LAST REVISION: May 2, 2005
PLEASE READ THIS SPAM ARREST AFFILIATE REFERRAL AGREEMENT CAREFULLY. BY COMPLETING THE REGISTRATION PROCESS AND CLICKING THE "I ACCEPT" BUTTON, YOU AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT.
This Affiliate Referral Agreement (the "Agreement") between you ("AFFILIATE") and Spam Arrest, LLC ("SPAM ARREST") governs the terms and conditions to SPAM ARREST's affiliate program (the "Affiliate Program"). This Agreement includes, and incorporates by this reference, the policies and guidelines referenced below. SPAM ARREST reserves the right to change or revise the terms and conditions of this Agreement at any time by posting any changes or a revised Agreement on this Web site <http://www.spamarrest.com> (the "Spam Arrest Site"). SPAM ARREST will alert you that changes or revisions have been made by indicating on the top of this Agreement the date it was last revised. The changed or revised Agreement will be effective immediately after it is posted on the Spam Arrest Site. Your participation in the Affiliate Program following the posting of any such changes or of a revised Agreement will constitute your acceptance of any such changes or revisions. SPAM ARREST encourages you to review this Agreement whenever you visit the Spam Arrest Site to make sure that you understand the terms of the services provided to you. This Agreement does not alter in any way the terms or conditions of any other written agreement you may have with SPAM ARREST for other products or services. If you do not agree to this Agreement (including any referenced policies or guidelines), please immediately terminate your participation in the Affiliate Program. If you would like to print this Agreement, please click the print button on your browser toolbar. Together, SPAM ARREST and AFFILIATE are herein referred to as the "Parties" and each individually as a "Party".
WHEREAS, SPAM ARREST develops and markets technology and software for the purpose of blocking unsolicited electronic mail (e-mail) messages; WHEREAS, AFFILIATE desires to promote such technology and software via AFFILIATE'S Internet world wide web site and e-mail marketing materials in exchange for a commission; and
WHEREAS, SPAM ARREST would like to compensate AFFILIATE pursuant to the terms and conditions of this Agreement.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree to the following:
As used this Agreement, the capitalized terms set forth below shall have the meanings so ascribed to them in this Section 2:
1.1. "Agreement" means this Affiliate Referral Agreement.
1.2. "Commission" means that percentage identified on http://www.spamarrest.com/affiliates of license fees or other revenue actually received (i.e., not including a percentage of uncollected receives or unrealized income) by SPAM ARREST during the first eighteen (18) months following the Customer's purchase of the Product, additional bank processing and merchant fees, and costs associated with chargebacks, fraudulent transactions, penalties, credits, and taxes.
1.3. "Customer" means any person or entity who purchases or licenses the Product from SPAM ARREST via the Target URL.
1.4. "Effective Date" means the date AFFILIATE clicks "I Accept" while registering for the Affiliate Program.
1.5. "Links" mean hyperlink devices from the Referral Site to the Target URL, including banner advertisements, button links, text links, icons, or other devices identifying SPAM ARREST and/or the Product.
1.6. "Product" means the software and related technology for the purpose of blocking unsolicited/unwanted electronic mail messages developed and marketed by SPAM ARREST, and available at the Spam Arrest Site.
1.7. "Referral Site" means that certain Internet world wide web site controlled by AFFILIATE and identified by AFFILIATE when completing the registration process. For purposes of this Agreement, an e-mail sent by AFFILIATE to its Users that contains banner advertisements, button links, text links, icons, or other devices identifying SPAM ARREST and/or the Product pursuant to this Agreement is a Referral Site.
1.8. "Spam Arrest Site" means that certain Internet world wide web site for SPAM ARREST, the home page of which is accessible on the Internet at the uniform resource locator <http:/www.SpamArrest.com>.
1.9. "Spam Arrest Marks" means trademarks or service marks identifying SPAM ARREST, the Product, or the source or quality of the Product; or the use of the words "Spam Arrest" or the SPAM ARREST logo on the Internet or otherwise; or any name, word, symbol, device, or combination thereof confusingly similar to the foregoing.
1.10. "Target URL" means the uniform resource locator provided by SPAM ARREST to AFFILIATE, in connection with the Links at which AFFILIATE will direct potential Customers for the purpose of learning about or subscribing to the Product.
1.11. "Users" mean those Internet end users who access the Referral Site and may be potential Customers.
1.12. "Term" means one (1) year beginning on the Effective Date.
2.1. Authorized Affiliate. In strict accordance with this Agreement, SPAM ARREST authorizes AFFILIATE to link to the Spam Arrest Site from a Referral Site, and specifically the Target URL, for the purpose of referring Customers to SPAM ARREST in exchange for a Commission as provided herein.
2.2. Links. SPAM ARREST will make Links available to AFFILIATE which AFFILIATE may display on the Referral Site only and cause to be available to Users, provided AFFILIATE abides by the terms and conditions of this Agreement. AFFILIATE may also create its own Links, provided, however, that SPAM ARREST approves of the same before AFFILIATE propagates such Link on the Referral Site. AFFILIATE shall not, and shall not permit any third party to, modify or alter any Link without SPAM ARREST's written consent. AFFILIATE shall cause each Link to direct Users by way of hyperlink to the Target URL. AFFILIATE will not be entitled to any Commission relating to license fees generated by Customers hyperlinked to a URL other than the Target URL. SPAM ARREST grants AFFILIATE the right and license to display the Links on the Referral Site. Notwithstanding the foregoing, SPAM ARREST shall have the right to require AFFILIATE to remove any Link at any time for any reason or no reason. By way of example, and not limitation, in the event the Referral Site contains offensive content, SPAM ARREST may demand, and AFFILIATE shall ensure, that Links to the Target URL or Spam Arrest Site from the Referral Site be removed immediately.
2.3. Prohibited Marketing. AFFILIATE may not under any circumstance send unsolicited bulk email or post USENET advertisements regarding the SPAM ARREST products.
2.4. Spam Arrest Marks. AFFILIATE may display the Spam Arrest Marks on the Referral Site to the extent such Spam Arrest Marks are embodied in the Links provided or approved by SPAM ARREST. AFFILIATE shall not use any Spam Arrest Marks in any other way or in any other medium.
3. ORDER FULFILLMENT AND COMMISSION
3.2. Order Processing and Fulfillment. SPAM ARREST will undertake good faith efforts to process orders placed by Customers for the Product. SPAM ARREST reserves the right, in its sole discretion, to reject orders for the Product, including orders from Customers residing or attempting to sign-up in particular geographic locations, or orders that do not comply with certain requirements which SPAM ARREST may establish at any time. As between SPAM ARREST and AFFILIATE, all aspects of order processing and fulfillment, including order entry, customer service, shipping, cancellations, returns and payment processing will be handled by SPAM ARREST. SPAM ARREST will track the amount of sales generated by Customers directed to the Target URL by AFFILIATE, and will make this information available to AFFILIATE through reasonable means (including electronically) in SPAM ARREST's discretion.
3.3. Affiliate's Commissions. AFFILIATE shall be entitled to a Commission for each purchase of a subscription to the Product by a Customer which is introduced to the Product by AFFILIATE directing the Customer to the Target URL.
3.4. Payment and Reporting. SPAM ARREST shall remit Commissions to AFFILIATE approximately each calendar month (as such payments are received by SPAM ARREST, and not before). SPAM ARREST may also deliver to AFFILIATE contemporaneous with such payment a report stating sales of the Product to Customers during such reporting period. If located outside of the United States, AFFILIATE will only receive payment when earned commission exceeds one hundred dollars ($100).
4. REPRESENTATIONS AND WARRANTIES
4.1. Spam Arrest Representations and Warranties. SPAM ARREST represents, warrants, and guarantees that it has the right to enter into this Agreement and grant the rights to AFFILIATE provided herein.
4.2. Affiliate's Representations and Warranties. AFFILIATE represents, warrants, and guarantees that at all times during the Term, (ii) AFFILIATE will operate the Referral Site in accordance with all applicable laws, rules, and regulations, including (a) rules relating to privacy and the collection of personally identifiable information, and (b) laws regulating unsolicited commercial e-mail, including, but not limited to, RCW 19.190.10, et seq., or any comparable state or federal statue, now in existence or hereafter enacted; (iii) the Referral Site will not contain any unlawful, defamatory, obscene, offensive or harassing content; (iv) AFFILIATE will not modify or alter any Links with SPAM ARRESTS approval; and (v) AFFILIATE will not use any Spam Arrest Marks in a manner contrary to any guidelines provided by SPAM ARREST, any way that disparages SPAM ARREST or the Product, or casts any negative light on SPAM ARREST or the Product, or in any way not provided for herein.
5. MISCELLANEOUS TERMS
5.1. Reservation of Rights. Nothing in this Agreement shall be construed to grant AFFILIATE any right, interest in or license to the Product. SPAM ARREST retains all rights in and to the Product. Except as otherwise set forth herein, SPAM ARREST retains all right and interest in the Spam Arrest Marks. The only rights granted to AFFILIATE by SPAM ARREST are the rights expressly granted herein. SPAM ARREST does not grant any implied rights to AFFILIATE.
5.2. Term and Termination. This Agreement shall commence on the Effective Date and remain effective until the end of the Term. SPAM ARREST may terminate the Agreement for any reason at anytime. Upon any termination, AFFILIATE shall immediately cease using any Links and shall remove all Links from the Referral Site. AFFILIATE shall be entitled to any Commissions relating to Customers generated by SPAM ARREST prior to termination of this Agreement. Notwithstanding the foregoing, SPAM ARREST may retain any Commissions due AFFILIATE for reasonably anticipated chargebacks, credits, or other anticipated charges or liability reasonably attributable to AFFILIATE.
5.3. Relationship of the Parties. Notwithstanding the use of the term "Affiliate" or anything to the contrary herein, this Agreement does not create, and will not be interpreted or construed as creating or evidencing, any partnership, franchise, or agency between the Parties or as imposing any partnership, franchise or agency obligation or liability upon either Party. Under no circumstances shall AFFILIATE look to SPAM ARREST as its employer, nor as a partner, agent, or principal. The parties are independent contractors, with the sole relationship between them being that provided for in this Agreement (i.e., AFFILIATE refers business to SPAM ARREST in exchange for a Commission).
5.4. AFFILIATE's Indemnity of SPAM ARREST. AFFILIATE shall defend, indemnify, and hold harmless SPAM ARREST and its members, managers, officers, directors, shareholders, employees, agents, contractors, affiliates and attorneys ("SPAM ARREST Related Parties") from and against any and all claims of third parties, including, but not limited to all loss, liability, claims, demands, damages, cost or expense, causes of action, suits, proceedings, judgments, awards, executions and liens, including reasonable attorneys' fees (which attorneys shall be hired at the sole discretion of SPAM ARREST) and costs (including claims without legal merit or brought in bad faith), relating to this Agreement, including the display of any Links, AFFILATE's marketing or promotion of the Links and/or SPAM ARREST services, and the operation of the Referral Site. By way of example, and not limitation, AFFILIATE shall indemnify SPAM ARREST in the event SPAM ARREST is threatened with a lawsuit or other claim based upon the content of the Referral Site, the transmission or propagation of Links (via e-mail or otherwise), or the alleged act or omission of AFFILIATE. If SPAM ARREST is threatened by claims or suit of a third party, SPAM ARREST may seek written assurances from the AFFILIATE concerning the AFFILIATE's obligation to indemnify SPAM ARREST. Failure to provide such written assurances is a material breach of this Agreement. Failure of AFFILIATE to fully indemnify SPAM ARREST in a timely manner will result in termination of AFFILIATE's Agreement with SPAM ARREST; and such termination shall in no way prejudice SPAM ARREST's right to seek the indemnity by way of litigation or otherwise.
5.5. SPAM ARREST'S DISCLAIMER; LIMITATION OF LIABILITY. SPAM ARREST SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS, RELATING TO THE AGREEMENT, THE LINKS, SPAM ARREST'S SALES OF THE PRODUCT, OR IN ANY OTHER WAY RELATED TO THE PRODUCTS OR SERVICES PROVIDED BY SPAM ARREST, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE. ADDITIONALLY, SPAM ARREST AND SPAM ARREST RELATED PARTIES SHALL NOT BE LIABLE WHATSOEVER FOR ANY LOSSES OR DAMAGES THAT AFFILIATE MAY INCUR AS A RESULT OF A CUSTOMER'S USE OF THE PRODUCT, OR FOR LACK OF FITNESS FOR A PARTICULAR PURPOSE THEREOF. FINALLY, SPAM ARREST SHALL NOT BE LIABLE WHATSOEVER FOR ANY OF AFFILIATE'S LOST PROFITS, EVEN IF SPAM ARREST HAS BEEN ADVISED OF THE POTENTIAL FOR SUCH DAMAGES, AND EVEN IF SPAM ARREST MAY FORESEE SUCH POSSIBLE DAMAGES. AFFILIATE'S SOLE REMEDY FOR SPAM ARREST'S BREACH OF THIS AGREEMENT SHALL BE TO TERMINATE ITS AGREEMENT WITH SPAM ARREST AND COLLECT ANY THEN OUTSTANDING COMMISSIONS OWED.
5.6. Notices. Notices to SPAM ARREST or AFFILIATE shall be delivered by registered or certified official mail of a country, postage prepaid, or by reputable commercial courier service (e.g., U.S. Express Mail or Federal Express) in the manner of quickest delivery (i.e., overnight delivery, if possible), to the respective addresses identified on the first page of this Agreement, however, SPAM ARREST may terminate this Agreement by providing e-mail notice to AFFILIATE. AFFILIATE may change its address by written notice to SPAM ARREST, and SPAM ARREST may change its address by posting a different address at http://www.spamarrest.com/contact.html, in which case notices to SPAM ARREST shall be delivered to that address. Notices delivered by reputable commercial courier service in the manner of quickest delivery shall be deemed delivered three (3) business days following dispatch. Notices mailed by registered or certified official mail of a country shall be deemed delivered seven (7) business days after mailing.
5.7. Governing Law/Forum Selection. This Agreement is governed by the laws of the State of Washington USA, applicable to contracts made and to be performed solely in the State of Washington, without regard to conflict of laws principles. AFFILIATE hereby consents to the exclusive personal jurisdiction of the courts in Seattle, King County, Washington, USA for any and all claims or disputes arising out of, to enforce, construe, or otherwise relating to this Agreement. The exclusive venue for such action shall be the United States District Court for the Western District of Washington in downtown Seattle. If such dispute does not fall within the jurisdiction of the United States federal courts, then the exclusive venue for such action shall be the Superior Court of the state of Washington in Seattle, King County, Washington USA. AFFILIATE waives any right to object to venue or jurisdiction based on inconvenient forum or for any other reason, and AFFILIATE waives any statutory or other right pursuant to the laws of the jurisdiction in which AFFILIATE resides to have a case relating to this Agreement adjudicated or resolved in that jurisdiction.
5.8. Assignment/Delegation. AFFILIATE shall not assign any of its rights, nor delegate any obligations, hereunder. Any purported assignment of rights or delegation of duties by AFFILIATE shall be null and void and of no force or effect. 5.9. No Third Party Beneficiaries. This Agreement is not intended to and shall not be construed to provide any rights, remedies or benefits to or for any person or entity not a Party to this Agreement, including, but not limited to, Customers or Users.
5.10. Severability. If any provision of this Agreement is held invalid, unenforceable or void, the remainder of the Agreement shall not be affected thereby and shall continue in full force and effect.
5.11. Full Integration; Amendments in Writing. This Agreement constitutes the entire agreement between AFFILIATE and SPAM ARREST relating to the matters set forth herein. No prior or contemporaneous written, oral, and electronic representation, negotiation, or agreement form a part of this Agreement, and this Agreement supersedes all prior written, oral, or electronic agreements between AFFILIATE and SPAM ARREST relating to this Agreement. No amendment, modification, or supplement to this Agreement shall be effective unless it is in writing and signed by an authorized representative of SPAM ARREST.
5.12. Counterparts. The Parties may execute this Agreement in two or more counterparts, which shall, in the aggregate, be signed by each party. Each counterpart shall be deemed an original instrument as against any party who has signed it.
I (AFFILIATE) HAVE READ AND UNDERSTAND THE FOREGOING AGREEMENT AND AGREE TO BE BOUND BY ALL OF ITS TERMS AND CONDITION