This Agreement describes the entire terms and conditions which govern your participation in the Savicom Affiliate Program, and the following definitions apply:
i. "Affiliate" and "Your" refers to you the applicant;
ii. "We" and "Our" refers to MindShare Design, Inc., ("DBA Savicom")
iii. "Referring Web Site" refers to the web site from which Affiliate optionally links to the Savicom web site
iv. "Service" refers collectively to Savicom's products and services
v. "Savicom's Web Site" refers to web pages located on Savicom's company web site at http://www.savicom.net
vi. "Visitor" refers to a visitor to Savicom's Web Site
vii. "Referral" refers to a Visitor referred to Savicom's Web Site by Referring Web Site who is tracked according to "Service Interruption and Tracking" below
1. Referral Web Site: Affiliate may provide a link from a Referring Web Site to Savicom's Web Site and earn commissions as outlined below. Affiliate may remove said link from a Referring Web Site and re-link to Savicom at any time without prior approval. Affiliate may not display the Savicom name, image, or link in any way that may defame the Savicom name or brand.
Affiliate may not link to Savicom from a Referring Web Site which promotes spam as described in this Agreement, sexually explicit material, violence, illegal activities, or discrimination based on race, sex, religion, national origin, physical disability, sexual orientation, or age.
2. Referral URL: Affiliate may advertise Savicom using Affiliate's assigned URL rather than, or in addition to, placing Savicom's link on a Referring Web Site. Affiliate is solely responsible for ensuring that Affiliate's assigned URL is used in Affiliate's advertising, and Affiliate agrees that Savicom is unable track registrations or calculate commissions otherwise.
3. Promotional Techniques: Affiliate is free to promote Savicom using the resources provided in Savicom's Affiliate Control Panel. Examples of the many acceptable ways to promote Savicom are through banners, text links, endorsements, and letters of recommendation to newsletters subscribers or your client base.
4. Email Marketing Requirements: Promoting Savicom via unsolicited email is strictly prohibited, and Affiliate agrees to not reference Savicom in any way, shape, or form, in any email that Affiliate sends in which the recipient has not specifically asked to receive it.
If the event of a spam complaint in response to an email sent by Affiliate, Affiliate must provide to Savicom the opt-in details (including IP address, source and timestamp) for the user making the complaint within 48 hours. If Affiliate does not provide the requested information, Affiliate will be deemed in violation of this policy and this agreement will be terminated.
In the case of email promotions which are conducted by a third-party on Affiliates behalf, Affiliate assumes full responsibility and is advised to perform due diligence to ensure that the mailing list is in fact 100% opt-in. Third-party mailings are treated as if Affiliate had sent the email themselves.
Any violation of policy will result in the forfeiture of your entire commission for all programs and your account being terminated, and Affiliate being held liable for any and all damages.
5. Qualifying Referrals: Savicom referral customers originating from Affiliate's Referring Web Site or Referral URL qualify to earn Affiliate commissions as described below. Savicom reserves the right to reject or terminate customers per its normal authorization and acceptable use policies. Affiliate may not receive commissions on Savicom services purchased for Affiliate's use or for use by parties related to Affiliate, including subsidiaries or companies having substantially similar ownership or management. This agreement will be terminated and Savicom will be entitled to a refund of all commissions paid for services used by Affiliate or related parties.
6. Commission Amounts: Commissions are paid on Savicom services as follows:
Savicom PRO and PRO Lite: Savicom pays Affiliates a commission of 20% of all sales for each customer referred to us for a 12-month period beginning with their first purchase, less any discounts, returns or credits issued to the customer.
Savicom CampaignPlus and Savicom Publisher: Savicom pays Affiliates a commission of $300.00 for every new Savicom CampaignPlus and Savicom Publisher client referred to us who remains a customer for at least 3 full months.
Savicom DASH products: Savicom pays Affiliates a commission of $1000.00 for every DASH server activated by new customer Referrals within 6 months of referral date, provided the server remains activated and paid for at least 3 months.
7. Commission Payments: Commissions are paid approximately 15 days after the end of each month, for commissions earned in the prior month. Commissions less than $100 will be held until the month in which total accrued commissions reach $100. An amount equal to the applicable Referral Fees previously paid to you with respect to returned products will be deducted from future payments to you, or if there are no future payments, you will be billed for such amount. Commission payments are made in US dollars via PayPal, or by check drawn on a US bank and mailed by U.S. postal mail.
8. Tax Reporting: By law, if commission payments to Affiliate exceed $600 in a calendar year and Affiliate is a resident of the United States of America, Affiliate will be required to provide Savicom with a signed W-9 Form for tax reporting purposes before Savicom can make additional commission payments to Affiliate during the same calendar year.
9. Savicom Policies: Savicom is not responsible for any representations made by Affiliate which contradict Savicom policies.
10. Service Interruption and Tracking: Savicom will make every effort to ensure that its web site is operational, and to track Affiliate's referred users. However, certain unavoidable technical difficulties may occasionally cause temporary service and tracking interruptions. Affiliate agrees that Savicom is not liable in any way for such interruptions.
Savicom will provide Affiliates with unique URLs to use on Referring Web Site in order to permit web Visitors to access our web site via a link on the Referring Web Site. Savicom shall track Visitors referred by Referring Web Site ("Referrals") through such URL by loading a token into each Referral's browser by means of a cookie (a "Token"). Savicom will be unable (and will have no obligation) to track Referrals who refuse the Token, whose browsers do not support cookies, whose Token is disrupted (such as if the cookie is edited or deleted), or who visit Savicom's Web Site using a browser that does not use the cookie containing the Token. Savicom will determine affiliate association at the time of first contact with a Visitor, and if no Token is found, no affiliate credit will be given for any purchases made by Visitor, regardless if Visitor subsequently receives a Token. Only one Affiliate may be credited for a given Referral. If a Referral's Token changes, subsequent Affiliates will not receive affiliate credit. You understand and agree that each cookie and token will automatically expire one hundred days after being loaded into the applicable Referral's browser and, consequently (i.) that no sales made following such expiration will be tracked to you (and we will have no obligation to track such sales), and (ii.) that you will not be entitled to receive any commissions for sales made following such expiration.
11. References/Testimonials: Affiliate agrees to cooperate with Savicom in the development of press releases, testimonies, and other such marketing materials. Affiliate grants Savicom unlimited rights to reference Affiliate in any marketing materials, without further compensation.
12. Title: Title, ownership, and intellectual property rights in the Service shall remain with Savicom. The Service is protected by patents and copyright laws and treaties. Title and related rights in the content accessed through the Service is the property of the content owner and may be protected by applicable law. This agreement gives you no rights to such content.
13. Copyrights: Affiliate is responsible for ensuring that all advertising obeys all applicable copyright and trademark laws. Savicom is not responsible for Affiliate's misuse of any copyrighted material.
14. Use of Savicom Trademarks: Savicom grants Affiliate a non-exclusive license to use the Savicom's name and logo (collectively, the "Marks") in accordance with the terms set forth in this Agreement. We may terminate the foregoing license if, in our sole discretion, your use of the Marks does not conform to our standards. You agree that title to and ownership of the Marks shall remain with us at all times. You shall use the Marks exactly in the form provided and in conformance with any trademark usage policies that we may establish. You may not form any combination marks with the Marks. You shall not take any action inconsistent with our ownership of or goodwill associated with the Marks. You agree that any benefits and goodwill arising from your use of the Marks shall inure solely to our benefit.
15. Limitation of Damages: Savicom shall have no liability for any indirect, incidental or consequential damages, or any loss of revenue arising under or with respect to this agreement or the Savicom Affiliate program, even if Savicom has been advised of the possibility of such damages. Furthermore, Savicom's aggregate liability arising under or with respect to this Agreement shall in no event exceed the total commissions owed to Affiliate.
16. Relationship of the Parties: Affiliate is an independent contractor, and nothing in this Agreement shall create any form of partnership, joint venture, franchise, agency, or employment relationship between the parties. Affiliate will not be treated as an employee with respect to the Internal Revenue Code, Social Security Act, Federal Unemployment Acts, or any other federal, state, or local statute, ordinance, rule, or regulation.
17. Confidentiality: Except as otherwise provided in this Agreement or with the consent of the other party hereto, each of the parties hereto agrees that all information including, without limitation, the terms of this Agreement, business and financial information, customer and vendor lists, and pricing and sales information, concerning us or you, respectively, or any of our Affiliates provided by or on behalf of any of them shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by such party for its own business purposes or for any other purpose except and solely to the extent that any such information is generally known or available to the public through a source or sources other than such party hereto or its affiliates.
Notwithstanding the foregoing, each party is hereby authorized to deliver a copy of any such information (a) to any person pursuant to a subpoena issued by any court or administrative agency, (b) to its accountants, attorneys, or other agents on a confidential basis, and (c) otherwise as required by applicable law, rule, regulation, or legal process including, without limitation, the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder, and the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder.
18. Miscellaneous: Affiliate shall not assign this Agreement, by operation of law or otherwise, without the prior written consent of Savicom. Subject to the foregoing, this Agreement is binding upon, insures to the benefit of, and is enforceable by the parties and their respective successors.
19. Term and Termination: This Agreement will remain in effect for as long as Savicom makes the Service available or until the Agreement is terminated by either party. Savicom and Affiliate have the right to terminate this Agreement at any time, with or without cause, by notifying the other party in writing. Upon termination, all licenses hereunder shall terminate and you shall cease any and all uses of Savicom Marks. The final commission payment to Affiliate may be withheld for up to 60 days in order to ensure correct commission calculation and payment.
20. Agreement Modification: Savicom reserves the right to change any of these terms and conditions, at any time and at its sole discretion, by posting a new Agreement on Savicom's Web Site. Affiliate is solely responsible for monitoring Affiliate agreement for updates, and for compliance with any updated terms and conditions of agreement.
If any modification is unacceptable to Affiliate, Affiliate's only recourse is to terminate this Agreement. Affiliate's continued participation in the Affiliate program following our posting of a change or updated agreement will constitute binding acceptance of the change(s).
21. Governing Law: This Agreement shall be governed by the laws of the State of California, and the parties agree that any claim, dispute or other difference shall be exclusively resolved by binding arbitration pursuant to the Commercial Arbitration Rules of the American Arbitration Association with arbitration to occur at a location selected by Savicom.
22. Severability: If any provision herein is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The terms of Sections 10, 11, 12 and 13 shall survive the termination of this Agreement for any reason.
23. Notice: Any notices hereunder shall be given if to us at Savicom, 475 14th Street, Suite 250, Oakland, CA 94612, Attn: Affiliate Program Coordinator, with a copy Attn: Legal Dept at the same address, and if to you at the address specified in your application, or at such other address as each party shall specify in writing from time-to-time. Notice shall be deemed given: upon personal delivery; if sent by fax or e-mail, upon confirmation of receipt; or if sent by certified or registered mail, postage prepaid, 5 days after the date of mailing.
24. Entire Agreement; Waiver: This Agreement sets forth the entire and final understanding and agreement of the parties, and supersedes any and all oral or written agreements or understandings between the parties, as to the subject matter hereof. Except as set forth in "Agreement Modification" above, this Agreement may be changed only by a written amendment signed by both parties. The waiver of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach.