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Voicent Affiliate Program Agreement
This Agreement contains the complete terms and conditions that apply to an individual's or entity's participation in the Voicent Communications, Inc. Affiliate Program (the "Program"). As used in this Agreement, "we", "us", or "our" means Voicent Communications, Inc., and "you" means the applicant. "Voicent.com Site" means the site that has its primary home page identified by the URL www.voicent.com, and "site" means a World Wide Web site. "Your site" means any site that you will link to the voicent.com Site (and which you will identify in your Program application). 1. Enrollment in the Program To begin the enrollment process, you will submit a complete Program application via the voicent.com Site. We will evaluate your application in good faith and will notify you of its acceptance or rejection. We may reject your application if we determine (in our sole discretion) that your site is unsuitable for the Program. Unsuitable sites include, but are not limited to, those that:
By participating in the Program you agree that you will not engage in any such activities. If we reject your application, you are welcome to reapply to the Program at any time. You should also note that if we accept your application and your site is thereafter determined (in our sole discretion) to be unsuitable for the Program, we may terminate this Agreement. Participation in the Program is limited to parties that lawfully can enter into and form contracts under applicable law. For example, minors are not allowed to participate in the Program. 2. Links on Your Site Once you have been notified that your site has been accepted into the Program, we grant you a revocable, non-exclusive, worldwide, royalty-free license for the duration of the term of this Agreement, solely for purposes of facilitating referrals from your site to the voicent.com Site, to provide on your site one or more of the following types of links to the voicent.com Site: Product Links: You may select one or more Products to list on your site. A "Product" is any product listed on the voicent.com Site that is fulfilled by us or on our behalf. For each selected Product, you will display on your site a short description, review, or other reference. You will be responsible for the content, style, and placement of these references. You will provide a Special Link (as defined below) from each Product reference on your site to the corresponding voicent.com Site online catalog entry. Each such link will connect directly to a single item in our online catalog. You may add or delete Products (and related links) from your site at any time without our approval. Special Links that individually link to specific Products as described above are referred to as "Product Links." General Link to Voicent.com Site Home Page: You may provide a general link on your site to the home page of the Voicent.com Site. Any Page Link: You may provide a link on your site that will link to any particular page on the voicent.com Site, provided that you properly use the special link formats provided on the voicent.com Site as part of the Program to create such link. We will provide you with guidelines and graphical artwork to use in linking to the voicent.com Site home page. To permit accurate tracking, reporting, and referral fee accrual, we will provide you with special "tagged" link formats to be used in all links between your site and the voicent.com Site (and for purposes of this Agreement, the browser window described above that opens upon a user's clicking on a Quick-Click link is deemed a part of the voicent.com Site, and any Quick-Click link is deemed a link between your site and the voicent.com Site). You must ensure that each of the links between your site and the voicent.com Site properly utilizes such special link formats. Links to the voicent.com Site placed on your site pursuant to this Agreement and which properly utilize such special link formats are referred to as "Special Links." You will earn referral fees only with respect to activity on the voicent.com Site occurring directly through Special Links; we will not be liable to you with respect to any failure by you to use Special Links, including to the extent that such failure may result in any reduction of amounts that would otherwise be paid to you pursuant to this Agreement. You acknowledge that, by participating in the Affiliate Program and placing any of the above links within your site, we may receive information from or about visitors to your site or communications between your site and those visitors. Your participation in the Program constitutes your specific and unconditional consent to and authorization for our access to, receipt, storage, use, and disclosure of any and all such information, consistent with the policies and procedures set forth in the Privacy Notice on the voicent.com Site. Except for the license granted under this Section 2, you do not obtain any rights under this Agreement in any intellectual property, including, without limitation, any intellectual property with respect to the Special Links, link formats, technical specifications, guidelines or graphical artwork referenced above, or with respect to the voicent.com domain name. You also acknowledge that we may crawl or otherwise monitor your site for the purpose of ensuring the quality and reliability of Special Links on your site (for example, to detect links that are broken or non-functional, links to products that are out of stock or otherwise unavailable, etc.). Therefore, you agree that we may take such actions and that you will not seek to block or otherwise interfere with such crawling or monitoring (and that we and our corporate affiliates may use technical means to overcome any methods used on your site to block or interfere with such crawling or monitoring). You also acknowledge that as a participant in the Program, we may from time to time send you email updates about the Program. By participating in the Program, you consent to our sending you these email updates. Further, you acknowledge and agree that you will: (a) use any data, images, text, or other information obtained by you from us or the voicent.com Site in connection with this Agreement ("Content") only in a lawful manner and only in accordance with the terms of this Agreement; (b) not modify or alter any Content that consists of a graphic image, other than to resize it; (c) not edit any Content that consists of text, other than to shorten its length; (d) not sell, redistribute, sublicense or transfer any Content; (e) not use any Content in a manner intended to send sales to any site other than the voicent.com Site; and (h) promptly delete any Content that is no longer displayed on the voicent.com Site or that we notify you is no longer available for your use. 3. Order Processing We will process Product orders placed by customers who follow Special Links from your site to the voicent.com Site. We reserve the right to reject orders that do not comply with any requirements that we periodically may establish. We will be responsible for all aspects of order processing and fulfillment. Among other things, we will prepare order forms, process payments, cancellations, and returns, and handle customer service. We will track sales made to customers who purchase Products by using Special Links from your site to the voicent.com Site and will make available to you reports summarizing this sales activity. The form, content, and frequency of the reports may vary from time to time in our discretion. 4. Referral Fees We will pay you (in accordance with Sections 5 and 6 below) referral fees on certain Product sales to third parties. For a Product sale to be eligible to earn a referral fee, the customer must click-through a Special Link from your site to the voicent.com Site during a session. The session ends upon one of the following events: (a) 90 days elapses from the customer's initial click-through, (b) the customer orders the Product, or (c) the customer follows a third party's Special Link. We will only pay referral fees on eligible Products after order, payment and shipping have occurred. To permit accurate tracking, reporting and fee accrual, you must ensure that the Special Links between your site and the voicent.com Site are properly formatted. We will not be liable for paying referral fees on purchases that are not correctly tracked and reported because the links between your site and the voicent.com Site are not properly formatted. In addition, you may not: (a) in any way modify, redirect, suppress, or substitute the operation of any button, link, or other interactive feature of the voicent.com Site; (b) take any action that could reasonably cause any customer confusion as to our relationship with you, or as to the site on which any functions or transactions (e.g., search, order, browse, and so on) are occurring; (c) other than providing Special Links on your site in accordance with this Agreement, post or serve any advertisements or promotional content promoting the voicent.com Site or otherwise around or in conjunction with the display of the voicent.com Site (e.g., through any "framing" technique or technology or pop-up or pop-under windows), or assist, authorize, or encourage any third party to take any such action; (d) attempt to intercept or re-direct (including, without limitation, via user-installed software) traffic from or on, or divert referral fees from, any web site that participates in the Program; From time to time we may request that you cause any applicable Web search provider to exclude Proprietary Terms from keywords used to display your advertising content in association with search results, assuming the provider of such Web search engine offers such exclusion capabilities. If we determine, in our sole discretion, that you have engaged in any of the foregoing activities or, as the case may be, refused promptly to comply with a request from us to exclude Proprietary Terms from any keyword as mentioned above, we may (without limiting any other rights or remedies available to us) withhold any referral fees otherwise payable to you under this Agreement and/or terminate this Agreement. 5. Referral Fee Schedule During each calendar quarter, for Qualifying Products sold during sessions initiated through Special Links on your site, you will earn (subject to the other terms of this Agreement) referral fees in accordance with the Fee Structure described below. Fee Structure. Subject to the other terms of this Agreement, you will earn 10% of "Qualifying Revenues" (revenues derived by us from sales of Qualifying Product units during sessions initiated through Special Links on your site, excluding costs for shipping, handling, gift-wrapping, taxes separately stated and charged to the customer, service charges, credit card processing fees, returns and bad debt). The current qualified products are: Voicent AutoReminder Standard Version 6. Referral Fee Payment We will pay you referral fees on a quarterly basis. We will accrue and withhold referral fees until the total amount is at least $100. Approximately 30 days following the end of each calendar quarter, we will send you a check for the referral fees earned. We are obligated by U.S. federal law to obtain tax information from Program participants who are U.S. citizens, U.S. residents or U.S. corporations and from Program participants who are not U.S. citizens or residents but whose businesses are taxable in the U.S. If we believe you are a Program participant from whom we are obligated to obtain tax information and you do not provide this information to us after we have requested it, we may withhold your referral fee payments until you provide this information or otherwise satisfy us that you are not a person from whom we are required to obtain tax information. 7. Policies and Pricing Customers who buy products or submit Card applications through this Program will be deemed to be our customers. Accordingly, all of our rules, policies, and operating procedures concerning customer orders, customer service, and product sales will apply to those customers. We may change our policies and operating procedures at any time. For example, we will determine the prices to be charged for products sold under this Program in accordance with our own pricing policies. In addition, if you choose to display prices for any Product on your site in any "comparison" format (including through the use of any price-comparison tool or engine) together with prices for the same or similar products offered through any web site or other outlet other than the voicent.com Site, you must display both the lowest "new" price on the voicent.com Site. You may not otherwise include price information in your Product descriptions. We will use commercially reasonable efforts to present accurate information, but we cannot guarantee the availability or price of any particular product. 8. Responsibility for Your Site You will be solely responsible for the development, operation, and maintenance of your site and for all materials that appear on your site. For example, you will be solely responsible for:
We disclaim all liability for these matters. Further, you will indemnify and hold us harmless from all claims, damages, and expenses (including, without limitation, attorneys' fees) relating to the development, operation, maintenance, and contents of your site. 9. Compliance with Laws As a condition to your participation in the Program, you agree that while you are a Program participant you will comply with all laws, ordinances, rules, regulations, orders, licenses, permits, judgments, decisions or other requirements of any governmental authority that has jurisdiction over you, whether those laws, etc. are now in effect or later come into effect during the time you are a Program participant. Without limiting the foregoing obligation, you agree that as a condition of your participation in the Program you will comply with all applicable laws (federal, state or otherwise) that govern marketing email, including without limitation, the CAN-SPAM Act of 2003 and all other anti-spam laws. 10. Spyware. 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 program and will forfeit all commissions 11. Term of the Agreement The term of this Agreement will begin upon our acceptance of your Program application and will end when terminated by either party. Either you or we may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination. Upon the termination of this Agreement for any reason, you will immediately cease use of, and remove from your site, all links to the voicent.com Site, and all of our trademarks, trade dress, and logos, and all other materials provided by or on behalf of us to you pursuant hereto or in connection with the Program. You are eligible to earn referral fees only on sales of Qualifying Products that occur during the term, and referral fees earned through the date of termination will remain payable only if the related orders are not canceled or returned. We may withhold your final payment for a reasonable time to ensure that the correct amount is paid. 12. 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 agreement on the voicent.com Site. Modifications may include, for example, changes in the scope of available referral fees, referral fee schedules, payment procedures, and Program rules. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING OUR POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON THE VOICENT.COM SITE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE. 13. 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 site or otherwise, that reasonably would contradict anything in this Section. 14. 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 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 Program will not exceed the total referral fees paid or payable to you under this Agreement. 15. Disclaimers We make no express or implied warranties or representations with respect to the Program or any products sold through the Program (including, without limitation, warranties of fitness, merchantability, noninfringement, or any implied warranties arising out of a course of performance, dealing, or trade usage). In addition, we make no representation that the operation of the vpocemt.com Site will be uninterrupted or error-free, and we will not be liable for the consequences of any interruptions or errors. 16. 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 WEB SITES THAT ARE SIMILAR TO OR COMPETE WITH YOUR WEB SITE. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT. 17. Arbitration Any dispute relating in any way to this Agreement (including any actual or alleged breach hereof), any transactions or activities under this Agreement or your relationship with us or any of our affiliates shall be submitted to confidential arbitration in Los Altos, California, except that, to the extent you have in any manner violated or threatened to violate our intellectual property rights, we may seek injunctive or other appropriate relief in any state or federal court in the state of California (and you consent to non-exclusive jurisdiction and venue in such courts) or any other court of competent jurisdiction. Arbitration under this agreement shall be conducted under the rules then prevailing of the American Arbitration Association. The arbitrator's award shall be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under this Agreement shall be joined to an arbitration involving any other party subject to this Agreement, whether through class arbitration proceedings or otherwise. 18. 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. 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 constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement.
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