TERMS & CONDITIONS
This AFFILIATE AGREEMENT (hereinafter referred to as the “Agreement”) is a legally binding agreement describing the relationship between
Smart Media Star, s.r.o., Fialková 5703/26, 903 01 Senec, Slovakia
(hereinafter jointly as “SMS”or “Us”)
and you as the Affiliate in the affiliate program “Smart Media Cash” .
By signing up as an Affiliate, you acknowledge that you have read, understand and agree to all of the terms and conditions contained below.
1. Provision of Services
During the term of this Agreement, SMS engages the Affiliate, and the Affiliate agrees to be engaged, as a non-exclusive Affiliate of all of SMS's sites. The Affiliate agrees to promote such sites and services in compliance with the terms of this Agreement.
Affiliates shall not purchase or promote SMS's sites on domains in any TLD (top-level domain) that infringe upon our copyrights. This includes terms such as smartmediacash.com etc. or any variation thereof. Failure to comply will result in immediate termination of the agreement and all earnings voided. Affiliates shall at no time misrepresent their websites as official. Failure to comply will result in immediate termination of agreement and all earnings voided.
2. Affiliate Links
The Affiliate shall receive, or be made available thereto, banner, button and/or text links to SMS's websites (hereinafter referred to as “Links”). These Links may contain logos and/or identifying marks of any of SMS's websites. The Affiliate's use of these Links shall at all times be subject to the Terms and Conditions hereof. The Affiliate has the discretion to display these Links in accordance with his own website design, provided that at no time shall the Affiliate be permitted to alter, modify or expand such Links in any way without the prior written consent of SMS.
The Affiliate may not use any content of Smart Media Cash for promotion purposes, save for banners, promotion videos and/or other content SMS explicitly labels as “promotional content”. The Affiliate shall not change or alter the promotional content in any way. All promotional content is exclusively assigned to a specific Smart Media Cash website and may only be used to promote the specified website. At no time and under no circumstances is the Affiliate permitted to use such content to promote another site, even if it is a part of the Smart Media Cash network. No links to other sites are permitted on pages where Smart Media Cash and/or SMS promotional content is used. Upon termination of this agreement by either party the content must be deleted from the Affiliate's server, offline storage and any other media where the Affiliate has stored this content. The Affiliate must under no circumstances make such content available to minors.
4. Relationship of Parties
Nothing in this Agreement shall be construed to create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. The Affiliate has no authority, express or implied, to make, accept, or negotiate any offers or representations on behalf of SMS. Furthermore, the Affiliate may not advertise SMS's sites in a fashion that creates the impression that the Affiliate's sites are officially connected with Smart Media Cash or any of its websites or products.
5. Affiliate Commissions
The Affiliate Commissions are listed on each of SMS’s sites under sub-site “portals” for the respective site. SMS reserves the right to alter the Affiliate Commissions by changing the respective sub-site “portals” from time to time, provided that the Affiliate is informed by email at least 30 days in advance. In any case, Affiliate Commissions will be calculated only on the bases of funds actually received by SMS (i.e., payments which are thereafter not effected [eg., chargebacks] are not part of the calculation of the Affiliate Commissions) less payment fee, disbursements (eg., fees for chargebacks) and taxes.
The Affiliate hereby authorizes SMS to issue invoices on his behalf addressed to SMS. The payment period for such invoice may not exceed 6 weeks.
Payouts of the Affiliate Commissions are effected every four to six weeks by wire transfer, or other means that may be offered. The pay period for each month begins on the 1st day of the month and concludes on the last day of that month. Payments will be made between one and seven days after the end of the following pay period. The minimum payout is $150. If this amount is not reached in a single pay period, the amount will be carried over to the next period(s) until the minimum is reached (without interest). Wire transfers are subject to a $35 service fee which can be deducted from the wire amount.
Payments through Paypal are usually allowed only if the payable amount is lower than $5,000.
5.4 The Affiliate also authorizes the SMS to delegate the invoicing & payment according to 5.1 to 5.3 to a subcontractor. The SMS may or may not choose to use a subcontractor in its own discretion.
6. Ownership of Work Product/Proprietary Materials
All materials, documents, data, software, information and inventions supplied to the Affiliate by or on behalf of SMS shall be and remain the sole and exclusive property thereof. All such property shall be delivered to SMS by the Affiliate, immediately upon demand, or destroyed, as may be requested.
The Affiliate acknowledges that he receives, for the term of this Agreement, a non-exclusive, non-transferable, revocable license to
access SMS's site through links solely in accordance with the terms of this Agreement, and
solely in connection with such links, to use SMS's logos, trade names, trademarks and other proprietary identifying material, solely for the purpose of promoting SMS as contemplated herein.
The Affiliate may not alter, modify or change the above-listed items in any way. The Affiliate shall not make any specific use of any SMS proprietary material for purposes other than promoting the business of SMS on behalf of SMS. The Affiliate agrees not to use such material in any manner that is disparaging or otherwise portrays SMS in a negative light. SMS reserves all rights of its logos, marks, names and other proprietary material, and all other intellectual property rights thereto. SMS may revoke the rights granted to the Affiliate at any time, for any reason, upon written notice. All rights granted pursuant to this section shall terminate upon the effective date of expiration or termination of this Agreement.
The Affiliate acknowledges that any act of unauthorized promotion of SMS’s products, websites, software or other intellectual property on third parties’ sites as well as any other breach of SMS‘s intellectual property rights may result in immediate termination of this Agreement in accordance with the Clause 14.2.
SMS may authorize the Affiliate to promote SMS’s products, websites, software or other intellectual property on third parties’ sites via electronic communication. Such authorization must be explicit in (i) determining promotable intellectual property, (ii) channels of promotion including direct specification of third parties’ sites and (iii) the term of expiry of the authorization. Promotion of the SMS’s products, websites, software or other intellectual property on third parties’sites under valid authorization is not considered breach of intellectual property rights under this Agreement.
All notices or demands hereunder shall be given in writing and will be deemed sufficiently given when transmitted via electronic mail on the SMS website. By executing this Agreement, the Affiliate confirms his or her understanding that SMS will periodically send materials via email to its Affiliates, including newsletters, and the Affiliate agrees to accept such email.
8. Legal Age of Affiliates
Any Affiliate or representative thereof must be at least eighteen (18) years of age to participate in any Smart Media Cash program. The Affiliate, by executing this Agreement, affirms that he or she is at least 18 years old.
9. Compliance with Applicable Law
The Affiliate shall at all times conduct all activities undertaken pursuant to this Agreement or in any way associated with Smart Media Cash in compliance with all applicable Federal, State or International laws, rules, regulations or ordinances applicable in any jurisdiction in which the Affiliate operates. The Affiliate understands and agrees that any violation of applicable law in any jurisdiction by the Affiliate while acting pursuant to his relationship with Smart Media Cash and/or SMS, such Affiliate will indemnify and defend any claims brought against SMS, its employees, officers, or related entities. The Affiliate agrees to not only defend in such claim, but reimburse SMS for any expenses incurred as a result of the Affiliate's violation, including marketable attorneys' fees , court costs, and other expenses associated with the Affiliate's violation. The Affiliate shall notify SMS immediately of any actual or potential violation.
10. SPAM LAWS
THE FOLLOWING APPLIES TO ALL AFFILIATES, AND CONCERNS THE TRANSMISSION OF COMMERCIAL AND/OR SEXUALLY-ORIENTED E-MAILS. IT DOES NOT WAIVE OR SUBSTITUTE THE SPAM POLICY DESCRIBED IN THE TERMS AND CONDITIONS BUT RATHER ADDS TO IT:
THE “CAN-SPAM ACT OF 2003” (THE “ACT”), WHICH BECAME EFFECTIVE JANUARY 1, 2004, APPLIES TO ANY COMMERCIAL E-MAILS SENT TO ANY U.S. RECIPIENT, SEXUALLY EXPLICIT OR OTHERWISE. FULL COMPLIANCE WITH THE ACT IS REQUIRED AS A TERM OF THIS AGREEMENT, AND AFFILIATES ARE RESPONSIBLE FOR READING AND UNDERSTANDING ALL PROVISIONS THEREOF. THE ACT IS AVAILABLE AT:
AFFILIATES MUST COMPLY WITH THE ACT, AND ANY LIABILITY/DAMAGES THAT ARISE FROM FAILING TO COMPLY WILL BE THE SOLE RESPONSIBILITY OF THE AFFILIATE. THE FOLLOWING OUTLINES THE BASIC REQUIREMENTS OF THE ACT, BUT IS INTENDED ONLY TO SERVE AS A GUIDELINE, AND NOT AS A REPLACEMENT FOR READING AND UNDERSTANDING THE ACT ITSELF.
THIS IS NOT INTENDED TO SERVE AS LEGAL ADVICE, AND IT IS RECOMMENDED THAT YOU AND YOUR LEGAL COUNSEL DETERMINE FOR YOURSELVES HOW BEST TO COMPLY.
ADULT/SEXUALLY EXPLICIT E-MAIL CONTENT E-MAIL CONTAINING SEXUALLY ORIENTED MATERIAL MUST INDICATE THAT THIS TYPE OF CONTENT IS CONTAINED IN THE E-MAIL BY INCLUDING A WARNING LABEL IN THE SUBJECT HEADING. THE RECIPIENT MUST TAKE FURTHER ACTION TO VIEW THE SEXUALLY ORIENTED MATERIAL; THE E-MAIL CONTENT INITIALLY VIEWABLE TO THE RECIPIENT WHEN THE E-MAIL IS OPENED MUST INCLUDE ONLY THE WARNING LABEL AND A MECHANISM FOR ACCESSING, OR INSTRUCTIONS ON HOW TO ACCESS, THE SEXUALLY ORIENTED MATERIAL.
ALL COMMERCIAL E-MAILS THE ACT PROHIBITS THE SENDING OF ANY COMMERCIAL E-MAILS (SOLICITED OR UNSOLICITED) THAT CONTAIN THE FOLLOWING (IT IS REQUIRED THAT AFFILIATES READ AND UNDERSTAND THE DEFINITIONS RELATED TO THESE REQUIREMENTS IN THE ACT ITSELF):
FALSE OR MISLEADING SUBJECT AND/OR HEADER INFORMATION.
SUBJECT AND/OR HEADER INFORMATION THAT INCLUDES AN ORIGINATING E-MAIL ADDRESS, DOMAIN NAME OR IP ADDRESS OBTAINED THROUGH FALSE OR FRAUDULENT MEANS, BUT IS OTHERWISE ACCURATE.
SUBJECT AND/OR HEADER INFORMATION THAT FAILS TO ACCURATELY IDENTIFY THE COMPUTER USED TO ORIGINATE THE E-MAIL FOR THE PURPOSE OF DISGUISING THE ORIGIN OF THE E-MAIL.
UNSOLICITED COMMERCIAL E-MAIL ANY UNSOLICITED COMMERCIAL E-MAIL MUST INCLUDE:
CLEAR AND CONSPICUOUS IDENTIFICATION OF THE E-MAIL AS AN “ADVERTISEMENT” OR “SOLICITATION.”
NOTICE THAT THE RECIPIENT MAY ELECT NOT TO RECEIVE, OR “OPT-OUT,” OF ADDITIONAL E-MAIL.
A RETURN E-MAIL ADDRESS OR OTHER EFFECTIVE INTERNET MECHANISM THE E-MAIL RECIPIENT MAY USE TO NOTIFY YOU THAT THE RECIPIENT WISHES TO “OPT-OUT” (DOES NOT WISH TO RECEIVE) OF ADDITIONAL COMMERCIAL E-MAILS.
A PHYSICAL POSTAL ADDRESS OF THE SENDER.
THE “OPT-OUT” MECHANISM REQUIRED UNDER THIS PROVISION MUST BE AVAILABLE FOR AT LEAST 30 DAYS AFTER THE TRANSMISSION OF THE ORIGINAL E-MAIL. ADDITIONALLY, ANY OPT-OUT REQUESTS MUST BE HONORED WITHIN 10 DAYS OF THE RECEIPT OF SUCH REQUEST.
YOU MAY NOT SELL OR OTHERWISE TRANSFER TO ANYONE ELSE THE E-MAIL ADDRESSES OF THOSE PERSONS WHO ELECT TO OPT-OUT.
ADDITIONAL PROHIBITED ACTIVITIES THE FOLLOWING ADDITIONAL ACTIVITIES ARE PROHIBITED BY THE ACT:
TRANSMITTING COMMERCIAL E-MAIL USING E-MAIL ADDRESSES OBTAINED FROM WEBSITES, PROPRIETARY ONLINE SERVICES, OR OTHER BUSINESS OR ENTITY THAT HAS REPRESENTED TO ITS USERS THAT IT WILL NOT SHARE, SELL OR OTHERWISE TRANSFER THE RECIPIENTS' E-MAIL ADDRESSES OR OTHER INFORMATION TO ANOTHER PARTY.
TRANSMITTING COMMERCIAL E-MAIL USING E-MAIL ADDRESSES OBTAINED USING SOFTWARE OR SOME OTHER DEVICE THAT GENERATES POSSIBLE E-MAIL ADDRESSES BY COMBINING NAMES, LETTERS AND/OR NUMBERS (SUCH AS A RANDOM EMAIL ADDRESS GENERATOR).
USING ANY COMPUTER WITHOUT AUTHORIZATION TO SEND E-MAIL MESSAGES THAT VIOLATE ANY PROVISION OF THE ACT.
USING A COMPUTER TO RELAY OR RETRANSMIT E-MAIL, WITH THE INTENT TO DECEIVE OR MISLEAD RECIPIENTS, INTERNET SERVICE PROVIDERS, OR OTHERS REGARDING THE ORIGIN OF THE E-MAIL.
USING A SCRIPT OR OTHER AUTOMATED MEANS TO CREATE AND/OR REGISTER E-MAIL ACCOUNTS OR OTHER ONLINE ACCOUNTS FROM WHICH COMMERCIAL E-MAIL IN VIOLATION OF THE ACT WILL BE SENT OR FORWARDED.
COMPLIANCE WITH THE ACT BECAME AN EXPRESS CONDITION OF PARTICIPATION AS AN AFFILIATE ON THE DATE IT BECAME EFFECTIVE, AS THE AFFILIATE AGREEMENT HAS ALWAYS REQUIRED COMPLIANCE WITH APPLICABLE LAW. IT IS IMPORTANT TO NOTE, HOWEVER, THAT THESE REQUIREMENTS ARE IN ADDITION TO OTHER ANTI-SPAM PROVISIONS CONTAINED IN THESE TERMS.
FAILURE TO COMPLY WITH THE ACT WILL RESULT IN THE IMMEDIATE TERMINATION OF YOUR ACCOUNT, AND YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD ADULT PAYMASTER HARMLESS, AS WELL AS ITS AGENTS, EMPLOYEES AND REPRESENTATIVES, FROM ANY COST, EXPENSE, LAWSUIT, CLAIM, OR LIABILITY OF WHATEVER NATURE WHATSOEVER ARISING OUT OF ANY VIOLATION OF THE ACT, IN ADDITION TO YOUR AGREEMENT TO INDEMNIFY SMS AS PROVIDED FOR ELSEWHERE IN THIS AGREEMENT.
11. Indemnification For Civil Actions Brought Against SMS
In addition to indemnifying SMS for any violation of law as noted above, the Affiliate also agrees to indemnify and defend SMS in any civil action; for the avoidance of doubt Smart Media Star, s.r.o. may engage a law firm of its own choice without consulting with the Affiliate. The Affiliate shall perform the work at his own risk, and shall notify SMS immediately in the event that a civil legal action is threatened or filed. The Affiliate shall indemnify and hold harmless SMS from any claim, demand, loss, liability, damage or expense arising in any way from the Affiliate's work.
12. Liability/Force Majeure
SMS may only be liable in case SMS acted with gross negligence or with intent.
SMS shall not be liable to the Affiliate for inaccessibility to any of its services or “downtime” due to, but not limited to: i) server failure; ii) Internet weather (or other Internet/ISP problems beyond the control of SMS); iii) processor downtime; iv) routine or emergency maintenance; or v) any other technical difficulties which may occur in the day-to-day operations of Internet websites including the loss of sales and traffic statistics. SMS may, but shall not be obligated to, provide assistance and/or alerts to Affiliates regarding such conditions.
13. Term of this Agreement
The term of this Agreement will begin upon SMS's approval of Affiliate's application and the subsequent execution of this Agreement and will end when terminated by either party, or as otherwise described herein. Either party may terminate this Agreement at any time, with or without cause, by giving the other party notice of termination. Upon such notice, the Affiliate agrees to promptly destroy or return any and all artwork or other proprietary material pertaining to SMS in the Affiliate's possession or control to SMS. Furthermore, the Affiliate shall immediately remove from any and all Affiliate sites any and all SMS marks, Links and references to any of Smart Media Cash's sites. If this Agreement is terminated by SMS due to a violation of the terms of this Agreement, the Affiliate understands that he shall not be eligible to receive any commission payments, even for commissions earned prior to the date of termination. If this Agreement is terminated for any other reason, the Affiliate acknowledges that he shall only be eligible to earn a commission on sales occurring during the term of the Agreement. SMS reserves the right to terminate this Agreement with any Affiliate whose chargebacks exceed 5% of their sign up ratio.
SMS and/or the Affiliate may terminate this Agreement for any reason with three month notice to the end of each month.
SMS may terminate this Agreement upon good cause with immediate effect. A good cause within the meaning of this section 6.2 may be Affiliates banners and/or other promotions within the Smart Media Cash network, including SMS’s sites as well as Affiliates’ sites which may be used by the end user contains objectionable material, including but not limited to a) unlawful or harmful content; b) threatening or defamatory content; c) a site that facilitates or promotes illegal activity; d) a site that promotes fraudulent or unethical business practices; e) if the site promotes discrimination based on race, sex, religion, nationality, disability or age; f) incorporates or displays any materials which infringes or assists others to infringe on any copyright, trademark or other intellectual property right; g) a site that promotes “warez,” adult passwords, rape, bestiality, or child pornography.
14.2.1 (termination for good cause)
In the event of intellectual property breach as described in the Clause 6.4, Smart Media Star, s.r.o. may terminate this Agreement with immediate effect and all Affiliate’s earnings void.
With the exception of certain verified opt-in mailings, SMS prohibits any form of unsolicited bulk emailing (commonly referred to as “spamming”) by any Affiliate, either related or unrelated to SMS. The Affiliate's participation in verified opt-in mailings shall only be permitted upon prior written consent of SMS. For the purpose of this Agreement, spamming also includes any similar, abusive behavior including, but not limited to automatically sending scripted text (and website URL) disguised as “chat” into any third party chat room, bulletin board or website. Any report of the Affiliate spamming will be investigated immediately, and SMS may, in its sole discretion, suspend the account of the Affiliate in question pending the review or investigation of the reported spamming. SMS will terminate any Affiliate found, in its sole discretion, to have engaged in this prohibited behavior, and the termination provisions above will apply. SMS reserves the right to take any other action it deems necessary in this regard, and further reserves the right to change these standards from time to time, to be effective upon notice to the Affiliate. The Affiliate's placement of Links and promotion of SMS shall at all times accurately reflect the nature of SMS's website. Any misleading or blind links may, in SMS's sole discretion, be considered a violation of the terms hereof.
This Agreement may be amended or modified only by a written document signed by both parties hereto. Each party shall have the right to enforce the provisions of this Agreement in strict accordance with its terms. The failure of either party at any time to enforce its rights hereunder strictly in accordance with the same shall not be construed as having created a custom contrary to the specific provisions hereof or as having in any way modified or waived same.
16. Entire Agreement
This Agreement sets forth and constitutes the entire agreement and understanding between SMS and the Affiliate with respect to the subject matter hereof, and it supersedes all previous oral or written communications, representations, or agreements between the parties concerning the subject matter hereof.
The respective rights and obligations of the parties set forth in this Agreement shall indefinitely survive the expiration or termination of this Agreement to the extent necessary to the intended preservation of such rights and obligations.
18. Governing Law
The substantive law of Slovakia shall be applicable.
19. Electronic Signatures
The parties hereto acknowledge that an electronic affirmation to be bound by the terms of this agreement shall serve for all purposes in the manner and with the legal force and effect of a written signature.