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Terms and Conditions
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SMX Affiliate Program Terms and Conditions
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Social Media India Ltd., Laxmi Cyber City , 3rd Floor, 'B' Block, Kondapur, Hyderabad
- 500 084, India, provides you access to our SMX Affiliate Program subject to your
compliance with the terms and conditions below (“Agreement”). Please
read this Agreement carefully. By enrolling or participating as an SMX Affiliate
(“Affiliate”) with SMX whereby you receive compensation from a Merchant
based on tracked actions for products or services, by placing Merchant Links on
your website, you, the Affiliate, agree to be bound by these terms and conditions.
1. DEFINITIONS
The following terms shall have the meanings set forth below
“Affiliate” means a person or company that agrees to promote a Merchant's
products or website on the Merchant's Terms in exchange for payment.
“Affiliate Program” means a pay-for-performance program where an Affiliate
receives a commission for sending a visitor to a Merchant Site or generating a Lead
or Sale.
“Affiliate Site” means the Internet World Wide Web presence operated
by or for Affiliate, (as modified to comply with the provisions of this Agreement,
and future versions, upgrades, successors and replacements thereof).
“Campaign” means a logical grouping of Events through which Merchants
manage their program. For example, a campaign might be called ‘Book Sales’
and include Events which record only sales for books.
“End User” means a user who clicks to the Merchant Site from the Merchant
Links.
“End User Data” means all information and data of an End User, including,
but not limited to, all tax return data, name, address, telephone number and e-mail
address.
“Event” means individual actions such as clicks (the clicking of a link
by an internet user) or sales within each Campaign that are tracked and recorded
in an SMX Transaction Table.
“Intellectual Property” means all industrial and intellectual property
rights existing from time to time including any patents, design rights, registered
designs, trademarks, service marks, copyrights, moral rights, trade secrets, know-how,
and all applications and registrations therefore, and all goodwill associated therewith.
“Lead” means when a user performs a specified action such as filling
out a form, registering, or downloading from a Merchant's Site.
“SMX Codes” are the HTML (HyperText Markup Language, the authoring language
used to create documents on the World Wide Web) code and tags provided to the Affiliate
via the SMX Affiliate Manager. These codes are intended to be placed as provided
into the HTML of approved Affiliate websites.
“SMX Transaction Table” means a table in SMX’s online database
that contains information about visitor actions related to Merchant Links and Affiliates.
“SMX Transaction” means any Event caused by the action of an End User
which is recorded by SMX and written to the SMX Transaction Table.
“SMX Services” means the various related content, links, products and
services provided by SMX on or through the SMX Site.
“SMX Site” means the Internet World Wide Web presence operated by or
forSMX, located on the Internet through the http://web.smxchange.com URL (as modified
to comply with the provisions of this Agreement, and future versions, upgrades,
successors and replacements thereof).
“Marks” means logos, trademarks, trade names, service marks or other
identifying emblems, words or designs of SMX or Merchant , as the case may be, to
designate and identify itself or the particular products or services its offers.
“Merchant” means a person or company that places links into the SMX
Site and agrees to pay Affiliates for promoting their products or website via these
links.
“Merchant Link(s)” means an advertisement in the form of a banner, text
link, or storefront displayed on an Affiliate Site or in an email or newsletter.
When clicked, the link directs the user to a Merchant Site.
“Merchant Service(s)” means the product(s) or service(s) offered by
the Merchant through the Merchant Site.
“Merchant Site” means the Internet World Wide Web presence operated
by or for Merchant, (as modified to comply with the provisions of this Agreement,
and future versions, upgrades, successors and replacements thereof).
“Sale” means when an End User purchases a Merchant Service.
“Service Level Minimums” means industry standard service levels for
like services, including, without limitation, standards for supporting online transactions,
providing accurate and secure transmission of personal, credit card and other information.
All other initially capitalized terms shall have the meanings assigned to them in
this Agreement.
2. LICENSES/OWNERSHIP OF SMX SITE
2.1 Rights Granted by Affiliate
(a) License; License Restrictions. Affiliate grants to SMX a nonexclusive, nontransferable,
royalty-free (without right to sublicense) license to use and display, during the
term of this Agreement, the Affiliate Marks, solely for the purpose of linking to
the Affiliate Site. SMX agrees that the Affiliate Marks are and will remain the
sole property of Affiliate and agrees not to contest the ownership of such Affiliate
Marks, nor misappropriate the Affiliate Marks for SMX’s own use. Affiliate
reserves all rights to control the use of the Affiliate Marks, and SMX shall not
change or modify the Affiliate Marks in any manner without prior written authorization
from Affiliate.
(b) Reservation of Rights. Except as expressly granted in this Agreement, SMX shall
have no other rights of any kind in the Affiliate Marks or the Affiliate Site. Under
no circumstances will anything in this Agreement be construed as granting, by implication,
estoppel or otherwise, a license to any of Affiliate’s Intellectual Property
or proprietary technology other than the use of the Affiliate Marks in accordance
with the terms of this Agreement. SMX acknowledges that the Affiliate Services are
the sole property of Affiliate, and this Agreement only grants a limited right to
link to the Affiliate Site under the terms and conditions of this Agreement. The
Affiliate Marks may not be used as a feature or design element of any other logo
unless agreed upon by Affiliate.
3. CPM Offers
CPM offers (banners, skyscrapers and leaderboards) must be placed above the fold
of your site's Web pages. You may not run the ad code at the bottom of the pages.
We treat as one impression per page even though you place more than one.
All CPM statistics shown are subject to auditing.
CPM payments are made on a Net 30 Days basis after receiving the invoice and the
Total Impressions will be set to zero after payment.
Impressions may trail up to 24 hours.
SMX reserves the right to suspend the account and forfeit all his earnings, if we
find any adult content or suspicious traffic from the website.
4. EXCLUSIVITY
The Affiliate is not barred by this agreement from participating in any other Affiliate
Program offered by an SMX competitor. In addition, with SMX, an Affiliate can join
any Merchant Affiliate Program subject to the approval of that Merchant and any
additional terms and conditions they may specify.
5. PAYMENTS
5.1 Commission Fees
Affiliate will receive commission for Events based on the reports from the commission
structure offered by Merchant (as such are offered from time to time) for all approved
Merchant Campaigns.
5.2 Payment Terms
(a) All payments are based on SMX Transactions as defined, accounted, and audited
by SMX.
(b) All accounts will be settled in Indian Rupees. No checks will be issued for
any amounts less than Rs.500. The minimum payment for Money Bookers is also Rs.500
if you opt for Money Bookers. Any amounts less than Rs.500 will carry over to the
next month. Every Affiliate account (where applicable) must have a unique PAN Number.
(c) Affiliate’s right to access Affiliate account with SMX is subject to any
limits established by SMX, or its contractors.
(d) Affiliate is responsible for maintaining the correct contact and payment information
associated with Affiliate account. This must be done online using the SMX Affiliate
Manager. Returned or cancelled payment bank/service fees due to any error in Affiliate
contact or payment information are Affiliate’s responsibility, and will be
deducted from Affiliate account balance.
(e) All Indian based Publishers are required to raise Invoice on “Social Media
India Ltd” giving their Service tax No and PAN. Providing PAN is Mandatory
and we will be deducting TDS on amount payable to you. If the Publisher does not
raise Invoice continously for 6 months, then his entire past earnings would be cancelled.
6. REPRESENTATIONS, WARRANTIES AND COVENANTS
6.1 By SMX
SMX represents, warrants and covenants that: (i) it has sufficient rights to grant
Affiliate the rights and licenses set forth herein; (ii) to the best of its knowledge,
the SMX Services and the SMX Site do not and will not violate any applicable law
or regulation; (iii) the execution, delivery and performance of this Agreement by
it does not conflict with any agreement to which it is a party or by which it may
be bound; (iv) it has full legal authority to enter into this Agreement and to carry
out the provisions hereof.
6.2 By Affiliate
Affiliate represents, warrants and covenants that: (i) it has sufficient rights
to grant SMX the rights and licenses set forth herein; (ii) to the best of its knowledge,
the Affiliate Services and the Affiliate Site does not and will not violate any
applicable law or regulation; (iii) the execution, delivery and performance of this
Agreement by it does not conflict with any agreement to which it is a party or by
which it may be bound; and (iv) it has full legal authority to enter into this Agreement
and to carry out the provisions hereof.
7. DISCLAIMERS; LIMITATION OF LIABILITY
7.1 Disclaimer of Warranties
Except As Set Forth In Sections 3 and 6, Affiliate’s Obligation To Meet Service
Level Minimums, And SMX’s Obligation To Meet A Service Level Guarantee, Neither
Party Makes Any Warranties Of Any Kind, Either Express Or Implied, As To The Affiliate
Service Or The SMX Service Including, But Not Limited To, A Warranty Of Fitness
For A Particular Purpose Or Warranty Of Merchantability.
7.2 Limitation of Liability
Except As Provided In Sections 8 And 9, In No Event Shall Either Party, Or Its Respective
Affiliates, Subsidiaries, Parent Companies Or Their Respective Officers, Directors,
Agents Or Employees, Be Liable To The Other Party For Any Indirect, Incidental,
Special, Exemplary, Potential Or Consequential Damages (Including, Without Limitation,
Loss Of Opportunity, Loss Of Goodwill, Lost Profits Or Lost Revenues) Even If A
Party Has Been Previously Advised Of The Possibility Of Such Damages.
8. FORCE MAJEURE
A party shall not be considered to be in default in the performance of any obligations
under this Agreement when a failure of performance shall be due to an uncontrollable
force. The term “uncontrollable force,” as used in this Agreement, shall
mean an unanticipated event which is not reasonably within the control of the affected
party and which by exercise of reasonable due diligence, such affected party could
not reasonably have been expected to avoid, overcome or obtain or cause to be obtained
a commercially reasonable substitute there for. Such causes may include, without
limitation, the following: flood, earthquake, tornado, storm, fire, terrorist attack,
explosion, public emergency, civil disobedience, labor dispute, labor or material
shortage, sabotage, restraint by court order or public authority (whether valid
or invalid), and action or non-action by or inability to obtain or keep the necessary
authorizations or approvals from any governmental agency or authority; however,
no party shall be relieved of its obligations hereunder, if its failure of performance
is due to removable or remediable causes which such party fails to remove or remedy
using commercially reasonable efforts within a reasonable time period. Either party
rendered unable to fulfill any of its obligations under this Agreement by reason
of an uncontrollable force shall give prompt notice of such fact to the other, followed
by written confirmation of that notice, and shall exercise due diligence to remove
such inability with all reasonable dispatch.
9. INDEMNIFICATION
9.1 By Affiliate
Affiliate agrees to indemnify, defend and hold harmless SMX and its officers, directors,
employees, agents, successors and assigns from and against any and all losses, liabilities,
damages, penalties and claims and all related costs and expenses (including reasonable
attorneys’ fees) related to claims made by third parties against SMX: (i)
alleging that Affiliate’s Marks or other Intellectual Property infringe the
patents, copyrights, trademarks or service marks or other Intellectual Property
rights of such third parties; (ii) arising out of or relating to the Affiliate Service
or the Affiliate Marks; or (iii) due to a breach by Affiliate of its warranties,
representations, obligations or covenants or otherwise breaches this Agreement.
9.2 Procedures
The Indemnified Party shall (i) promptly notify the Indemnifying Party in writing
of such suit, claim, or proceeding; (ii) give the Indemnifying Party reasonable
information, assistance and cooperation required to defend such suit, claim, or
proceeding; and (iii) allow the Indemnifying Party to control the defense of any
such action and all negotiations for its settlement or compromise. The Indemnified
Party may be represented in the defense of any such claim, at the Indemnified Party's
expense, by counsel of the Indemnified Party's selection. The Indemnifying Party
shall have no liability for settlements or costs incurred without its consent. The
Indemnifying Party shall not enter into any settlement that imposes liability or
restrictions on the Indemnified Party without the Indemnified Party's prior written
consent, such consent not to be unreasonably withheld or delayed.
10. OWNERSHIP OF USER DATA; CONFIDENTIALITY
10.1 Confidentiality
SMX and Affiliate agree that any and all information identified by the other as
“Confidential” and/or “Proprietary”, or which, under all
of the circumstances, ought reasonably to be treated as Confidential and/or Proprietary,
will not be directly or indirectly disclosed to any third person without the express
consent of the other party for a period of three (3) years following termination
of this Agreement and that neither party will make use of Confidential Information
except under the terms of this Agreement. These confidentiality obligations shall
not apply to any information which: (i) is or subsequently becomes available to
the general public other than through a breach by the receiving party; (ii) is already
known to the receiving party before disclosure by the disclosing party; (iii) is
developed through the independent efforts of the receiving party; (iv) the receiving
party rightfully receives from a third party without restriction as to confidentiality
or use; or (v) is requested pursuant to a subpoena; provided, that the party responding
to such subpoena gives the other party reasonable notice and opportunity to intervene
to quash such subpoena.
10.2 Privacy of Consumer Financial Information
Notwithstanding anything in this Agreement to the contrary, if it is necessary for
Affiliate to disclose any End User Data to SMX for any reason, SMX agrees that at
no time shall SMX use or disclose any such End User Data that SMX may obtain in
connection with this Agreement, except as required by law; provided that nothing
herein shall require Affiliate to disclose End User Data to SMX.
11. TERM OF AGREEMENT AND TERMINATION
If Affiliate is dissatisfied with Affiliate account in the SMX Affiliate Program
or with any of the terms and conditions contained herein, Affiliate’s sole
and exclusive remedy is to terminate Affiliate account. Affiliate may cancel participation
in the SMX Affiliate Program at any time by sending notice in accordance with section
12.7.
11.1 Term
The term of this Agreement shall begin on the date the Affiliate applies for an
account and shall continue until terminated by any of the actions enumerated in
section 11.2.
11.2 Termination
This Agreement will terminate in the event of any of the following:
(a) On the tenth (10th) day after a material breach, provided one party gives the
other written notice of a material breach by the other of this Agreement and a request
for a cure, unless the breach is cured before that day;
(b) Immediately once notice of termination by either party is received by the other
party in accordance with section 12.7.
11.3 Effect of Termination
Upon termination of this Agreement, all licenses granted by Affiliate hereunder
shall automatically terminate.
11.4 Survival
Sections 5 (to the extent the payment obligations accrue prior to termination),
7, 9, 10, 11.3 and 12 shall survive any expiration or termination of this Agreement.
11.5 Suspension
SMX reserves the right, at its sole discretion to suspend the Affiliate if it suspects
a material breach of section 3.2. If SMX takes action to suspend, SMX may do so
immediately, but SMX is not relieved of its obligation to notify the Affiliate per
section 11.2(a).
12. General
12.1 Choice of Law
The Parties agree that this Agreement shall be governed by Indian Law.
12.2 Assignment
Affiliate may not assign all or any portion of this Agreement without the prior
written consent of SMX, which consent may be withheld at SMX’s sole discretion.
12.3 Relationship of the Parties
No partnership, joint venture, employment, agency, franchise, or other form of agreement
or relationship is intended by this Agreement. The parties shall be independent
contractors for all purposes in connection with this Agreement.
12.4 Entire Agreement
The parties agree that this Agreement constitutes the entire agreement between the
parties as of the date hereof with respect to the subject matter hereof and supersedes
all prior and contemporaneous communications, whether oral or written. The parties
agree that this Agreement may be modified or amended from time to time hereafter
by SMX as it deems necessary and Affiliate agrees (in consideration for SMX agreeing
to continue doing business with Affiliate) to be bound by such amendments, however,
no such modification or amendment shall act to increase any financial obligation
which Affiliate may otherwise have to SMX pursuant to this Agreement.
12.5 Press Releases
Neither party shall issue any press release or announcement relating to the relationship
contemplated by this Agreement without the prior written consent of the other party.
12.6 Counterparts
This Agreement may be executed in one or more counterparts, each of which shall
be deemed an original, but all of which taken together shall constitute one and
the same instrument.
12.7 Notices
All notices, requests, consents, and other communications under this Agreement from
Affiliate shall be in writing and shall be deemed delivered (i) two business days
after being sent by registered or certified mail, return receipt requested, postage
prepaid or (ii) one business day after being sent via a reputable nationwide overnight
courier service guaranteeing next business day delivery. If from SMX to Affiliate,
immediately upon electronic mail to the primary contact email address is deemed
an acceptable means of notification. In each case to the intended recipient as set
forth below:
If to Affiliate by electronic mail to the primary contact e-mail address,
If to Social Media India Ltd., Laxmi Cyber City, 3rd Floor, 'B' Block, Kondapur,
Hyderabad - 500 084, India, Attention: Via electronic mail using the form available
at http://web.smxchange.com/contactus.aspx or at such other address or addresses
as may have been furnished in writing by SMX to the other Party in the manner set
forth in this section as deemed appropriate.
12.8 Section Headings
Section headings are for descriptive purposes only and shall not be used to interpret
the meaning of this Agreement.
12.9 Attorneys’ Fees
If either party fails to pay any amounts due under this Agreement or otherwise breaches
this Agreement and the non-breaching party retains an attorney to collect such amounts
or remedy such breach, then the breaching party shall be obligated to pay any amounts
due herein including said non-breaching reasonable attorneys’ fees incurred
in collecting such amounts and court costs.
12.10 Non-Waiver
No delay or omission of either party in exercising any right accruing upon any default
of the other party shall impair any such right or be construed to be a waiver thereof,
and every such right may be exercised at any time during the continuance of such
default. A waiver by either of the parties of a breach or a default under any of
the terms and conditions of this Agreement by the other party shall not be construed
to be a waiver thereof. A waiver by either of the parties of a breach or a default
under any of the terms and conditions of this Agreement by the other party shall
not be construed to be a waiver of any subsequent breach or default of any other
term or condition of this Agreement. No remedy provided in this Agreement.
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