Cellular Smarts™ – Affiliate Terms and Conditions
To be an authorized Affiliate of www.cellularsmarts.com, you agree to abide by the Terms and Conditions contained in this Agreement.
As used in this Agreement:
“Cellularsmarts.com” or “we”, “our” or “us” means Cellularsmarts.com (or its beneficial or legal owner as the context may require).
“Applicant” or “you” means you.
“Affiliate” means an Applicant who has completed the application form described below and who has been accepted by Cellularsmarts.com into the Affiliate Program.
“Your Site” or “Affiliate Site” means the website you create using the Cellularsmarts.com software, for use in the
The “Cellularsmarts.com Site(s)” shall mean any websites that are owned and operated by Cellularsmarts.com.
In order to maintain a high quality program for Affiliates, Cellularsmarts.com monitors all Program activity and does not accept any Affiliates whose Web site(s) or online activity does not comply with this Agreement.
- CELLULARSMARTS.COM AFFILIATE AGREEMENT
1.1 By completing and submitting the accompanying (Cellularsmarts.com) Affiliate Program application form (as further set out in clause 3), you are agreeing:
(a) to enter into a legal agreement with Cellularsmarts.com which contains all of the terms and conditions below and governs your participation in the Cellularsmarts.com Affiliate Program (the “Affiliate Program” or “Program”).
(b) not to:
(i) Mislead others;
(ii) Operate or utilize a Web site or email link to Web sites that contain or promote any of these types of content: libelous, defamatory, obscene, pornographic, abusive, violent, bigoted, hate- oriented, illegal, cracking, hacking or warez, or that offer any illegal goods or service, or link to a Web site(s) that do so; and/or
(iii) Engage in spamming, indiscriminate advertising or unsolicited commercial email;
(iv) Engage in cybersquatting or typo squatting; and/or
(v) Offer incentives of any kind such as for reading emails, clicking on links (including PTC programs), registering to web forms or offering any incentives of any kind for any of Cellularsmarts.com’s campaigns is strictly prohibited. Anyone found in breach of our policies will be terminated from the Program and commission balance set to $0.00.
1.2 The purpose of this Agreement is to govern the terms and conditions relating to HTML linking between Your
Site and the Cellularsmarts.com Site(s).
- STATEMENT OF INVESTIGATION
2.1 You acknowledge that you have read this Agreement and agree to all of its terms and conditions. You acknowledge that you have independently evaluated the desirability of participating in the Cellularsmarts.com Affiliate Program and are not relying on any representation, guarantee, or statement other than as set forth in this Agreement.
- APPLICATION TO THE CELLULARSMARTS.COM AFFILIATE PROGRAM
3.1 To begin the application process, you must submit a complete Affiliate Program application. Cellularsmarts.com may reject or terminate your application if it determines (in its sole discretion) that you are unsuitable for the Cellularsmarts.com Affiliate Program for any reason, including but not limited to:
(a) If you incorporate images, text or content that is in any way:
(i) lewd, profane, obscene, or indecent, including any content that is violent or pornographic or that contains nudity, explicit violent or sexual material, or depictions of violent or sexual acts;
(ii) is harassing, threatening, abusive, inflammatory or otherwise objectionable, including content used to harass, stalk or threaten a person;
(iii) is unlawful or that could facilitate the violation of any applicable law, regulation or governmental policy;
(iv) offers or disseminates any fraudulent goods, services, schemes or promotions, including any make-money-fast schemes, chain letters, or pyramid schemes;
(v) is libelous, defamatory, knowingly false or misrepresents another person;
(vi) infringes upon the intellectual property rights of any third party, including the copyrights, trademarks, trade names, trade secrets or patents of such third party;
(vii) is harmful to Cellularsmarts.com’s or any other party’s systems and Programs, including any transmissions which may damage, interfere with, surreptitiously intercept, or expropriate any system, program, data or personal information;
(viii) violates any obligation of confidentiality;
(ix) violates the privacy, publicity, moral or any other right of any third party; and
(x) consists of any other content that Cellularsmarts.com in its sole discretion deems to be unacceptable content; or
(b) If you are threatening or abusing in any way, any of Cellularsmarts.com’s staff, including directors, managers, support operators and/or web designers; or
(c) If you provide us with fake details such as your name and/or address. or, if requested, you provide us with a fake copy of your photo id.
3.2 Your account(s) may also be suspended or terminated when multiple active Affiliate accounts have been found to be registered under the same personal data including name, email address etc. If Cellularsmarts.com rejects or terminates your application, you may re-apply at any time, and Cellularsmarts.com may reconsider the application.
3.3 Cellularsmarts.com reserves the right to decline (in its sole discretion) any application submitted by any relative, friend and/or acquaintance of any Cellularsmarts.com employee (including support staff and managers).
- PROMOTIONAL METHODS AND CONFIRMING LEADS
4.1 You must promote such that you do not mislead the visitor, and such that the links deliver bona fide transactions by the visitor to Cellularsmarts.com from the link. You shall not cause any transactions to be made that are not in good faith, including, but not limited to, using any device, program, robot, I frames, or hidden frames. It is likely that we will not, in our discretion, compensate you for the following kinds of transactions (as examples):
(a) Where the lead is you, your agent, friends or family members;
(b) Multiple leads from the same individual, entity or IP address;
(c) Leads with fake/temporary email accounts or leads which do not otherwise open emails; and
(d) Leads which are unresponsive, unsubscribe bounce (when emails can’t be delivered to the lead), duplicate in our system and/or have low conversions to generating revenue for Cellularsmarts.com.
These kinds of transactions are considered non-bona fide (not genuine) (unless you can show otherwise to our satisfaction). You will not earn referral fee payouts (clause 7) for non-bona fide transactions. Cellularsmarts may look for patterns of non-bona fide transactions in your activity. Any payment on non-bona fide transactions on any occasion does not constitute acceptance of those transactions by Cellularsmarts and we reserve the right to reject payment on similar transactions at any time in the future if we consider the transactions to be non-bona fide when reviewing patterns of your activity.
4.2 Offering incentives of any kind and/or purchased leads, guaranteed sign-up offers, or anything related to “buying leads” on any of our campaigns and/or on our Affiliate Program is strictly prohibited. Any Affiliate found to be generating leads through this form of advertising will be found in breach of this Agreement and may be deactivated and/or terminated from the Program immediately and any qualifying fees or commissions may be forfeited.
4.3 Promoting Cellularsmarts.com via unsolicited email is strictly prohibited and you agree to not reference Cellularsmarts.com in any way, shape, or form, in any email that you send in which the recipient has not specifically asked to receive it. In the case of mailings which are conducted by a third party on your behalf, you assume full responsibility and you are advised to perform due diligence to ensure that the mailing list is in fact 100% opt- in. Furthermore, you MAY NOT link to Cellularsmarts.com from any URL that is promoted via unsolicited email. You represent and warrant that you will not engage in and/or facilitate spamming, indiscriminate advertising or unsolicited commercial email or otherwise fail to comply with any laws and/or regulations whether in United States or elsewhere that govern email marketing and/or communications. You MUST comply with United States “Can-Spam Act of 2003” or the equivalent legislation applicable to your jurisdiction. You represent and warrant that you will not engage in pop-up or pop-under advertising using any means involving third party properties and/or services (software). Pop up/unders are acceptable on a first party basis only when triggered by Your Site or Blog content /site visit or by downloadable software applications for which you are the owner/operator. Pop up/unders delivered through downloadable software cannot engage in means that force clicks or perform redirects, or pop over a pay-per-click listing or natural search results.
4.4 It is strictly prohibited to:
(a) Offer incentives to people for registering their details onto any or all of our web forms (other than incentives directly contemplated by the Affiliate Program). You may not offer incentives or bonuses of any kind to generate leads through our pay per lead campaigns/Programs.
(b) Advertise or promote Cellularsmarts.com using reference or claims to any overhyped or excessive income/earning potential of Affiliates. Any reference to earning potential must be factual and relate only to your own earnings/income through the Cellularsmarts.com Affiliate Program (and must not otherwise be misleading in any way). However, it is noted that Cellularsmarts.com does not encourage promotion by reference to earning potential.
(c) Undertake any activities or make any representations in connection with Cellularsmarts.com which could deceive or mislead any person or which might otherwise be in breach of the Fair Trading Act 1986 (or any amendment thereof) or any other relevant legislation in the jurisdiction in which you are advertising.
4.5 You understand and agree that Cellularsmarts.com may immediately terminate this Agreement (and your Affiliate membership) and permanently withhold all fees or commissions due if you are found in violation of this policy.
- LINKING YOUR SITE or Blog TO CELLULARSMARTS.COM AND LIMITED LICENSE GRANT
5.1 We will provide you with access to the Cellularsmarts™ software where you can create your Cellularsmarts™ website or Blog suitable for the Cellularsmarts.com Affiliate Program. We may also provide you with banner, banner advertisements, button links, or text links to the Cellularsmarts.com Site(s), containing Cellularsmarts.com’s trademarks, service marks, trade names, logo and words identifying Cellularsmarts.com (the “Cellularsmarts.com Marks”) (each of these advertisements and links referred to herein as “Links”, or individually as a “Link”), which, subject to the terms and conditions hereof, you may display on Your Site. In utilizing the Links, you agree that you will cooperate fully with Cellularsmarts.com in order to establish and maintain such Links. All Affiliates shall display such Links prominently throughout their Affiliate Site. Each Link connecting users of Your Site to Cellularsmarts.com Sites will in no way alter the look, feel or functionality of Cellularsmarts.com Site. Cellularsmarts.com has the right in its sole discretion to monitor Your Site at any time and from time to time to determine if you are in compliance with the terms of this Agreement. You also agree that you will substitute such images with any new images provided by Cellularsmarts.com from time to time throughout the term of this Agreement.
5.2 Subject to the terms and conditions of this Agreement, Cellularsmarts.com grants you a limited, non-exclusive, non- assignable, non-transferable, royalty-free license to:
(a) Place Links on the Affiliate Site during the term of this Agreement; and
(b) Use the Cellularsmarts.com Marks as incorporated into the Links, for the sole purpose of linking to the
- OWNERSHIP OF LINKS AND CELLULARSMARTS.COM MARKS
6.1 You acknowledge that all right, title and interest in the Links and the Cellularsmarts.com Marks are exclusively owned by Cellularsmarts.com and/or its licensors, and that no right other than the limited license granted herein is provided to you. You shall not assert copyright, trademark or other intellectual property ownership or other proprietary rights whether in the United States or elsewhere, in the Links or the Cellularsmarts.com Marks or in any element, derivation, adaptation, variation or name thereof.
6.2 You agree that your use of the Links and the Cellularsmarts.com Marks incorporated therein inures to the benefit of Cellularsmarts.com. All goodwill or reputation in the Links and the Cellularsmarts.com Marks shall automatically vest in Cellularsmarts.com when the Links are used by you pursuant to this Agreement. You shall not contest the validity of any of the Cellularsmarts.com Marks or Cellularsmarts.com’s exclusive ownership of them. During the term of this Agreement, you shall not adopt, use, or register, or apply for registration of, whether as a corporate name, trademark, service mark or other indication of origin, whether in the United States or elsewhere, any of the Cellularsmarts.com Marks, or any word or mark confusingly similar to them in any jurisdiction.
- FEES (AFFILIATE FINANCIAL COMPENSATION)
7.1 Qualifying Fees: We will pay you in United States dollars on a pay-per-lead basis (per confirmed lead), or a pay-per-sale basis (per completed sale), as applicable to the particular program/campaign, at the rate specified on your Affiliate Control Panel.
(a) A confirmed lead to the Cellularsmarts.com Affiliate Program is achieved when someone subscribes to our website and/or web form and confirms their subscription by email (see clause 4 for a description of leads which are likely to be declined by us). New lead registrations will have 30 days to confirm their registration. If the new lead has not confirmed their registration within the required timeframe, it will be deleted from your account’s pending balance. Notwithstanding the above, Cellularsmarts.com reserves the right to determine, in its sole discretion, whether a lead to the Cellularsmarts.com Affiliate Program is confirmed for the purposes of paying fees to Affiliates.
(b) A completed sale of a Cellularsmarts.com product is achieved when one of your referrals (not being you or through your own affiliate account) purchases a Cellularsmarts.com product and we receive purchase monies in cleared funds in our account and no refunds and/or chargebacks have occurred. Cellularsmarts.com reserves the right to determine, in its sole discretion, whether a sale is completed for the purposes of paying any pay-per-sale fees to Affiliates.
All Affiliates that are accepted to the Cellularsmarts.com Affiliate Program will have access to their own personal Affiliate Control Panel where they will find the current and accurate pay rate for the relevant program/campaign. The pay rate may be changed by Cellularsmarts.com in its sole discretion, without notice and will be updated within the Affiliate Control Panel. The current and accurate pay rate will be displayed within the Affiliate Control Panel and will apply to you immediately.
You understand that Cellularsmarts.com monitors all Affiliate registrations and subscriptions and agree that Cellularsmarts.com may immediately terminate this Agreement and permanently withhold all fees due if you are found in violation of this policy.
7.2 Fee Payments:
(a) Cellularsmarts.com will pay all qualifying fee payments to you in United States dollars. All weekly Affiliate commissions are processed “Monday thru Friday” and paid the following week on Friday related to weekly commissionable opportunities. All Monthly Affiliate commissions are processed between the 1st and 15th of each month and are paid on Friday on the last week of the month, for the previous month’s qualifying commissions related to monthly commissionable opportunities. In the case of pay dates that fall weekends/holidays. Commissions will be paid on next business day following the weekends/holiday. All Affiliate payments are subject to:
(i) Your leads being “confirmed” by Cellularsmarts.com and/or it’s affiliate companies (see clause 4) (if applicable to the relevant program/campaign);
(ii) A sale of a Cellularsmarts.com product being completed to Cellularsmarts.com’s satisfaction (if applicable to the relevant program/campaign);
(iii) You having reached the minimum payment threshold; and
(iv) Your account not being under investigation for fraud.
(b) Once a payment has been approved by Cellularsmarts.com it will become a “qualifying Commission” and will be displayed under “amount due” in your Affiliate Control Panel. However Cellularsmarts.com still retains the right to decline/cancel a qualifying commission. Once your payment has been processed, its status will change from “pending” (Amount Due) to “sent” (Total Paid to date).
(c) In the event your total qualifying fees for any month are less than $100.00 (excluding any bonus commissions) we will hold all qualifying fees until the amount due to you is at least $100.00 or until such time as this Agreement is terminated, whichever is the earlier.
(d) All Affiliate fees are paid on a one time basis only. Multiple subscriptions (leads) to our website from the same IP address or with the same contact details such as email address or name, will only be paid a fee once (1 time). If multiple subscriptions (leads) from the same IP address or with the same contact details occur, these commissions per lead will be declined.
(e) If commissionable qualifying services are not confirmed or are unsubscribed/cancelled by your customer, the corresponding commissions will be deducted on or after the 15th of the following month, or if the corresponding commissions have already been paid to you, the commissions will be charged back from your next monthly commission payment.
7.3 Bonus Commission Payments:
(a) You may become entitled to bonus commissions and payments either at the time when your application is accepted by Cellularsmarts.com or otherwise at the discretion of Cellularsmarts.com. Any programs/campaigns which offer bonus commission payments you will be notified by Cellularsmarts.com as implemented and details of the relevant pay rates for those programs/campaigns will appear in your Affiliate Control Panel.
(b) Cellularsmarts.com reserves the right to alter or withdraw any or all bonus commission payments at any time, by notice to Affiliates. Affiliates will also be notified of any new bonus commission policies established by Cellularsmarts.com.
7.4 Payout Methods:
(a) Payouts will be paid via PayPal.com. Payments can only be made to verified PayPal accounts (go to www.paypal.com for more information on how to become a PayPal verified member). Receiving your payouts via PayPal will be instant and it’s the safe, easy, secure way to send and receive money online. It is your full responsibility to provide us with accurate payout details and keep them up to date at all times. By accepting this Agreement, you agree that Cellularsmarts.com can never be held responsible if the payout details are incorrect and payment fails to reach you even though we have sent your payment. We can re-issue your payment only after thirty (30) days but within ninety (90) days. An administration and payment cancellation fee of $25 per payment will apply for re-issuing your payment and cancelling your previous payment. We currently do not provide payments via wire transfer.
(b) You are responsible for any and all fees, taxes, exchange rates, surcharges and other expenses incurred in order to receive your commissions. Please check with your local banking institution or with www.paypal.com to find out if any of these apply for your area/country.
7.5 Tax Reporting: You will be fully responsible for paying your own taxes by the rules and laws of your country of residence. Cellularsmarts.com will not deduct any tax from Payments made to you, except to the extent required by law. You should seek independent financial advice on your tax and other financial obligations.
7.6 Rules, Policies and Procedures: Any Affiliates who register for any Cellularsmarts.com service or product will be deemed to be customers of Cellularsmarts.com, and accordingly, all Cellularsmarts.com rules, policies, and operating procedures will apply. We will determine the prices charged for the Cellularsmarts.com services provided to Affiliates under this Affiliate Program in accordance with our own pricing policies. Cellularsmarts.com, at its sole discretion, may change its rules, policies, operating procedures, services offered, pricing and fees at any time without prior notice.
7.7 Dispute or Discrepancy: If a dispute or a perceived discrepancy arises between the Affiliate and Cellularsmarts.com the Affiliate has 60 calendar days from the date of the sign-up transaction made by the Affiliate’s referral, (the sign-up date counting as day 1), to notify Cellularsmarts.com of such dispute and file a claim. After the 60-day grace period has lapsed (day 61+), all disputes and or claims will be considered null and void.
8.1 Cellularsmarts.com actively monitors traffic, actions, fees and other Affiliate Program related activities for potential fraud. If Cellularsmarts.com suspects that your account has been used in a fraudulent or non-bona fide manner, your account may be deactivated effective immediately and with no notice to you, pending further investigation. If you add actions, or inflate actions, through the use of fraudulent means of traffic generation, as determined solely by Cellularsmarts.com, you will forfeit all of the payments related to that Program and your Affiliate account will be terminated effective immediately. Cellularsmarts.com reserves sole judgment in determining fraud, and you agree to be bound by any and all such determinations as a final judgment on the matter. It is your OBLIGATION to prove to Cellularsmarts.com that you have NOT engaged in fraud. Cellularsmarts.com will hold your fee payments in ‘Pending Status’ until you have satisfactorily provided evidence that demonstrates to Cellularsmarts.com that you have not engaged in fraud. If you are unable to provide Cellularsmarts.com with satisfactory evidence that you have not engaged in fraud within seven (7) days of your fee payment(s) being placed in “Pending Status,” then Cellularsmarts.com reserves the right to terminate your Affiliate account and cancel payment on the applicable referrals, at its sole discretion and without any further obligations to you.
- OBLIGATIONS REGARDING YOUR SITE
9.1 You are solely responsible for the development, operation, and maintenance of Your Site or Blog and for all materials and content that appear on Your Site or Blog. Cellularsmarts.com will not be responsible for, and disclaims all liability for, any of the foregoing, and you agree to indemnify and hold Cellularsmarts.com harmless from: all damages; claims; fees (including legal fees on a solicitor/client basis); and expenses arising from or relating to the development, operation, or maintenance of Your Site or Blog and any content displayed on Your Site or Blog including but not limited to any claim that content displayed on Your Site or Blog infringes or misappropriates any intellectual property right of a third party.
9.2 You agree to indemnify Cellularsmarts.com from and against any losses, damages, costs, charges, expenses and other liabilities (including legal fees on a solicitor/client basis), incurred by or awarded against Cellularsmarts.com as a result of, or in connection with any infringement or alleged infringement by you of a third party’s intellectual property rights. You agree that:
(a) You will, as soon as reasonably practicable, notify us in writing of any known or reasonably suspected claim;
(b) You will not make any admission of liability or agree to any settlement or compromise in relation to a claim, without our written consent;
(c) You will, at your own expense, conduct any negotiations, proceedings and/or litigation that you deem appropriate provided that you keep us notified; and
(d) You will immediately modify or replace the infringing material so as to avoid the infringement or alleged infringement from reoccurring.
- TERM OF THE AGREEMENT
10.1 The term of this Agreement begins upon Cellularsmarts.com’s acceptance of your application for the Affiliate Program and ends when terminated by either party in accordance with this Agreement.
- TERMINATION OF THE AGREEMENT
11.1 This Agreement may be terminated by either party at any time, for any reason or no reason, upon 24 hours’ notice. This Agreement may be terminated by us immediately if you breach this Agreement. Your account may be deactivated during investigation of any breach of this Agreement. If this Agreement is terminated based upon your breach, you shall not be eligible to enter into a new Affiliate Agreement with Cellularsmarts.com, and any attempt to do so shall be null and void. Within 24 hours after termination (whether by you or Cellularsmarts.com), you must remove the Cellularsmarts.com Links and any other Cellularsmarts.com Marks from Your Site or Blog and you must destroy or erase from computer memory or any other storage device any items you might have that contain Cellularsmarts.com Links, Cellularsmarts.com Marks or Cellularsmarts.com Confidential Information (as defined herein). Any licenses, linking or other rights granted to the Affiliate pursuant to this Agreement will immediately cease upon termination of this Agreement.
11.2 Upon termination, Cellularsmarts.com will pay you any qualifying fees you might have earned before termination (excluding any bonus commissions), 120 days after the end of the calendar quarter in which this Agreement has been terminated. If your account has been terminated for violating our policy or is under review for fraudulent activity, any and all fees and/or commissions will be permanently frozen and/or withheld. Should this Agreement be terminated by Cellularsmarts.com, any and/or all leads earned up to 6 months prior to termination of this Agreement will be additionally checked for validity, duplication and/or un-subscribe status.
11.3 Cellularsmarts.com may terminate your account, one of your web sites/ blogs, or your use of a promotional method, from the Program, at any time in Cellularsmarts.com’s sole discretion. Breach of any section of this Agreement is cause for immediate termination from our Affiliate Program and termination of this Agreement, and may result in a chargeback of one or more payouts. Cellularsmarts.com may temporarily deactivate or terminate your account (in its discretion) if:
(a) You or your agent are responsible for the improper functioning of ad content, or if you otherwise interfere with and/or fail to maintain the tracking code;
(b) Your account has not been logged into and/or there have been no transactions credited to your account for any 30-day period;
(c) You have a negative balance in your account;
(d) Cellularsmarts determines there has been fraudulent activity or a pattern of non-bona fide transactions in relation to your account;
(e) Cellularsmarts.com determines you are infringing, misusing, diluting, tarnishing or blurring Cellularsmarts.com’s proprietary rights;
(f) You begin proceedings to challenge Cellularsmarts.com’s proprietary rights;
(g) A third party disputes your right to use any Link, domain name, trademark, service mark, trade dress, or right to offer any service or good offered on your web site, or through any of your promotional means.
11.4 Any accounts that have had no earnings activity for thirty (30) days or more may be deactivated by Cellularsmarts.com without notice. You can re-apply at any time subject to acceptance to the Program.
- MODIFICATION OF TERMS AND CONDITIONS
12.1 Cellularsmarts.com may modify any of the terms and conditions contained in this Agreement and it will be the Affiliate’s full responsibility to check the Terms & Conditions on a regular basis. The current and accurate Terms & Conditions will be available on our website at all times with the Affiliate sign-up form. If a modification is unacceptable to you, you may terminate this Agreement by giving notice of termination to Cellularsmarts.com and following the procedures in clause 11 (Termination of the Agreement). If you do not give Cellularsmarts.com notice of termination in accordance with clause 11 and continue to display the Links on Your Site, then you will be deemed to have accepted the modifications. You acknowledge that by visiting the website from time to time and by using the Cellularsmarts.com Affiliate Program, you shall become bound to the current version of the relevant terms and conditions (the “current version”) and, unless stated in the current version, all previous versions shall be superseded by the current version. You shall be responsible for reviewing the then current version each time you visit the website and/or use the Cellularsmarts.com Affiliate Program.
- RELATIONSHIP OF THE PARTIES
13.1 You and Cellularsmarts.com are independent contractors, and nothing in this Agreement creates any partnership, joint venture, agency, franchise, sales representative, or employment relationship between you and Cellularsmarts.com. You understand that you do not have authority to make or accept any offers or make any representations on behalf of Cellularsmarts.com. You may not make any statement, whether on Your Site, Blog or otherwise, that would contradict anything in this section.
14.1 During the term of this Agreement, you may have access to certain Confidential Information (as defined below), you agree:
(a) Not to disclose any Confidential Information to any third parties (other than your employees and/or consultants reasonably requiring such Confidential Information for the purposes of this Agreement who are bound by obligations of nondisclosure and limited use at least as stringent as those contained herein) without the express prior written consent of Cellularsmarts.com;
(b) Not to use any Confidential Information for any purposes except carrying out your rights and responsibilities under this Agreement; and
(c) To keep the Confidential Information confidential using the same degree of care you use to protect your own confidential information, as long as you use at least reasonable care.
14.2 For purposes of this Agreement, Confidential Information means any and all information in written, representational, electronic or other form relating directly or indirectly to the present or potential business, operation or financial condition of Cellularsmarts.com (including, but not limited to, marketing plans, customer and supplier lists and product data) excluding any such information which at the relevant time:
(a) is known to the public (through no act or omission of the Affiliate in violation of this Agreement);
(b) is lawfully acquired by the Affiliate from an independent source having no obligation to Cellularsmarts.com;
(c) was known to the Affiliate prior to its disclosure under this Agreement.
- GUARANTEE AND INDEMNITY BY DIRECTORS/TRUSTEES
15.1 Where the Affiliate is an incorporated body or a trust, the directors or trustees of the Affiliate (as the case may be) from time to time (the “Covenantor(s)”) agree to provide the following guarantee:
(a) The Covenantor(s) (jointly and severally) guarantee(s) to Cellularsmarts.com the due performance by the Affiliate of all of its obligations under this Agreement. The Covenantor(s) agree(s) that it will cause the Affiliate to comply with the terms of this Agreement.
(b) The liability of the Covenantor(s) under this guarantee constitutes a principal obligation of the Covenantor(s) and shall not be relieved or in any way affected in a manner prejudicial to Cellularsmarts.com by the granting of time, waiver or forbearance to sue by Cellularsmarts.com or by any act, omission, matter, circumstance or law whereby the Covenantor(s) as surety only would, but for the provisions of this clause, have been released from liability hereunder.
(c) The Covenantor(s) acknowledges that the guarantee is a continuing one and Cellularsmarts.com is not bound
to exercise or exhaust its remedies under this Agreement before being entitled to enforce the guarantee.
(d) The Covenantor(s) has/have read all of the terms and conditions of this Agreement and understand(s) that this clause 15 is binding upon him/her/them notwithstanding that any part of this Agreement may be found to be irregular or defective in any way.
15.2 The Affiliate and the Covenantor(s) each agree that they shall, jointly and severally, indemnify Cellularsmarts.com upon demand from time to time against all or any costs, losses (including loss of profit and full costs on a solicitor and client basis incurred by Cellularsmarts.com) or expenses which Cellularsmarts.com may sustain or incur as a consequence of:
(a) Any default by the Affiliate under this Agreement; and/or
(b) The occurrence or continuance of such default.
16.1 Except as expressly set forth in the Agreement, Cellularsmarts.com makes no representations or warranties, and expressly disclaims any representations or warranties, express or implied, regarding the Affiliate Program, the Links, trademarks, the Cellularsmarts.com Sites, the Cellularsmarts.com service, and any other service provided by Cellularsmarts.com hereunder, and any other service, content, tools, or related documents or materials (in electronic form or otherwise) provided hereunder, including, without limitation, any implied warranty of merchantability or fitness for a particular purpose, title or non-infringement and implied warranties arising from a course of dealing or course of performance or trade usage. Cellularsmarts.com expressly disclaims any representation or warranty regarding the performance, availability, functionality, or any other aspect of the Cellularsmarts.com Sites.
16.2 Every effort has been made to accurately represent this product and its potential. There is no guarantee that you will earn any money using the techniques and ideas in these materials. Examples in these materials are not to be interpreted as a promise or guarantee of earnings. Earning potential is entirely dependent on the person using our product, ideas and techniques. We do not purport this to be a “Get Rich Scheme”.
16.3 Any claims made of actual earnings or examples of actual results can be verified upon request. Your level of success in attaining the results claimed in our materials depends on the time you devote to your Affiliate Marketing Website, ideas and techniques mentioned, your finances, knowledge and various skills. Since these factors differ according to individuals, we cannot guarantee your success or income level. Nor are we responsible for any of your actions. This is not a pyramid scheme and your remuneration does not rely on the performance of any other Affiliate in the Program.
16.4 Materials in our product and our website may contain information that includes or is based upon forward- looking statements. Forward-looking statements give our expectations or forecast of future events. You can identify these statements by the fact that they do not relate strictly to historical or current facts. Any and all forward looking statements here or in any of our material are intended to express our opinion of earnings potential. Many factors will be important in determining your actual results and no guarantees are made that you will achieve results similar to ours or anybody else’s. In fact, no guarantees are made that you will achieve any result from our website, ideas and techniques in our material.
16.5 You understand that the operation and/or use of the Links, Your site, Blog or the Cellularsmarts.com Site(s) may not be uninterrupted or error free, and may have errors or omissions. You agree that Cellularsmarts.com will not be liable for any interruptions or errors in using the Links.
- LIMITATION OF LIABILITY
17.1 Cellularsmarts.com will not be liable for lost profits, lost business opportunities or any other indirect, special, punitive, incidental, or consequential damages arising out of or related to this Agreement, the Links, the Cellularsmarts.com service or Cellularsmarts.com Affiliate Program, even if Cellularsmarts.com has been advised of the possibility of such damages, including loss of data or loss or interruption of services or communications. Further, Cellularsmarts.com’s aggregate liability for direct damages arising under this Agreement will not exceed the amount of the total fees paid or payable to you under this Agreement.
- MISCELLANEOUS PROVISIONS
18.1 Governing Law: This Agreement will be governed by the laws of the United States, without reference to rules governing choice of laws. Any action relating to this Agreement must be brought in the courts located in Fairfax County, Virginia and you irrevocably consent to the non-exclusive jurisdiction of such courts.
18.2 No Assignment: 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 enforceable against the parties and their respective successors and assigns.
18.3 No waiver: Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement.
18.4 Amendment: You agree that Cellularsmarts.com reserves the right to change and alter these terms and conditions at its sole discretion and to apply any changes or alterations retroactively as Cellularsmarts.com sees fit.
18.6 Injunction: The parties acknowledge that monetary damages will not necessarily be an adequate remedy for breach of this Agreement and Cellularsmarts.com may, in addition to any other legal or equitable remedies, seek an injunction, specific performance or any other legal or equitable relief against such breach or threatened breach without the necessity of posting any bond.
18.7 Invalidity: In the event that any provision of this Agreement shall, in whole or in part, be determined to be invalid, unenforceable or void for any reason, such determination shall affect only the portion of such provision determined to be invalid, unenforceable or void, and shall not affect in any way the remainder of such provision or any other provision of this Agreement. You and Cellularsmarts.com agree to negotiate in good faith or to permit a court or arbitrator to replace any provision of this Agreement held invalid, unenforceable or illegal with a valid provision that is as similar as possible in substance to the invalid, unenforceable or illegal provision.
18.8 Force Majeure: In no event shall Cellularsmarts.com have any liability for any delayed performance or non- performance by Cellularsmarts.com which results, in whole or in part, directly or indirectly, from any cause beyond the reasonable control of Cellularsmarts.com.
18.9 Clauses Surviving Termination: The provisions of clauses 6 to 11, 13 to 18 (inclusive) and any other clause which, by its nature, is intended to survive termination, shall survive termination or expiration of the Agreement.