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Affiliate Agreement PLEASE READ THE ENTIRE AGREEMENT BEFORE SUBMITTING THE APPLICATION. By completing and sending in the online application form, you are agreeing to enter into a legal agreement with Wordtracker, you are agreeing that you have read and understood the terms and conditions of this agreement and that you are legally responsible for each and every term and condition. You acknowledge that you have independently evaluated the desirability of participating in Wordtracker's Affiliate Program and are not relying on any representation, guarantee, or statement other than as set forth in this Agreement. 1. Overview This agreement contains the complete terms and conditions that apply to you becoming an affiliate. The purpose of this Agreement is to allow HTML linking between Your Site and the Wordtracker Site(s). As used in the Agreement, "Wordtracker", "we", "us" or "our" means Wordtracker.com., a London corporation, with its principal place of business at 1 Euston Square, 40 Melton Street London and "Applicant", "you", "your" and "yours" means you, the affiliate. "Affiliate" means an applicant that has completed the application packet described above and that has been accepted by Wordtracker into the Affiliate Program. "Your Site" or “Affiliate Site” means the World Wide Web site that you specify in the application that is owned by you. The "Wordtracker Site(s)" shall mean / and other sites owned and operated by Wordtracker. The "Wordtracker Service" shall mean Wordtracker's online service, that offers users the keyword database and keyword reports which are available at the Wordtracker Site(s). 2. Application To begin the application process, you must submit a complete Affiliate Program online application. Wordtracker will evaluate your application in good faith and will notify you in a timely manner regarding acceptance or rejection of your application. On application the Affiliate must supply to Wordtracker the following information: -The Affiliate's full name and date of birth and -Company name (if relevant) -The Affiliate's full valid postal address and telephone number; -The Affiliate's valid email address; If and when the Affiliate is accepted into the Wordtracker Affiliate Program it is the Affiliate's sole responsibility to ensure that Wordtracker is kept informed of any changes to the information provided by the Affiliate at all times during this Agreement. Wordtracker may reject your application if it determines (in its sole discretion) that Your Site is unsuitable for the Wordtracker Affiliate Program for any reason, including, but not limited to, if Your Site incorporates images or content that is in any way competitive, unlawful, harmful, threatening, defamatory, obscene, harassing or racially, ethically or otherwise objectionable. Constructive feedback may be provided. If Wordtracker rejects your application, you may reapply at any time, and Wordtracker will reconsider the application. 3. Affiliate obligations As a member of Wordtracker’s Affiliate Program, you will have access to Affiliate Account Manager. Here you will be able to review our Program’s details review your account details, download HTML code (that provides for links to web pages within the Wordtracker 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. Wordtracker 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. 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. 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. We may email the address provided with updates to our network. Any emails that receive a delivery error or bounce back may result in the account being removed from our system. 4. No Spamming: Wordtracker does not tolerate any kind of spam. Promoting Wordtracker via unsolicited email is strictly prohibited, and Affiliate agrees to not reference Wordtracker in any way, shape, or form, in any email that Affiliate sends in which the recipient has not specifically asked to receive it. In the case of mailings 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. Furthermore, Affiliate may not link to Wordtracker from any URL that is promoted via unsolicited email. Finally, Affiliate may not advertise or reference Wordtracker via USENET newsgroup postings in any way, shape, or form. Affiliate agrees that Wordtracker will terminate this Agreement and withhold all referral fees due if Affiliate is found in violation of this policy. 5. Linking Your Site to Wordtracker/Limited License Grant As a member of Wordtracker’s Affiliate Program we will make available to you banner advertisements, button links, or text links to the Wordtracker Site(s), containing Wordtracker.com's, trademarks, service marks, tradenames, logo and words identifying Wordtracker.com (the “Wordtracker 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 Wordtracker in order to establish and maintain such Links. All Affiliates shall display such Links prominently throughout the Affiliate Site as approved by Wordtracker in writing. A Link may only be modified and/or expanded with Wordtracker’s prior written consent. Each Link connecting users of Your Site to Wordtracker’s Site, will in no way alter the look, feel or functionality of Wordtracker’s Site. Wordtracker 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 Wordtracker from time to time throughout the term of this Agreement. Subject to the terms and conditions of this Agreement, Wordtracker grants you a limited, non-exclusive, non-assignable, non-transferable, royalty-free license (without the right to sublicense) to (1) place Links on the Affiliate Site during the term of this Agreement; and (2) to use the Wordtracker Marks as incorporated into the Links, for the sole purpose of linking to the Wordtracker Site(s). 6. Ownership of Links and Wordtracker Marks. You acknowledge that all right, title and interest in the Links and the Wordtracker Marks are exclusively owned by Wordtracker 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 in the Links or the Wordtracker Marks or in any element, derivation, adaptation, variation or name thereof. You agree that your use of the Links and the Wordtracker Marks incorporated therein, inures to the benefit of Wordtracker. All goodwill or reputation in the Links and the Wordtracker Marks shall automatically vest in Wordtracker when the Links are used by you pursuant to this Agreement. You shall not contest the validity of any of the Wordtracker Marks or Wordtracker'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, any of the Wordtracker Marks, or any word or mark confusingly similar to them in any jurisdiction. Use of the Links and the Wordtracker Marks is subject to Wordtracker's Linking and Trademark Guidelines, which appear as Appendix A at the end of this Agreement. Wordtracker may modify the Linking and Trademark Guidelines from time to time, and will take commercially reasonable steps to notify you of the modifications. 7. Referral Fees Qualifying Services: All Services sold by Wordtracker to customers originating from Affiliate's Referring Web Site or Referral URL -- and processed via Wordtracker's online order forms, telephone or fax numbers, or mailing address -- qualify to earn Affiliate referral fees as described below. Wordtracker reserves the right to reject any order that does not comply with Wordtracker policy. Referral Fee Amounts: Purchase of the Service by Affiliate's referred customers will earn Affiliate a referral fee equal to twentyfive percent (25%) of the purchase price of the Service. Should Affiliate choose to optionally introduce others to the Wordtracker Affiliate Program, Affiliate will also earn five percent (5%) of the purchase price of the Service paid by Affiliate's Sub-Affiliates' referred customers. Only Qualifying Services for which Wordtracker has received full payment will qualify for referral fees. Definition Of Sub-Affiliates: A Sub-Affiliate is defined as a third party that is in no way related to Affiliate, either personally or commercially. Affiliate is not permitted to register for the Wordtracker Affiliate Program more than once, and any attempt to artificially inflate Affiliate's referral fees will be grounds for immediate termination of this Agreement. Affiliate understands that Wordtracker monitors all affiliate registrations and orders, and agrees that Wordtracker will terminate this Agreement and withhold all referral fees due if Affiliate is found in violation of this policy. Referral Fee Payments: Wordtracker will mail a referral fee payment in U.S. dollars for the applicable referral fees (less any taxes required to be withheld under applicable law) on the 28th of each calendar month for the previous month's referral fees. However, if the Referral Fees payable to you for any month are less than $40.00, we will hold these Referral Fees until the total amount due to you is at least $40.00 or, (if earlier), until this Agreement is terminated. An online statement of customer purchase activity is available to Affiliate at all times. Returns And Cancellations: If referral fee qualifying Services are returned or cancelled by Affiliate's customer, the corresponding referral fee(s) will be deducted from Affiliate's next monthly referral fee payment. Tax Reporting: By law, if referral fee payments to Affiliate accumulate to $599 in a calendar year and Affiliate is a resident of the United States of America, Affiliate will be required to provide Wordtracker with a signed W-9 Form for tax reporting purposes before Wordtracker can make additional referral fee payments to Affiliate during the same calendar year. Any customers who register with the Wordtracker Service will be deemed to be customers of Wordtracker, and accordingly, all Wordtracker rules, policies, and operating procedures will apply to those customers. We will determine the prices charged for the Wordtracker Service provided to customers under this Affiliate Program in accordance with our own pricing policies. Wordtracker, at its sole discretion, may change its rules, policies, operating procedures, services offered, pricing and referral fees at any time without prior notice. You agree not to use any automated, manual or other system to register for the Wordtracker Service except by individual end users who link from Your Site to the Wordtracker Site(s) for the purposes of registering for and using the Wordtracker Services. Wordtracker reserves the right to withhold any Referral Fees if it determines, in its sole discretion, that any fraud of any kind has been committed by the Affiliate. 8. Publicity Affiliates shall not use, or authorize third parties to use, Wordtracker.com or any other variations of the Wordtracker brand and/or any misspellings or similar alterations of these – be it separately or in combination with other keywords – in Pay-Per-Click (PPC) campaigns or as domain names or as a meta-tags unless expressly permitted by Wordtracker. 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 behaviour. The Affiliate is not permitted to use any of the content of any websites owned and/or operated by Wordtracker without written consent and the Affiliate shall not frame any pages or parts of any pages of the Wordtracker’s site or any other website nor will the Affiliate create the impression that the Affiliate Website is Wordtracker’s Website or any part of Wordtracker’s Website The Affiliate agrees not to make any representations and/or give any warranties and/or guarantees relating to the Wordtracker’s Products and/or their efficacy other than those given by Wordtracker and/or as otherwise approved by us in writing. 9. Obligations Regarding Your Site You are solely responsible for the development, operation, and maintenance of Your Site and for all materials and content that appear on Your Site. Wordtracker will not be responsible for and disclaims all liability for any of the foregoing. You agree to indemnify and hold Wordtracker harmless from all damages, claims, fees (including attorneys' fees), and expenses arising from or relating to the development, operation, or maintenance of Your Site and any content displayed on Your Site including but not limited to any claim that content displayed on Your Site infringes or misappropriates any intellectual property right of a third party. 10. Term of the Agreement The term of this Agreement begins upon Wordtracker's acceptance of your application for the Affiliate Program, and ends when terminated by either party in accordance with this Agreement. You may terminate this Agreement at any time by giving written notice of termination. Wordtracker may terminate inactive accounts without notice, accounts may be deemed inactive due to an inactive email or site. Closed accounts may be reviewed upon request. In addition, this Agreement will terminate immediately upon any breach of this Agreement by you. Upon termination of this Agreement, Affiliates must immediately remove all Links from their Properties. Affiliates will not accrue any Commission for sales or other actions that took place after termination. Wordtracker will pay you any commissions you might have earned before termination 45 days after the end of the calendar quarter in which this Agreement has been terminated. 11. Modification Wordtracker may modify any of the terms and conditions contained in this Agreement and will notify you of the modification via email, and a change notice will be posted on the Wordtracker Site. If a modification is unacceptable, you may terminate this Agreement by giving notice of termination to Wordtracker and following the procedures in Section 10 (Term of Agreement). If you do not give Wordtracker notice of termination in accordance with Section 10 continue to display the Links on Your Site, then you will be deemed to have accepted the modifications. 12. Relationship of the Parties You and Wordtracker are independent contractors, and nothing in this Agreement creates any partnership, joint venture, agency, franchise, sales representative, or employment relationship between you and Wordtracker. You understand that you do not have authority to make or accept any offers or make any representations on behalf of Wordtracker. You may not make any statement, whether on Your Site or otherwise, that would contradict anything in this section. 13. Confidentiality During the term of this Agreement, you may have access to certain Confidential Information (as defined below) of Wordtracker. You agree (i)not to disclose any Confidential Information to any third parties (other than your employees and/or consultants reasonably requiring such Confidential Information for 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 Wordtracker, (ii) not to use any Confidential Information for any purposes except carrying out your rights and responsibilities under this Agreement, and (iii) 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. 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 Wordtracker (including, but not limited to, marketing plans, customer and supplier lists and product data) excluding any such information which at the relevant time (i) is known to the public (through no act or omission of the Affiliate in violation of this Agreement), (ii) is lawfully acquired by the Affiliate from an independent source having no obligation to Wordtracker maintain the confidentiality of such information or (iii) was known to the Affiliate prior to its disclosure under this Agreement. 14. Disclaimers EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, WORDTRACKER MAKES NO, AND EXPRESSLY DISCLAIMS ANY, REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE AFFILIATE PROGRAM, THE LINKS, TRADEMARKS, THE WORDTRACKER SITES, THE WORDTRACKER SERVICE, AND ANY OTHER SERVICE PROVIDED BY WORDTRACKER 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 NONINFRINGEMENT AND IMPLIED WARRANTIES ARISING FROM A COURSE OF DEALING OR COURSE OF PERFORMANCE OR TRADE USAGE. WORDTRACKER EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY REGARDING THE PERFORMANCE, AVAILABILITY, FUNCTIONALITY, OR ANY OTHER ASPECT OF THE WORDTRACKER SITE. 15. Limitation of Liability Wordtracker shall have no Liability to the Affiliate for any losses whether direct, indirect, special, incidental or consequential, including: loss of profits and/or damage to goodwill; pure economic and/or other similar losses; special damages; aggravated, punitive and/or exemplary damages; loss and/or corruption of data; and/or business interruption, loss of business, loss of contracts, loss of opportunity and/or production. Further, Wordtracker’s aggregate liability for direct damages under this agreement will not exceed the amount of the total referral fees paid or payable to you under this agreement. Wordtracker makes no express or implied representations or warranties regarding the Wordtracker Website or its availability or functionality and all implied warranties of merchantability and/or fitness for purpose are expressly disclaimed and excluded. The Affiliate accepts that the operation of the Affiliate Program, Affiliate Links or the Wordtracker Site(s) may not be completely free of interruption, errors or omissions and Wordtracker are not liable for the consequences of any interruptions or errors in the performance or content of the Wordtracker Website or Links. 16. Miscellaneous Provisions This Agreement will be governed by the laws of the United Kingdom, without reference to rules governing choice of laws. Any action relating to this Agreement must be brought in the county courts located in London, United Kingdom 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 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 constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement. This Agreement represents the entire agreement between us and you with respect to the Wordtracker Affiliate Program, and shall supersede all prior agreements and communications of the parties, oral or written. This Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective permitted successors and permitted assigns. Wordtracker's failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of Wordtracker's right to subsequently enforce those provisions, or any other provisions of this Agreement. The parties acknowledge that any breach for which money damages will not be an adequate remedy and Wordtracker may, in addition to any other legal or equitable remedies, seek an injunction or similar equitable relief against such breach or threatened breach without the necessity of posting any bond. 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 Wordtracker 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. In no event shall Wordtracker have any liability for any delayed performance or nonperformance by Wordtracker which results, in whole or in part, directly or indirectly, from any cause beyond the reasonable control of Wordtracker. The provisions Sections 5, 9, 10, 13, 14, 15 and this Section 16 shall survive termination or expiration of the Agreement.