Get Smart Products Affiliate Program Agreement
FOREWORD
Our affiliates are important to us and We do our best to treat
you with the fairness and respect you deserve. Weask the same
consideration of you and have written the following affiliate
agreement with you in mind, as well as to protect our company's
good name.
If you have any questions, please contact me directly by email
steve@pfile.com or phone 914-762-3500.
Best regards,
Steve Weisbart
President/Owner
Get Smart Products - pfile.com
AFFILIATE AGREEMENT
PLEASE READ THE ENTIRE AGREEMENT.
YOU MAY PRINT THIS PAGE FOR YOUR RECORDS.
THIS IS A LEGAL AGREEMENT BETWEEN YOU AND SANDS POINT
INDUSTRIES, INC. (DBA GET SMART PRODUCTS, PFILE.COM)
BY SUBMITTING THE ONLINE APPLICATION YOU ARE AGREEING THAT YOU
HAVE READ AND UNDERSTAND THE TERMS AND CONDITIONS OF THIS
AGREEMENT AND THAT YOU AGREE TO BE LEGALLY RESPONSIBLE FOR EACH
AND EVERY TERM AND CONDITION.
1. Overview
This Agreement contains the complete terms and conditions that
apply to you becoming an affiliate in Get Smart Product's
Affiliate Program. The purpose of this Agreement is to allow
HTML linking between your web site and the Get Smart Product
web site. Please note that throughout this Agreement, "we,"
"us," and "our" refer to Get Smart Products, and "you," "your,"
and "yours" refer to the affiliate.
2. Affiliate Obligations
2.1. To begin the enrollment process, you will complete and
submit the online application at the ShareASale.com server. The
fact that we auto-approve applications does not imply that we
may not re-evaluate your application at a later time. We may
reject your application at our sole discretion. We may cancel
your application if we determine that your site is unsuitable
for our Program, including if it:
2.1.1. Promotes sexually explicit materials
2.1.2. Promotes violence
2.1.3. Promotes discrimination based on race, sex, religion,
nationality, disability, sexual orientation, or age
2.1.4. Promotes illegal activities
2.1.5. Incorporates any materials which infringe or assist
others to infringe on any copyright, trademark or other
intellectual property rights or to violate the law
2.1.6. Includes "Get Smart Products", "pfile.com" or variations
or misspellings thereof in its domain name
2.1.7. Is otherwise in any way unlawful, harmful, threatening,
defamatory, obscene, harassing, or racially, ethnically or
otherwise objectionable to us in our sole discretion.
2.1.8. Contains software downloads that potentially enable
diversions of commission from other affiliates in our program.
2.1.9. You may not create or design your website or any other
website that you operate, explicitly or implied in a manner
which resembles our website nor design your website in a manner
which leads customers to believe you are Get Smart Products or
any other affiliated business.
2.2. As a member of Get Smart Product's Affiliate Program, you
will have access to Affiliate Account Manager. Here you will be
able to review our Program’s details and previously-published
affiliate newsletters, download HTML code (that provides for
links to web pages within the Get Smart Product web site) and
banner creatives, browse and get tracking codes for our coupons
and deals. In order for us to accurately keep track of all
guest visits from your site to ours, you must use the HTML code
that we provide for each banner, text link, or other affiliate
link we provide you with.
2.3. Get Smart Products reserves the right, at any time, to
review your placement and approve the use of Your Links and
require that you change the placement or use to comply with the
guidelines provided to you.
2.4. The maintenance and the updating of your site will be your
responsibility. We may monitor your site as we feel necessary
to make sure that it is up-to-date and to notify you of any
changes that we feel should enhance your performance.
2.5. It is entirely your responsibility to follow all
applicable intellectual property and other laws that pertain to
your site. You must have express permission to use any person's
copyrighted material, whether it be a writing, an image, or any
other copyrightable work. We will not be responsible (and you
will be solely responsible) if you use another person's
copyrighted material or other intellectual property in
violation of the law or any third party rights.
3. Get Smart Products Rights and Obligations
3.1. We have the right to monitor your site at any time to
determine if you are following the terms and conditions of this
Agreement. We may notify you of any changes to your site that
we feel should be made, or to make sure that your links to our
web site are appropriate and to notify further you of any
changes that we feel should be made. If you do not make the
changes to your site that we feel are necessary, we reserve the
right to terminate your participation in the Get Smart Products
Affiliate Program.
3.2. Get Smart Products reserves the right to terminate this
Agreement and your participation in the Get Smart Products
Affiliate Program immediately and without notice to you should
you commit fraud in your use of the Get Smart Products
Affiliate Program or should you abuse this program in any way.
If such fraud or abuse is detected, Get Smart Products shall
not be liable to you for any commissions for such fraudulent
sales.
3.3. This Agreement will begin upon our acceptance of your
Affiliate application, and will continue unless terminated
hereunder.
4. Termination
Either you or we may end this Agreement AT ANY TIME, with or
without cause, by giving the other party written notice.
Written notice can be in the form of mail, email or fax. In
addition, this Agreement will terminate immediately upon any
breach of this Agreement by you.
5. Modification
We may modify any of the terms and conditions in this Agreement
at any time at our sole discretion. In such event, you will be
notified by email. Modifications may include, but are not
limited to, changes in the payment procedures and Get Smart
Product's Affiliate Program rules. If any modification is
unacceptable to you, your only option is to end this Agreement.
Your continued participation in Get Smart Product's Affiliate
Program following the posting of the change notice or new
Agreement on our site will indicate your agreement to the
changes.
6. Payment
Get Smart Products uses a third party to handle all of the
tracking and payment. The third party is the ShareASale.com
affiliate network. Kindly review the network’s payment terms
and conditions.
7. Access to Affiliate Account Interface
You will create a password so that you may enter ShareASale’s
secure affiliate account interface. From their site you will be
able to receive your reports that will describe our calculation
of the commissions due to you.
8. Promotion Restrictions
8.1. You are free to promote your own web sites, but naturally
any promotion that mentions Get Smart Products could be
perceived by the public or the press as a joint effort. You
should know that certain forms of advertising are always
prohibited by Get Smart Products. For example, advertising
commonly referred to as "spamming" is unacceptable to us and
could cause damage to our name. Other generally prohibited
forms of advertising include the use of unsolicited commercial
email (UCE), postings to non-commercial newsgroups and
cross-posting to multiple newsgroups at once. In addition, you
may not advertise in any way that effectively conceals or
misrepresents your identity, your domain name, or your return
email address. You may use mailings to customers to promote Get
Smart Products so long as the recipient is already a customer
or subscriber of your services or web site, and recipients have
the option to remove themselves from future mailings. Also, you
may post to newsgroups to promote Get Smart Products so long as
the news group specifically welcomes commercial messages. At
all times, you must clearly represent yourself and your web
sites as independent from Get Smart Products. If it comes to
our attention that you are spamming, we will consider that
cause for immediate termination of this Agreement and your
participation in the Get Smart Products Affiliate Program. Any
pending balances owed to you will not be paid if your account
is terminated due to such unacceptable advertising or
solicitation.
8.2. Affiliates that among other keywords or exclusively bid in
their Pay-Per-Click campaigns on keywords such as Get Smart
Products, www.pfile, www.pfile.com, and/or any misspellings or
similar alterations of these – be it separately or in
combination with other keywords – and do not direct the traffic
from such campaigns to their own website prior to re-directing
it to ours, will be considered trademark violators, and will be
banned from Get Smart Products Affiliate Program. We will do
everything possible to contact the affiliate prior to the ban.
However, we reserve the right to expel any trademark violator
from our affiliate program without prior notice, and on the
first occurrence of such PPC bidding behavior.
8.3. Affiliates are not prohibited from keying in prospect’s
information into the lead form as long as the prospects’
information is real and true, and these are valid leads (i.e.
sincerely interested in Get Smart Product's service).
8.4. Affiliate shall not transmit any so-called
“interstitials,” “Parasiteware™,” “Parasitic Marketing,”
“Shopping Assistance Application,” “Toolbar Installations
and/or Add-ons,” “Shopping Wallets” or “deceptive pop-ups
and/or pop-unders” to consumers from the time the consumer
clicks on a qualifying link until such time as the consumer has
fully exited Get Smart Product's site (i.e., no page from our
site or any Get Smart Product's content or branding is visible
on the end-user’s screen). As used herein a. “Parasiteware™”
and “Parasitic Marketing” shall mean an application that (a)
through accidental or direct intent causes the overwriting of
affiliate and non affiliate commission tracking cookies through
any other means than a customer initiated click on a qualifying
link on a web page or email; (b) intercepts searches to
redirect traffic through an installed software, thereby
causing, pop ups, commission tracking cookies to be put in
place or other commission tracking cookies to be overwritten
where a user would under normal circumstances have arrived at
the same destination through the results given by the search
(search engines being, but not limited to, Google, MSN, Yahoo,
Overture, AltaVista, Hotbot and similar search or directory
engines); (c) set commission tracking cookies through loading
of Get Smart Product's site in IFrames, hidden links and
automatic pop ups that open Get Smart Product's site; (d)
targets text on web sites, other than those web sites 100%
owned by the application owner, for the purpose of contextual
marketing; (e) removes, replaces or blocks the visibility of
Affiliate banners with any other banners, other than those that
are on web sites 100% owned by the owner of the application.
9. Grant of Licenses
9.1. We grant to you a non-exclusive, non-transferable,
revocable right to (i) access our site through HTML links
solely in accordance with the terms of this Agreement and (ii)
solely in connection with such links, to use our logos, trade
names, trademarks, and similar identifying material
(collectively, the "Licensed Materials") that we provide to you
or authorize for such purpose. You are only entitled to use the
Licensed Materials to the extent that you are a member in good
standing of Get Smart Product's Affiliate Program. You agree
that all uses of the Licensed Materials will be on behalf of
Get Smart Products and the good will associated therewith will
inure to the sole benefit of Get Smart Products.
9.2. Each party agrees not to use the other's proprietary
materials in any manner that is disparaging, misleading,
obscene or that otherwise portrays the party in a negative
light. Each party reserves all of its respective rights in the
proprietary materials covered by this license. Other than the
license granted in this Agreement, each party retains all
right, title, and interest to its respective rights and no
right, title, or interest is transferred to the other.
10. Disclaimer
GET SMART PRODUCTS MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS
OR WARRANTIES REGARDING PFILE.COM SERVICE AND WEB SITE OR THE
PRODUCTS OR SERVICES PROVIDED THEREIN, ANY IMPLIED WARRANTIES
OF GET SMART PRODUCT'S ABILITY, FITNESS FOR A PARTICULAR
PURPOSE, AND NON-INFRINGEMENT ARE EXPRESSLY DISCLAIMED AND
EXCLUDED. IN ADDITION, WE MAKE NO REPRESENTATION THAT THE
OPERATION OF OUR SITE WILL BE UNINTERRUPTED OR ERROR FREE, AND
WE WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS
OR ERRORS.
11. Representations and Warranties
You represent and warrant that:
11.1. This Agreement has been duly and validly executed and
delivered by you and constitutes your legal, valid, and binding
obligation, enforceable against you in accordance with its
terms;
11.2. You have the full right, power, and authority to enter
into and be bound by the terms and conditions of this Agreement
and to perform your obligations under this Agreement, without
the approval or consent of any other party;
11.3. You have sufficient right, title, and interest in and to
the rights granted to us in this Agreement.
12. Limitations of Liability
WE WILL NOT BE LIABLE TO YOU WITH RESPECT TO ANY SUBJECT MATTER
OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT
LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT,
INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES
(INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR GOODWILL OR
ANTICIPATED PROFITS OR LOST BUSINESS), EVEN IF WE HAVE BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER,
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS
AGREEMENT, IN NO EVENT SHALL GET SMART PRODUCT'S CUMULATIVE
LIABILITY TO YOU ARISING OUT OF OR RELATED TO THIS AGREEMENT,
WHETHER BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT
OR OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL COMMISSION
FEES PAID TO YOU UNDER THIS AGREEMENT.
13. Indemnification
You hereby agree to indemnify and hold harmless Get Smart
Products, and its subsidiaries and affiliates, and their
directors, officers, employees, agents, shareholders, partners,
members, and other owners, against any and all claims, actions,
demands, liabilities, losses, damages, judgments, settlements,
costs, and expenses (including reasonable attorneys' fees) (any
or all of the foregoing hereinafter referred to as "Losses")
insofar as such Losses (or actions in respect thereof) arise
out of or are based on (i) any claim that our use of the
affiliate trademarks infringes on any trademark, trade name,
service mark, copyright, license, intellectual property, or
other proprietary right of any third party, (ii) any
misrepresentation of a representation or warranty or breach of
a covenant and agreement made by you herein, or (iii) any claim
related to your site, including, without limitation, content
therein not attributable to us.
14. Confidentiality
All confidential information, including, but not limited to,
any business, technical, financial, and customer information,
disclosed by one party to the other during negotiation or the
effective term of this Agreement which is marked
"Confidential," will remain the sole property of the disclosing
party, and each party will keep in confidence and not use or
disclose such proprietary information of the other party
without express written permission of the disclosing party.
15. Miscellaneous
15.1. You agree that you are an independent contractor, and
nothing in this Agreement will create any partnership, joint
venture, agency, franchise, sales representative, or employment
relationship between you and Get Smart Products. You will have
no authority to make or accept any offers or representations on
our behalf. You will not make any statement, whether on Your
Site or any other of Your Site or otherwise, that reasonably
would contradict anything in this Section.
15.2. Neither party may assign its rights or obligations under
this Agreement to any party, except to a party who obtains all
or substantially all of the business or assets of a third
party.
15.3. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of New York without
regard to the conflicts of laws and principles thereof.
15.4. You may not amend or waive any provision of this
Agreement unless in writing and signed by both parties.
15.5. This Agreement represents the entire agreement between us
and you, and shall supersede all prior agreements and
communications of the parties, oral or written.
15.6. The headings and titles contained in this Agreement are
included for convenience only, and shall not limit or otherwise
affect the terms of this Agreement.
15.7. If any provision of this Agreement is held to be invalid
or unenforceable, that provision shall be eliminated or limited
to the minimum extent necessary such that the intent of the
parties is effectuated, and the remainder of this agreement
shall have full force and effect.
