Affiliate Agreement

Agreement

This constitutes the agreement (“Agreement”) between you (“You”, “you”, “your” or “Your”) and Ingenio, Inc. (“We”,“we” or “our”) whereby You agree to participate in our affiliate program (“Affiliate Program”) pursuant to the terms and conditions set forth herein.

Relationship of Parties

You and we are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. 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 website or otherwise, that reasonably would contradict anything in this section.

Our Responsibilities

We will be responsible for providing all information necessary to allow you to make appropriate Links from Your website to Our website. We will be solely responsible for processing every application placed by a customer following a Link from Your website, for tracking the number and amount of sales generated by the Link from Your website, and for providing information to you regarding sales statistics. Also, we will be responsible for credit card authorizations, payment processing, cancellations, returns, and related customer service, it being understood that such activities shall be for our account.

Responsibility for Your Site

You will be solely responsible for the development, operation, and maintenance of your website and for all materials that appear on your website. For example, you will be solely responsible for:

  • The technical operation of your website and all related equipment
  • The accuracy and appropriateness of materials posted on your website (including, among other things, all product and service-related materials
  • Ensuring that materials posted on your site and that the operations of your website do not violate or infringe upon the rights of any third party (including, for example, copyrights, trademarks, patents, privacy, or other personal or proprietary rights)
  • Ensuring that materials posted on your site are not libelous or otherwise illegal

We disclaim all liability for these matters. Further, you will indemnify, defend and hold us harmless from all claims, damages, liabilities and expenses (including, without limitation, attorneys' fees) relating to the use, development, operation, maintenance, and contents of your website.

Linking

As an Affiliate, we will make available to you a variety of graphic and textual links (each of these links sometimes being referred to herein as "Links" or, individually, as a "Link"), which, subject to the terms and conditions hereof, you may display as often and in as many areas on your website as you desire. The Links will serve to identify your website as a member of our Affiliate Program and will establish a link from your website to ours.

  1. Agreements Regarding Links: In utilizing the Links, you agree that you will cooperate fully with us in order to establish and maintain such Links. You also agree that you will display in your website only those graphic or textual images (indicating a Link) that are provided by us, and you will substitute such images with any new images provided by us from time to time throughout the term of this Agreement. All Affiliate websites shall display such graphic and/or textual images prominently in relevant sections of their website. All Links may be modified and/or expanded from time to time throughout the term of this Agreement pursuant to the mutual agreement of the parties hereto. Each Link connecting users of your website to our website will in no way alter the look, feel, or functionality of our website.
  2. We will refuse all applications or signups from affiliates which we believe participate in spyware, adware or parasiteware techniques for driving traffic. We reserve the right to research and investigate affiliates and their activities and, at our own discretion, determine whether or not these practices are in place. Affiliates found in violation of this policy will be immediately terminated from the Affiliate Program and will forfeit all commissions.

Regular Commission Schedule

You will earn commissions (also sometimes called “referral fees”) based according to the commissions schedules to be established by us. The current commission schedule is:

  • $25 per Ingenio Pay Per Call® account signup
  • Bonus Commission Possibilities:
    Affiliates who qualify as top performers can earn a higher commission. Please talk to your account representative for additional information on bonus commissions.

    • Other than the Regular Commission or the Bonus Commission, no other fees, commissions or payments will be made to you under this Agreement

Commission Payment

We will pay you commissions on a monthly basis. Approximately 15 days following the end of each calendar month, we will send you a check for the referral fees commissions earned on sales of Products that were purchased and paid during that month. However, if the referral fees payable to you for any calendar month are less than $25.00, we will hold those referral fees until the total amount due is at least $25.00 or (if earlier) until this Agreement is terminated. If a Product that generated a referral fee is not paid in complete by the end customer or is purchased by the use of a fraudulent credit card, we will deduct the corresponding referral fee from your next payment. If there is no subsequent payment, we will send you a bill for the commission paid on sales.

Commission Eligibility

Affiliates are not eligible to earn commissions on their purchases of any Ingenio products. Tax Reporting Requirement United States Affiliates (individual/resident/corporation/business) must provide us with a completed W-9 Federal Tax form before we will issue a check to the Affiliate. We agree to issue a 1099 to Affiliates only if they reach the maximum payout allowed under Federal tax law (currently $600 - 3/30/01). We will provide you with the necessary form.

Anti-SPAM Policy

We do not and will not tolerate the sending of unsolicited email messages and will prosecute all offenders to the fullest extent of the law. By agreeing to the terms and conditions of this agreement, you also agree to the following.

  1. e-mails promoting Ingenio shall not contain or include a falsified sender domain name or falsified IP address;
  2. e-mails promoting the Ingenio advertisements shall not be routed or relayed through servers that the sender does not have explicit authorization to use;
  3. e-mails promoting the Ingenio advertisements shall not contain or include a false or misleading subject line that attempts to disguise or conceal the content of the e-mail;
  4. all e-mails shall contain or include valid and responsive contact information of the sender, list manager or list owner; This includes your physical address.
  5. no e-mails promoting Ingenio shall be sent for the purpose of harvesting the e-mail addresses in order to send future unsolicited e-mails
  6. all e-mails promoting Ingenio will be sent to individuals who have given you their “Affirmative Consent“ as defined in Sec. 3.1 of the ”CAN-SPAM Act of 2003” (viewable at GPOAccess.gov) which by its reference is incorporated into this document.
  7. every e-mail promoting Ingenio advertisements shall contain a functioning return electronic mail address or other Internet-based mechanism clearly displayed that a recipient may use to submit in a manner specified in the message a reply electronic mail message or other form of Internet-based communication requesting not to receive future e-mail messages from you
  8. you shall process any and all opt-out requests within 5 business days, or less of the request.
  9. unless otherwise directed by Ingenio in writing, you shall not use Ingenio, or it's represented advertisers names (including any abbreviation thereof) or any trademark, trade name, service mark, logo or other Ingenio identifying information in the originating or return e-mail address line, header or subject line of any e-mail transmission and that all e-mail transmissions shall contain language in the body and both the "from" line as well as the "re:" line that clearly announces that the offer embedded in the e-mail is being sent by you for the benefit of your users.
  10. you agree and affirm to comply with all the rules and regulations set forth in the “CAN-SPAM Act of 2003” as well as all obligations and provisions herein.

Term of the Agreement

The term of this Agreement will begin upon our acceptance of your Affiliate application and will end when terminated by either party. Either you or we may terminate this Agreement at any time, for any reason or no reason, or with or without cause, by giving the other party written notice of termination. You are only eligible to earn referral fees for account signups occurring during the term of this Agreement.

Modification

We may modify any of the terms and conditions contained in this Agreement, at any time and in our sole discretion, by posting a change notice or a new Affiliate Program agreement on our website. Modifications may include, for example, changes in the scope of available referral fees, fee schedules, payment procedures and Affiliate Program rules. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE AFFILIATE PROGRAM FOLLOWING OUR POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON OUR WEBSITE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.

Limitation of Liability

We will not be liable for indirect, special or consequential damages, or any loss of revenue, profits or data, arising in connection with this Agreement or the Affiliate Program, even if we have been advised of the possibility of such damages. Further, our aggregate liability arising with respect to this Agreement and the Affiliate Program will not exceed the total referral fees paid or payable to you under to this Agreement.

Independent Investigation

YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU UNDERSTAND THAT WE MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) SOLICIT CUSTOMER REFERRALS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT OR OPERATE WEBSITES THAT ARE SIMILAR TO OR COMPETE WITH YOUR WEBSITE. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE AFFILIATE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.

Miscellaneous

This Agreement will be governed by the laws of the United States and the State of California, without reference to rules governing choice of laws. Any action relating to this Agreement must be brought in the federal or state courts located in San Francisco, CA, and you irrevocably consent to the jurisdiction of such courts. You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of and be enforceable against the parties and their respective successors and assigns. Our failure to enforce your strict performance of any provision of this Agreement will not substitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement. This Agreement may not be modified by You without our express written approval. This Agreement together with the Affiliate Program rules which are incorporated herein by this reference is the entire agreement between the parties with respect to the subject matters. Matters which by their sense and context are intended to survive (e.g. provisions relating to indemnity and liability) shall survive the expiration or termination of this Agreement.

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