, promotional materials, and branding made available pursuant
to the Program as additions to the content displayed on his/her web site(s) and
that such links, promotional materials, and branding shall not be the sole
content on his/her web site(s).
PROHIBITED CONDUCT
Affiliate represents and warrants as follows:
Affiliate will not engage in any SPAM of any kind, nor will Affiliate engage
in any unauthorized message board, messenger service or other online posting. AnswerSmart™ also considers ANY type of advertisement about AnswerSmart™ posted
to a newsgroup or chat room to be SPAM. For the purpose of this agreement, SPAM
is defined as e-mailing ANYONE, in bulk or by single mailing, about AnswerSmart™, who has not specifically requested the information directly from
Affiliate. "Unsolicited" and "Unauthorized" are defined as any solicitation not
expressly requested or warranted by any organization or site mentioned above.
Use of SPAM may result in the immediate suspension or termination of Affiliate
account. Affiliate will also be in violation of the AnswerSmart™ Affiliate
Agreement and subject to legal action and be held liable for any financial loss
incurred by AnswerSmart™.
Affiliate will not engage in any advertising utilizing spyware or adware of
any kind. This includes "permission" based adware software, used exclusively for
the delivery of popup or related ads. In the event that you have an application
that delivers advertisements, express permission must be granted in writing from
AnswerSmart™ to allow any promotion. Affiliate will also not attempt to
"bundle" AnswerSmart™ software with any other software, regardless of user
permission or otherwise, unless expressly permitted to do so in writing by AnswerSmart™.
Affiliate will not engage in any browser hijacking of any kind, or any other
interference with the normal functioning of a potential website visitor's
computer. This could include starting any process(es) not expressly started by
potential website visitor, including opening of a CD-ROM, or any other program
or application. In keeping with this, Affiliate is directly responsible to be in
full compliance with all pertinent law and the following of two laws
specifically: HR2929, the Securely Protect Yourself Against Cyber Trespass Act,
and HR4661, the Internet Spyware Prevention Act of 2004.
Affiliate will not intentionally mislead any potential website visitor to
believe that a AnswerSmart™ product is any other product. This could include
website content, or ads run on any search engine. Affiliate will not use any
product name in context of advertising which could be misunderstood to be a AnswerSmart™ product, and therefore be misleading to the potential website
visitor.
Affiliate will not use advertising which is directly false or misleading.
This could include claims that "Spyware or Adware" has been found on a user's
machine when no actual scan for such items has been done, or directly using a
customer's system information to falsely induce a click or purchase. This could
include showing contents of particular sections of the potential website
visitor's hard drive, cookie folder, or system settings, as well as specific
information, such as IP address, operating system, or any other system
information.
Affiliates who choose to market
via PPC must use ethically acceptable keywords/terms in their advertising
campaigns. Ethically acceptable terms are considered terms that in no way impose
upon the trademarks, copyrights or intellectual property of another product,
company or entity. Authorized affiliates of AnswerSmart™ and future network
partners may use AnswerSmart™ trademark terms which include AnswerSmart™ and
misspellings or variations thereof. At no time does AnswerSmart™ imply or
grant authorization to any other party the use of our trademarks in advertising,
promotions or any other such activity.
Affiliate will not alter the links, promotional materials,
and branding made available pursuant to the Program and will only use such
links, promotional materials, and branding in the exact shape, colors, design,
and configuration in which such items are made available pursuant to the
Program.
Affiliate will display all links, promotional materials,
and branding made available pursuant to the Program alone, with reasonable
spacing between each side of such item and other graphic or textual elements.
Affiliate will not use any links, promotional materials,
and branding of AnswerSmart™ other than those made available through the
Program.
Affiliate will not claim or hold itself out as claiming any
sponsorship by, endorsement by, or affiliation with AnswerSmart™ or its parent
corporation, subsidiary corporations, successors, and assigns.
Affiliate will not use any computer program, robot, or
other device which causes AnswerSmart™ to record a click-through where no such
click through has occurred.
Affiliate will not violate or encourage any third party or
entity to violate any law or regulation having the force of law, including, but
not limited to, laws prohibiting the sale of certain goods and services, laws
prohibiting the export of certain goods or services, and laws prohibiting the
obscenity.
Affiliate will not defame, impersonate or invade the
privacy of any third party or entity or encourage any third party or entity to
do the same.
Affiliate will not engage in any conduct that infringes the
rights of any third party, including, but not limited to, the intellectual
property, business, contractual, or fiduciary rights of others or encourage any
third party or entity to do the same.
Affiliate will not place links, promotional materials or
branding made available through this Program on a web site(s) that violates or
encourages others to violate any applicable law or regulation having the force
of law, or that includes offensive or hate content, or that promotes
discrimination based on race, sex, religion, sexual orientation, nationality,
disability, or age.
Affiliates will not engage in spamming practices or any
other such practices that could reflect negatively on our program.
Termination of Participation. Without limitation,
Affiliate's participation in the Program may be terminated, where AnswerSmart™, in its sole discretion, determines: (1) that any content, goods, services,
or links displayed on or made available through or in connection with
Affiliate's web site(s) are illegal, obscene, indecent, vulgar, offensive,
dangerous, or are otherwise deemed inappropriate by AnswerSmart™ in its sole
discretion; (2) that Affiliate or Affiliate's web site(s) is or has become the
subject of a government complaint or investigation; or (3) that Affiliate or
Affiliate's web site(s) violates, has violated, or threatens to violate either
the letter of these Terms and Conditions or the spirit behind them.
PROPRIETARY RIGHTS
License. Affiliate is hereby granted a non-exclusive,
non-transferable license to copy onto and display from Affiliate's web site(s)
the links, promotional materials, and branding made available through the
Program in accordance with, and subject to, these Terms and Conditions during
such time as Affiliate is eligible to participate, and is, in fact,
participating, in the Program. Except as expressly stated herein, Affiliate
shall not make any other use of AnswerSmart™'s trademarks, service marks,
copyrighted content, or other material protected by any proprietary rights.
AnswerSmart™ Intellectual Property. Affiliate
acknowledges and agrees that the content available through the Program,
including, but not limited to, links, promotional materials, and branding, and
the content and Services available from AnswerSmart™ are protected by
copyright, trademark, patent, or other proprietary rights and laws, and may not
be used in any manner other above.
COMPENSATION
Commissions. AnswerSmart™ shall compensate each Affiliate
in accordance with AnswerSmart™'s then current commission schedule for each
sale of a AnswerSmart™ product by a visitor to Affiliate's web site as
generated by and through the link(s) that is (are) displayed on Affiliate's web
site(s). Such commissions shall be payable in United States dollars.
Time of Payments. Commissions shall be paid to Affiliate
beweekly; provided that Affiliate earns the right to receive at least $50 in
commissions for a given period. Any unpaid commissions earned in one period
shall be paid in the next period in which the total unpaid commissions earned by
Affiliate exceeds $50. AnswerSmart™ reserves the right to deduct from
Affiliate's next period commission payment any and all commissions corresponding
to any cancelled and refunded AnswerSmart™ orders. Upon termination of the
program or termination of Member's participation, Member shall be paid all
commissions that total at least $50. Lesser amounts shall not be paid.
Forfeiture of Accrued Commissions in Cases of Breach. Any
Affiliate who violates these Terms and Conditions will immediately forfeit any
right to accrued commissions.
TERMINATION
Termination. Affiliate's participation in the Program is
terminable at any time and for any reason or for no reason at all, in AnswerSmart™ sole discretion. Without limitation, Affiliate's participation in the
Program shall be deemed automatically terminated immediately upon Affiliate's
violation of these Terms and Conditions or of any applicable law or regulation
having the force of law. In addition, without limitation, Affiliate's
participation in the Program may be terminated where AnswerSmart™, in its sole
discretion determines: (1) that any content, goods, services, or links displayed
on or made available through or in connection with Affiliate's web site(s) are
obscene, indecent, vulgar, offensive, dangerous, or are otherwise deemed
inappropriate by AnswerSmart™, in its sole discretion; (2) that Affiliate or
Affiliate's web site(s) is or has become the subject of a government complaint
or investigation; or (3) that Affiliate or Affiliate's web site(s) threatens to
violate either the letter of these Terms and Conditions or the spirit behind
them.
Effect of Termination. Upon termination, Affiliate shall
immediately cease and desist from exercising any rights conferred by these Terms
and Conditions, including, without limitation, from making any use of the links,
promotional materials, and branding made available through the Program. Upon
termination, Affiliate may not register for any subsequent participation in the
Program or rejoin the Program, without the prior, written consent of AnswerSmart™.
Waiver. Affiliate expressly waives any statutory or other
legal protection in conflict with the provisions of this section.
AFFILIATE'S PRIVACY
Password. Affiliate shall receive a password to access
Affiliate's account. Affiliate is entirely responsible for any and all
activities which occur under Affiliate's password. Affiliate agrees to keep its
password confidential, to allow no other person or company to use its password,
and to notify AnswerSmart™ promptly if Affiliate has any reason to believe
that the security of its account has been violated.
Technical Access. Affiliate acknowledges and agrees that
the technical processing of Affiliate's registration information is and may be
required: (a) for the Program to function; (b) to conform to the technical
requirements of connecting networks; (c) to conform to the technical
requirements of the Program; or (d) to conform to other, similar technical
requirements. Affiliate also acknowledges and agrees that AnswerSmart™ may
access Affiliate's account and its contents as necessary to identify or resolve
technical problems or respond to complaints about the Program; provided,
however, that nothing in this Section shall impose such a duty on AnswerSmart™.
Contact. AnswerSmart™ may contact Affiliate directly from
time to time via telephone or email.
INDEMNITY
Affiliate agrees to indemnify and hold harmless AnswerSmart™, and its parents, subsidiaries, affiliates, officers, directors,
shareholders, employees and agents, from any claim or demand, including, without
limitation, penalties, interest, reasonable attorneys' fees and costs claimed,
demanded, or incurred in connection with any claim or demand, made by any third
party due to or arising directly or indirectly out of Affiliate's conduct,
Affiliate's web site(s), Affiliate's participation in the Program, any content,
goods, services, or links displayed on or made available through or in
connection with Affiliate's web site(s), any claim that AnswerSmart™ is
obligated to pay tax obligations in connection with compensation paid to
Affiliate pursuant to the Program, any alleged violation of these Terms and
Conditions, any alleged violation of any applicable law or regulation, or any
alleged violation of any rights of another, including but not limited to
Affiliate's use of any content, trademarks, service marks, trade names,
copyrighted or patented material, or other intellectual property used in
connection with Affiliate's web site(s). AnswerSmart™ reserves the right, at
its own expense, to assume the exclusive defense and control of any matter
otherwise subject to indemnification by Affiliate, but doing so shall not excuse
Affiliate's indemnity obligations. AnswerSmart™ shall have the right to
participate in the defense of all claims pursuant to this Section.
DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
Disclaimer of Warranties. THE PROGRAM, INCLUDING ALL
SERVICES PROVIDED IN CONNECTION WITH THE PROGRAM, ARE PROVIDED "AS IS," WITH NO
WARRANTIES WHATSOEVER. ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES,
INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS, ARE EXPRESSLY
DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW. TO THE FULLEST EXTENT
PERMITTED BY LAW, AnswerSmart™ DISCLAIMS ANY WARRANTIES FOR THE SECURITY,
RELIABILITY, TIMELINESS, AND PERFORMANCE OF THE PROGRAM, INCLUDING THE SERVICES
PROVIDED IN CONNECTION WITH THE PROGRAM. YOU UNDERSTAND AND AGREE THAT ANY
MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH PARTICIPATION IN THE PROGRAM
IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE
FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS IN THE
DOWNLOAD OF SUCH MATERIAL. Some jurisdictions do not allow the disclaimer of
implied warranties. In such jurisdictions, the foregoing disclaimers may not
apply to you insofar as they relate to implied warranties.
Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL AnswerSmart™ BE LIABLE TO AFFILIATE ON ACCOUNT OF AFFILIATE'S PARTICIPATION IN
THE PROGRAM, USE OR MISUSE OF THE PROGRAM, RELIANCE ON THE PROGRAM, INABILITY TO
PARTICIPATE IN THE PROGRAM, OR FOR THE INTERRUPTION, SUSPENSION OR TERMINATION
OF THE PROGRAM. SUCH LIMITATION OF LIABILITY SHALL APPLY TO PREVENT RECOVERY OF
DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, AND PUNITIVE
DAMAGES (EVEN IF AnswerSmart™ HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES). SUCH LIMITATION OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE
FROM PARTICIPATION IN THE PROGRAM, USE OR MISUSE OF THE PROGRAM, RELIANCE ON THE
PROGRAM, FROM INABILITY TO PARTICIPATE IN THE PROGRAM, OR FROM THE INTERRUPTION,
SUSPENSION, OR TERMINATION OF THE PROGRAM (INCLUDING SUCH DAMAGES INCURRED BY
THIRD PARTIES). SUCH LIMITATION SHALL APPLY, WITHOUT LIMITATION, TO THE COSTS OF
PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOST PROFITS, OR LOST DATA. SUCH
LIMITATION SHALL APPLY WITH RESPECT TO THE PERFORMANCE OR NON-PERFORMANCE OF THE
PROGRAM OR ANY INFORMATION OR MERCHANDISE THAT APPEARS ON, OR IS LINKED OR
RELATED IN ANY WAY TO AnswerSmart™. SUCH LIMITATION SHALL APPLY
NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. SUCH
LIMITATION SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. In some
jurisdictions, limitations of liability are not permitted. In such
jurisdictions, the foregoing limitation may not apply to you.
RELEASE
Affiliate hereby agrees to release AnswerSmart™ and its
parents, subsidiaries, affiliates, officers, directors, agents, shareholders,
and employees from any and all claims, demands, debts, obligations, damages
(actual or consequential), costs, and expenses of any kind or nature whatsoever,
whether known or unknown, suspected or unsuspected, disclosed or undisclosed,
that Affiliate may have against them arising out of or in any way related to
such disputes and/or to the Program. Affiliate hereby agrees to waive all laws
that may limit the efficacy of such releases.
NO RESALE, ASSIGNMENT, OR SUBLICENSING
Affiliate agrees not to resell, assign, sublicense,
otherwise transfer, or delegate its rights or obligations under these Terms and
Conditions without the prior express written authorization of AnswerSmart™.
FORCE MAJEURE
Under no circumstances shall AnswerSmart™ be liable for
any delay or failure in performance under these Terms and Conditions resulting
directly or indirectly from acts of nature, forces, or causes beyond its
reasonable control, including, without limitation, Internet failures, computer
equipment failures, telecommunication equipment failures, other equipment
failures, electrical power failures, strikes, labor disputes, riots,
insurrections, civil disturbances, shortages of labor or materials, fires,
flood, storms, explosions, acts of God, war, governmental actions, orders of
domestic or foreign courts or tribunals, non-performance of third parties, or
loss of or fluctuations in heat, light, or air conditioning.
NOTICES
Notices or communications pursuant to these Terms and
Conditions shall be sent by electronic mail or in writing and shall be deemed
delivered upon receipt to the party to whom such communication is directed, at
the following addresses: (a) if to AnswerSmart™, such notices shall be
addressed to support@AnswerSmart™.com, (b) if to Affiliate, such notices
shall be addressed to the electronic mailing address specified when Affiliate
registers for participation in the Program, or (c) such other address as either
party may give the other by notice as provided above.
ENTIRE AGREEMENT
These Terms and Conditions constitute the entire agreement
between the parties with respect to the subject matter hereof and supersedes all
previous proposals, both oral and written, negotiations, representations,
writings and all other communications between the parties.
CHOICE OF LAW AND FORUM
These Terms and Conditions shall be governed by and
construed in accordance with, and all legal issues arising from or related to
Affiliate's participation in the Program shall be determined by, the laws of the
State of Maine without regard to that state’s conflict of law provisions. The
state and federal courts of Maine shall be the exclusive forum and venue to
resolve any and all disputes arising out of or relating to these Terms and
Conditions or to Affiliate's participation in the Program. Affiliate and AnswerSmart™ consent to personal jurisdiction and venue in the appropriate court
in Cumberland County, Maine.
NON-WAIVER AND SEPARABILITY
AnswerSmart™'s failure to exercise or enforce any right
or provision of these Terms and Conditions shall not constitute a waiver of such
right or provision. If a court of competent jurisdiction holds any provision of
these Terms and Conditions to be invalid, the parties nevertheless agree that
the court should endeavor to give effect to the parties intentions as reflected
in the provision, and agree that the other provisions of these Terms and
Conditions remain in full force and effect.
LIMITATION OF ACTIONS
Affiliate agrees that regardless of any statute or law to
the contrary, any claim or cause of action arising out of or related to
participation in the Program or to these Terms and Conditions must be filed
within one (1) year after such claim or cause of action arose, or be forever
barred.
CONSTRUCTIONS
All headings in these Terms and Conditions are for
convenience only and shall have no legal or contractual effect. Whenever the
context permits, the use of a particular gender shall include the masculine,
feminine and neuter genders, and any reference to the singular or the plural
shall be interchangeable with the other.
RELATIONSHIP OF PARTIES
AnswerSmart™ and Affiliate are independent contractors
under these Terms and Conditions, and nothing herein shall be construed to
create a partnership, joint venture, agency, or employment relationship. Neither
party pursuant to these Terms and Conditions has authority to enter into
agreements of any kind on behalf of the other and neither party shall be
considered the agent of the other. Under these Terms and Conditions, Affiliate
is contracting solely to provide advertising services for AnswerSmart™ in
accordance with these Terms and Conditions.
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