Smartguy.com.com Affiliate Program - Terms & Conditions
PLEASE READ THIS AGREEMENT CAREFULLY. BY JOINING THE SMARTGUY.COM AFFILIATE PROGRAM YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND ALL TERMS AND CONDITIONS INCORPORATED BY REFERENCE IN THIS AGREEMENT, INCLUDING SMARTGUY.COM'S PRIVACY POLICY & ACCEPTABLE USAGE POLICY. YOUR CONTINUED PARTICIPATION OF THIS PROGRAM ALSO CONSTITUTES ACCEPTANCE OF THIS AGREEMENT.
These Terms and Conditions govern participation in the Smartguy.com Affiliate Program (hereinafter, either the 'Smartguy.com Affiliate Program' or the 'Program'), which is offered by Cristal Solutions, Inc. DBA SmartGuy, its subsidiary corporations, affiliate corporations, successors and assigns (hereinafter collectively referred to as 'Smartguy.com'), which operates web sites accessible through www.Smartguy.com and affiliates.Smartguy.com, among other URLs (collectively referred to as the 'Smartguy.com Network'). The Program is offered to individuals or entities operating other web sites subject to these Terms and Conditions. The term 'Affiliate' shall refer to any individual or entity who joins the Smartguy.com Affiliate Program and accepts these Terms and Conditions by changing the "I Disagree" drop-down menu to "I Agree" at http://affiliates.Smartguy.com to subsequently create an affiliate account and everybody else referring sales to Smartguy.com in return for compensation. Smartguy.com may amend or otherwise modify this Agreement. Affiliate agrees that Smartguy.com's posting of any amendments or modifications to this website (http://www.Smartguy.com and http://www.Smartguy.com) shall constitute adequate notice to Affiliate and that Affiliate shall periodically consult this web page for any changes or amendments to this Agreement. Smartguy.com may, but is under no obligation to, provide additional notice of any amendment, modification or update of this Agreement via e-mail to Affiliate. If any material modification to this Agreement is unacceptable to Affiliate it shall be Affiliate's responsibility to terminate their subscription as provided in Section 8 of this Agreement. If Affiliate does not terminate the Agreement within 10 days of the material modification then Affiliate's continued participation in the Smartguy.com Affiliate Program will mean that Affiliate has accepted the amended or modified Agreement.
1.0 SMARTGUY.COM AFFILIATE PROGRAM
The Smartguy.com Affiliate Program enables users to add certain links and promotional features to their web sites for which they will be eligible for compensation in accordance with, and subject to, these Terms and Conditions. Smartguy.com reserves the right, in its sole discretion, to alter the Program at any time for any reason or for no reason at all. Smartguy.com reserves the right, in its sole discretion, to terminate the Program at any time for any reason or for no reason at all.
2.0 REGISTRATION AND ACCEPTANCE
2.1 Age of Consent.
By registering for the Program and accepting these Terms and Conditions, Affiliate represents and warrants that he or she is of the legal age of consent in all applicable jurisdictions and, in any event, is at least 18 years of age.
2.2 Authority to Participate.
By registering for the Program and accepting these Terms and Conditions, Affiliate represents and warrants that he or she can lawfully bind him or herself to these Terms and Conditions and can lawfully participate in the Program in the jurisdiction(s) where Affiliate is located. No Affiliate may participate in the Program where doing so would be prohibited by any law or regulation having the force of law applicable to Affiliate.
2.3 Content of Affiliates Web Site(s).
By registering for the Program and accepting these Terms and Conditions, Affiliate represents and warrants that his/her web site(s) does not and will not contain, display, promote or include obscene, indecent, violent, discriminatory, illegal, pornographic, or adult content, including, but not limited to, text, graphics and images. By registering for the Program and accepting these Terms and Conditions, Affiliate represents and warrants that his/her web site(s) contains and displays content (including, but not limited to, text, graphics and images) in addition to the links, promotional materials, and branding made available pursuant to the Program.
2.4 Information Submitted by Affiliate.
By accepting these Terms and Conditions, Affiliate represents and warrants: (i) that all information submitted by Affiliate in registering for the Program is true, accurate, current, and complete; and (ii) that Affiliate shall maintain and update information submitted in registering for the Program in order to keep it true, accurate, current and complete at all times. If any information that Affiliate submits in the registration process is untrue, inaccurate, not current or incomplete, Smartguy.com shall have the right to terminate Affiliate's participation in the Program.
2.5 Binding Acceptance.
In order to participate in the Program, Affiliate will be required to enter certain registration information and to change the "I Disagree" drop-down menu to "I Agree" at http://affiliates.Smartguy.comi and subsequently create an affiliate account. BY PROVIDING REGISTRATION INFORMATION AND CHANGING THE DROP DOWN MENU TO "I AGREE", AFFILIATE AGREES TO BE BOUND BY THESE TERMS AND CONDITIONS. If these Terms and Conditions or any future amendment or modification thereto are unacceptable to Affiliate, Affiliate may cancel its participation in the Program pursuant to Section 8.0 regarding termination.
2.6 Participation by Nonresident Aliens and Other Foreign Persons.
If you are a nonresident alien or other foreign person (such as a foreign corporation), you will be entitled to participate in the Program only if the commissions you derive from participation in the Program are not effectively connected with the conduct of a trade or business in the United States.
2.7 Modification and Amendment of Terms and Conditions.
Smartguy.com may amend or otherwise modify all or part of these Terms and Conditions. Affiliate agrees that Smartguy.com's posting of any amendments or modifications to this website (http://www.Smartguy.com) shall constitute adequate notice to Affiliate and that Affiliate shall periodically consult this web page for any changes or amendments to these Terms and Conditions. Smartguy.com may, but is under no obligation to, provide additional notice of any amendment, modification or update of these Terms and Conditions via e-mail to Affiliate. If any material modification to these Terms and Conditions is unacceptable to Affiliate it shall be Affiliate's responsibility to terminate their affiliation as provided in Section8 of this Agreement. If Affiliate does not terminate this Agreement within 10 days of the material modification then Affiliate's continued affiliation will mean that Affiliate has accepted the amended or modified Terms and Conditions of this Agreement.
3.0 AFFILIATE'S OBLIGATIONS
3.1 Responsibility for Web Sites.
Affiliate acknowledges and agrees that he or she shall be solely responsible for Affiliate's web site(s) and all content, products, services, and/or links displayed on or made available through or in connection with such web site(s). Affiliate shall especially not publish any content harming or otherwise damaging Smartguy.com's reputation and/or causing our users to be dissatisfied with our products and services.
3.2 Minimum Activity Requirement.
Affiliate acknowledges and agrees that Smartguy.com's Affiliate Program is not designed for Affiliates to receive commissions for their own hosting account. Affiliate is required to promote Smartguy.com's products and services and deliver at least one qualified sale or referral resulting in a qualified sale per calendar quarter to remain an active Affiliate status with Smartguy.com. Affiliates, who do not meet said minimum activity requirement may forfeit their Affiliate account as well as any unpaid commissions at Smartguy.com's sole discretion.
3.3 Use of Links, Promotional Materials, and Branding.
Affiliate agrees that he or she will only use the links, promotional materials, and branding made available through the Program in the precise manner and mode by which such links, promotional materials, and branding are made available pursuant to the Program. Affiliate further agrees that he or she will only use such links, promotional materials, and branding for the purpose of establishing links to the Smartguy.com web site, referring users to the services made available on the Smartguy.com web site, and promoting the Smartguy.com as an entity as well as Smartguy.com's services. Affiliate further agrees that he or she will only use the links, promotional materials, and branding made available pursuant to the Program as additions to the content displayed on his/her web site(s) and that such links, promotional materials, and branding shall not be the sole content on his/her web site(s). Affiliate agrees that he or she will always identify himself or herself as an Affiliate when promoting Smartguy.com's services (i.e. through Google Ad Words or Overture search engine campaigns) by putting the word 'Affiliate' in such ads to avoid confusion.
3.4 Prohibited Conduct. Affiliate represents and warrants as follows:
Affiliate is prohibited from using language in advertising campaigns such as 'Official Site', 'Main Site', Official Representative', 'Official Anything' or any other language that might confuse viewer of such an advertisement. Smartguy.com reserves the right in its sole discretion to determine what language or action might confuse viewers.
Affiliate will not alter the links, promotional materials, and branding made available pursuant to the Program and will only use such links, promotional materials, and branding in the exact shape, colors, design, and configuration in which such items are made available pursuant to the Program.
Affiliate will display all links, promotional materials, and branding made available pursuant to the Program alone, with reasonable spacing between each side of such item and other graphic or textual elements.
Affiliate will not use any links, promotional materials, and branding of Smartguy.com other than those made available through the Program.
Affiliate will not claim or hold itself out as claiming any sponsorship by, endorsement by, or affiliation with Smartguy.com or its parent corporation, subsidiary corporations, successors, and assigns.
Affiliate will not use the word 'Smartguy.com' or any variation thereof in its domain name.
Affiliate will not use any computer program, robot, or other device, which causes Smartguy.com to record a click-through or sale where no such click-through or sale has occurred.
Affiliate will not violate or encourage any third party or entity to violate any law or regulation having the force of law, including, but not limited to, laws prohibiting the sale of certain goods and services, laws prohibiting the export of certain goods or services, and laws prohibiting the obscenity.
Affiliate will not defame, impersonate or invade the privacy of any third party or entity or encourage any third party or entity to do the same.
Affiliate will not engage in any conduct that infringes the rights of any third party, including, but not limited to, the intellectual property, business, contractual, or fiduciary rights of others or encourage any third party or entity to do the same.
Affiliate will not place links, promotional materials or branding made available through this Program on a web site(s) that violates or encourages others to violate any applicable law or regulation having the force of law, or that includes offensive or hate content, or that promotes discrimination based on race, sex, religion, sexual orientation, nationality, disability, or age.
Affiliate will ensure that its web site(s) will not inhibit a user's ability to return to the Smartguy.com Network.
3.5 Audit.
Smartguy.com shall make available online to Affiliate activity reports from which the number of Smartguy.com sales made by visitors to Affiliate are viewable.
3.6 Email and Phone Contact.
Affiliate hereby permits Smartguy.com to contact Affiliate through email and phone and at Affiliate's mailing address, provided to Smartguy.com by Affiliate, for the duration of this agreement. Due to Smartguy.com's need to communicate with its Affiliates, Affiliate can not 'opt-out' of Smartguy.com's Affiliate mailing lists or phone list unless Affiliate terminates it's entire Affiliate relationship with Smartguy.com, per Section 8 of this Agreement.
4.0 AFFILIATE'S AUTHORITY
Affiliate represents and warrants as follows:
Affiliate has full power and authority under all applicable laws and regulations having the force of law to accept and by bound by these Terms and Conditions.
Affiliate has full power and authority under all applicable laws and regulations having the force of law to promote Smartguy.com by displaying the links, promotional materials, and branding offered through the Program, including but not limited to holding all necessary licenses, consents, and approvals from all private and governmental entities in all applicable jurisdictions necessary to display the links, promotional materials, and branding.
Affiliate has full power and authority under all applicable laws and regulations having the force of law to receive compensation in accordance with these Terms and Conditions for displaying the links, promotional materials, and branding offered through the Program, including but not limited to holding all necessary licenses, consents, and approvals from all private and governmental entities in all applicable jurisdictions necessary to display the links, promotional materials, and branding
Affiliate has full power and authority under all applicable laws and regulations having the force of law to copy and display the materials (including but not limited to text, graphics and images) used or displayed at Affiliate's web site(s), including but not limited to holding all necessary licenses with respect to materials owned by third parties.
5.0 PROPRIETARY RIGHTS
5.1 License.
Affiliate is hereby granted a non-exclusive, non-transferable license to copy onto and display from Affiliate's web site(s) the links, promotional materials, and branding made available through the Program in accordance with, and subject to, these Terms and Conditions during such time as Affiliate is eligible to participate, and is, in fact, participating, in the Program. Except as expressly stated herein, Affiliate shall not make any other use of the links, promotional materials, and branding made available through the Program.
5.2 Smartguy.com Intellectual Property.
Affiliate acknowledges and agrees that the content available through the Program, including, but not limited to, links, promotional materials, and branding, and the content and Services available through the Smartguy.com Network are protected by Smartguy.com's copyrights, trademarks, patents, or other proprietary rights and laws, and may not be used in any manner other than as specified in Section 5.1 above.
5.3 Unauthorized Access.
Affiliate shall not attempt directly or indirectly to gain unauthorized access to any servers controlled, in whole or in part, by Smartguy.com or to any servers controlled, in whole or in part by any other third party that may provide services in connection with the Program.
5.4 Notifications of Intellectual Property Infringement.
Smartguy.com processes, investigates, and responds to notifications of alleged infringement in accordance with the Digital Millennium Copyright Act ('DMCA') and other applicable intellectual property laws. Upon receipt of notices complying or substantially complying with the DMCA, Smartguy.com will act expeditiously to remove or disable access to any material claimed to be infringing or claimed to be the subject of infringing activity and will act expeditiously to remove or disable access to any reference or link to material or activity that is claimed to be infringing. Smartguy.com will terminate access for subscribers and account holders who are repeat infringers. Notices of claimed infringement should be directed to:
The words 'Notice of Infringement' should be put in the subject line of all such notifications. If Smartguy.com removes or disables access to any user's material that is claimed to be infringing, Smartguy.com may attempt to contact the user in order to give the user an opportunity to respond to the notification, although Smartguy.com makes no promise to do so. Any and all counter notifications submitted by the user will be furnished to the complaining party. Smartguy.com will give the complaining party an opportunity to seek judicial relief in accordance with the DMCA before Smartguy.com replaces or restores access to any material as a result of any counter notification. Smartguy.com will respond to all other notifications of claimed infringement of intellectual property rights in accordance with applicable laws.
5.5 Notifications of Claimed Infringement by Affiliate.
Affiliate agrees to assume sole responsibility for compliance by Affiliate and Affiliate's web site(s) with all applicable intellectual property laws and all other laws. In the event that Smartguy.com should receive any notification of claimed infringement by Affiliate, Affiliate agrees to cooperate with Smartguy.com in expeditiously responding to such notification and resolving any claim of infringement.
6.0 COMPENSATION
6.1 Commissions.
Smartguy.com shall compensate each Affiliate in accordance with Smartguy.com's then current commission schedulefor each verified signup by a visitor to Affiliate, resulting in a new Smartguy.com customer who remains in good standing for a period of at least 45 days after signup. If you are a United States citizen or resident or other non-foreign person, participation in the Program and payment of commissions is conditioned upon your satisfactory completion of Internal Revenue Service Form W-9 and any other tax forms that Smartguy.com, in its sole discretion, determines to be necessary or appropriate. If you are a nonresident alien of the United States or other foreign person (such as a foreign corporation), participation in the Program and payment of commissions is conditioned upon your satisfactory completion of a Certification Form, the form of which shall be determined by Smartguy.com, by which you certify that commissions you derive from participation in the Program are not effectively connected with the conduct of a trade or business in the United States. If your commissions become effectively connected with the conduct of a trade or business in the United States, you will immediately become ineligible for participation in the Program and must notify Smartguy.com of this change in status within 30 days of the change. If no date of change is given in the notice, the change will be deemed to have occurred 30 days prior to receipt by Smartguy.com of the notice. Nonresident aliens participating in the Program who become a United States citizen or resident will immediately become ineligible for participation in the Program and must notify Smartguy.com of their change in status within 30 days of the change. If no date of change is given in the notice, the change will be deemed to have occurred 30 days prior to receipt by Smartguy.com of the notice. A former nonresident alien will thereafter become entitled to re-enter the Program upon satisfactory completion of Internal Revenue Service Form W-9 and any other tax forms that Smartguy.com, in its sole discretion, determines to be necessary or appropriate. It is each Affiliate's (and not Smartguy.com's) obligation to ensure that the Affiliate obtains, completes in full and provides Smartguy.com with the necessary and appropriate Internal Revenue Service or other tax forms so that Smartguy.com may pay such Affiliate any commissions due Affiliate. Smartguy.com shall not make any commission payments to an Affiliate unless and until the Affiliate provides Smartguy.com with the necessary and appropriate Internal Revenue Service or other tax forms. In the event that Smartguy.com makes payments to an Affiliate without having received all proper tax forms, such payments shall be deemed refundable advances and Smartguy.com has the right to request from the Affiliate in violation to pay back these advances within 30 days of being notified by Smartguy.com. Click here for Internal Revenue Service Form W-9. Click here for the CERTIFICATION Form. Please print, complete in full, and send to Smartguy.com at the following address the necessary forms: Smartguy.com.com, Affiliate Administration, 16133 Ventura Boulevard suite 700, Encino, CA 9136. PLEASE WRITE THE URL OF YOUR SITE AND YOUR CONTACT EMAIL ON THE TOP OF THE W-9 OR CERTIFICATION FORM. IN ORDER FOR AFFILIATE TO BE ENTITLED TO AND PAID ANY COMMISSIONS FOR ACTIVITIES IN A CALENDAR YEAR, SMARTGUY.COM REQUIRES FROM AFFILIATE THE NECESSARY TAX FORMS WITHIN THIRTY (30) DAYS FOLLOWING THE END OF THE CALENDAR YEAR IN WHICH SUCH COMMISSIONS WERE EARNED. IF SMARTGUY.COM DOES NOT RECEIVE THE NECESSARY TAX FORMS BY THE AFOREMENTIONED DEADLINE, AFFILIATE WILL NO LONGER BE ENTITLED TO RECEIVE ANY COMMISSIONS FOR SUCH CALENDAR YEAR AND ALREADY PAID COMMISSIONS ARE CONSIDERED FULLY REFUNDABLE ADVANCES. FOR EXAMPLE, IF AFFILIATE OTHERWISE WOULD HAVE BEEN ENTITLED TO RECEIVE 0.00 IN COMMISSIONS DURING THE CALENDAR YEAR 2008, BUT FAILED TO PROVIDE SMARTGUY.COM WITH THE NECESSARY TAX FORMS BY JANUARY 31, 2009, AFFILIATE WILL NO LONGER BE ENTITLED TO RECEIVE THE 0.00 AND, AS OF FEBRUARY 1, 2009, HIS/HER COMMISSION AMOUNT WILL BE ZERO. IF AFFILIATE ALREADY RECEIVED ANY COMMISSION PAYMENT, SUCH PAYMENT WILL HAVE TO BE REFUNDED BY AFFILIATE TO SMARTGUY.COM. Payments to Affiliate shall be sent to the address provided on the tax forms submitted by Affiliate to Smartguy.com.
6.2 Time of Payments and Minimum Commissions.
Commissions shall be paid to Affiliate once per month within 45 days after close of a calendar month for all commissions earned in the previous month (i.e. all commissions earned between June 1 and June 30 will be paid on or before August 15); provided that Affiliate accumulates at least $20 in total commissions for a given month within a calendar year. No payment will be made for accumulated amounts under $20. Any unpaid commissions earned in one month shall be paid in the next month in which the total unpaid commissions earned by Affiliate exceeds $20. Smartguy.com reserves the right to reset all Affiliate accounts that have not accumulated more than $20 in commissions by December 31 of each calendar year to zero on January 1. Smartguy.com reserves the right to suspend payment of Affiliate commission indefinitely, if it suspect improper activity or a potential breach of any of the terms in this Agreement. Smartguy.com reserves the right to deduct from Affiliate's commission payment any and all commissions corresponding to any fraudulent, questionable, and cancelled Smartguy.com purchases. Where no subsequent commission is due and owing, Smartguy.com will send Affiliate a bill for the balance of such refunded sale upon termination of the program or termination of Customer.
6.3 Form of Payment.
Payments shall be processed via Paypal and require a minimum accumulated commission due of more than $20.As a result, please provide us the email address you've registered with PayPal for which you'd like to receive payment.
6.4 Forfeiture of Accrued Commissions in Cases of Breach.
Any Affiliate who violates these Terms and Conditions or terms of use at any of our sites on the SmartGuy.com Network or affiliated websiteswill immediately forfeit any right to any and all accrued commissions.
6.5 Liability for Damages due to Certain Activities.
In the event of any criminal, illegal, unethical, and/or any activity which might damage Smartguy.com's reputation during the term of this agreement and within twelve (12) months after such termination date, where Smartguy.com in its sole discretion shall determine what it considers unethical or reputation-damaging, Affiliate hereby agrees irrevocable to be liable to Smartguy.com for any damages said activities may cause. Due to the fact that actual damages are difficult to ascertain Affiliate hereby understands, consents, and agrees that Smartguy.com may demand and receive full and complete repayment of any and all commissions paid out to Affiliate since establishing such relationship with Affiliate as liquidated damages or the sum of 1,000, whichever is greater.
6.6 Waiver.
Affiliate expressly waives any statutory or other legal protection in conflict with the provisions of this Section 6.
6.7 Disputes.
Affiliate has access to Smartguy.com's real-time Affiliate Program statistics and activity and specifically agrees to file any tracking or commission disputes as well as any other disputes and discrepancies within 45 days after the end of the month in which the sale or event that is disputed occurred. Disputes filed after 45 days of the date on which the sale occurred will not be accepted by Smartguy.com and Affiliate forfeits forever any rights to a potential claim.
7.0 CONFIDENTIALITY
The term 'Confidential Information' means any information or material, which is proprietary to Company, whether or not owned or developed by Company, which is not generally known other than by Company, and which Affiliate may obtain through any direct or indirect contact with Company or Company's customers such as, but not limited to business records and plans, financial statements, customer lists and records, any customer correspondence concerning Smartguy.com, credit card information, technical information, pricing structure, source code and/or object code, copyrights and intellectual property, competitive information, and other proprietary information. Affiliate represents that it will protect any confidential material and information, which may be disclosed between Smartguy.com, Smartguy.com's customers and the Affiliate at all times. Affiliate understands and acknowledges that the Confidential Information has been developed or obtained by Smartguy.com by the investment of significant time, effort and expense, and that the Confidential Information is a valuable, special and unique asset of Smartguy.com, which provides Smartguy.com with a significant competitive advantage, and needs to be protected from improper disclosure. In consideration for the disclosure of the Confidential Information, Affiliate agrees to hold in strictest confidence and to not disclose under any and all circumstances the Confidential Information to any person or entity without the prior written consent of Smartguy.com. Affiliate will not copy or modify any Confidential Information without the prior written consent of Smartguy.com. Further, Affiliate shall not disclose any Confidential Information to any of Affiliate's customers, contractors, agents or employees, except those contractors or employees who are required to have the Confidential Information in order to perform their job duties in connection with the limited purposes of this Agreement. Each permitted person to whom Confidential Information is disclosed shall sign a non-disclosure agreement substantially the same as this Agreement at the request of Smartguy.com, while Affiliate continues to remain liable to Smartguy.com for the execution of this Agreement. If it appears that Affiliate has disclosed or has threatened to disclose Confidential Information in violation of this Agreement, Smartguy.com shall be entitled to an injunction to restrain Affiliate from disclosing, in whole or in part, the Confidential Information. Smartguy.com shall not be prohibited by this provision from pursuing other remedies, including a claim for losses and damages.
8.0 TERMINATION
8.1 Termination.
Affiliate's participation in the Program is terminable at any time and for any reason or for no reason at all, in Smartguy.com's sole discretion. Without limitation, Affiliate's participation in the Program shall be deemed automatically terminated immediately and all commissions forfeited upon Affiliate's change in taxpayer status pursuant to Section 6.1 or upon Affiliate's violation of any of these Terms and Conditions or of any applicable law or regulation having the force of law. In addition, without limitation, Affiliate's participation in the Program may be terminated where Smartguy.com, in its sole discretion determines: (1) that any content, goods, services, or links displayed on or made available through or in connection with Affiliate's web site(s) are obscene, indecent, vulgar, offensive, dangerous, slanderous, reputation damaging or are otherwise deemed inappropriate by Smartguy.com, in its sole discretion; (2) that Affiliate or Affiliate's web site(s) is or has become the subject of a government complaint or investigation; or (3) that Affiliate or Affiliate's web site(s) threatens to violate either the letter of these Terms and Conditions or the spirit behind them.
8.2 Notice of Termination.
Smartguy.com shall provide notice of termination pursuant to Section 15.0 governing notices. Where Affiliate's participation in the Program is terminated automatically as described in Section 8.1 above, no notice of termination need be provided for such termination to be effective.
8.3 Effect of Termination.
Upon termination, Affiliate shall immediately cease and desist from exercising any rights conferred by these Terms and Conditions, including, without limitation, from making any use of the links, promotional materials, trademarks, and branding made available through the Program. Upon termination, Affiliate may not register for any subsequent participation in the Program or rejoin the Program, without the prior, written consent of Smartguy.com. All monies due and not paid shall be forfeited by Affiliate
8.4 Survival.
The provisions of Sections 3.1, 3.4, 4.0, 5.0, 6.4, 6.5, 6.6, 6.7, 7.0, 8.0, 9.0, 10.0, 11.0, 12.0, 13.0, 16.0, 17.0, 18.0, 19.0, 21.0, and 22.0 shall survive any termination of Affiliate's participation in the Program.
9.0 AFFILIATE'S PRIVACY
9.1 Privacy and Third Parties.
Smartguy.com may provide to third parties the information that Affiliate submits in registering for the Program and Affiliate as Smartguy.com deems necessary.
9.2 Social Security Number or Taxpayer Identification Number.
Any Affiliate who is a United States citizen or resident or other non-foreign person acknowledges that Affiliate's United States social security number or taxpayer identification number will be provided on any Internal Revenue Service Forms 1099 or any other tax forms required to be furnished to Affiliate and provided to the Internal Revenue Service to reflect commissions earned pursuant to the Program.
9.3 Password.
Affiliate shall receive a password to access Affiliate's account. Affiliate is entirely responsible for any and all activities, which occur under Affiliate's password. Affiliate agrees to keep its password strictly confidential, to allow no other person or company to use its password, and to notify Smartguy.com promptly if Affiliate has any reason to believe that the security of its account has been violated.
9.4 Technical Access.
Affiliate acknowledges and agrees that the technical processing of Affiliate's registration information is and may be required: (a) for the Program to function; (b) to conform to the technical requirements of connecting networks; (c) to conform to the technical requirements of the Program; or (d) to conform to other, similar technical requirements. Affiliate also acknowledges and agrees that Smartguy.com may access Affiliate's account and its contents at any time as necessary to identify or resolve technical problems or respond to complaints about the Program or for any other reason Smartguy.com sees fit; provided, however, that nothing in this Section shall impose such a duty on Smartguy.com.
9.5 Contact.
Smartguy.com may contact Affiliate directly from time to time.
9.6 Privacy Policy.
Except as expressly provided in these Terms and Conditions, information submitted by Affiliate in connection with the Program shall be governed by the Smartguy.com Privacy Policy.
10.0 INDEMNITY
Affiliate agrees to indemnify and hold harmless Smartguy.com, and its parents, subsidiaries, affiliates, officers, directors, shareholders, employees and agents, from any claim or demand, including, without limitation, penalties, interest, reasonable attorneys' fees and costs claimed, demanded, or incurred in connection with any claim or demand, made by any third party due to or arising directly or indirectly out of Affiliate's conduct, Affiliate's web site(s), Affiliate's participation in the Program, any content, goods, services, or links displayed on or made available through or in connection with Affiliate's web site(s), any claim that Smartguy.com is obligated to pay tax obligations in connection with compensation paid to Affiliate pursuant to the Program, any alleged violation of these Terms and Conditions, any alleged violation of any applicable law or regulation, or any alleged violation of any rights of another, including but not limited to Affiliate's use of any content, trademarks, service marks, trade names, copyrighted or patented material, or other intellectual property used in connection with Affiliate's web site(s). Smartguy.com reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Affiliate, but doing so shall not excuse Affiliate's indemnity obligations. Smartguy.com shall have the right to participate in the defense of all claims pursuant to this Section.
11.0 TAX OBLIGATIONS
Affiliate shall be solely responsible for all tax obligations due to all taxing authorities arising from or in connection with Affiliate's participation in the Program, including, without limitation, foreign taxes, United States federal, state, and local withholding taxes, FICA, FUTA, Social Security, Medicare, SUI, and any other such taxes and deductions ('Taxes') with respect to any earnings or payments made hereunder, whether or not Smartguy.com legally is required to deduct said Taxes from the payments due to Affiliate hereunder. Affiliate understands and agrees that Smartguy.com shall not be responsible for withholding any Taxes from any payments due to Affiliate. Affiliate agrees to indemnify and reimburse Smartguy.com from any claim for assessment of Taxes by any foreign, United States federal, state, and/or local taxing authority, and any other costs and damages, arising from or in connection with the operation of this Section.
12.0 DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
12.1 DISCLAIMER OF WARRANTIES.
THE PROGRAM, INCLUDING ALL SERVICES PROVIDED IN CONNECTION WITH THE PROGRAM, ARE PROVIDED "AS IS," WITH NO WARRANTIES WHATSOEVER. ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS, ARE EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW. TO THE FULLEST EXTENT PERMITTED BY LAW, SMARTGUY.COM DISCLAIMS ANY WARRANTIES FOR THE SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THE PROGRAM, INCLUDING THE SERVICES PROVIDED IN CONNECTION WITH THE PROGRAM. YOU UNDERSTAND AND AGREE THAT ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH PARTICIPATION IN THE PROGRAM IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS IN THE DOWNLOAD OF SUCH MATERIAL. Some jurisdictions do not allow the disclaimer of implied warranties. In such jurisdictions, the foregoing disclaimers may not apply to you insofar as they relate to implied warranties.
12.2 LIMITATION OF LIABILITY.
UNDER NO CIRCUMSTANCES SHALL SMARTGUY.COM BE LIABLE TO AFFILIATE ON ACCOUNT OF AFFILIATE'S PARTICIPATION IN THE PROGRAM, USE OR MISUSE OF THE PROGRAM, RELIANCE ON THE PROGRAM, INABILITY TO PARTICIPATE IN THE PROGRAM, OR FOR THE INTERRUPTION, SUSPENSION OR TERMINATION OF THE PROGRAM. SUCH LIMITATION OF LIABILITY SHALL APPLY TO PREVENT RECOVERY OF DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, AND PUNITIVE DAMAGES (EVEN IF SMARTGUY.COM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). SUCH LIMITATION OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM PARTICIPATION IN THE PROGRAM, USE OR MISUSE OF THE PROGRAM, RELIANCE ON THE PROGRAM, FROM INABILITY TO PARTICIPATE IN THE PROGRAM, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE PROGRAM (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES). SUCH LIMITATION SHALL APPLY, WITHOUT LIMITATION, TO THE COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOST PROFITS, OR LOST DATA. SUCH LIMITATION SHALL APPLY WITH RESPECT TO THE PERFORMANCE OR NON-PERFORMANCE OF THE PROGRAM OR ANY INFORMATION OR MERCHANDISE THAT APPEARS ON, OR IS LINKED OR RELATED IN ANY WAY TO, THE SMARTGUY.COM NETWORK. SUCH LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. SUCH LIMITATION SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. In some jurisdictions, limitations of liability are not permitted. In such jurisdictions, the foregoing limitation may not apply to you.
13.0 RELEASE
Affiliate hereby agrees to release Smartguy.com and its parents, subsidiaries, affiliates, officers, directors, agents, shareholders, representatives, and employees from any and all claims, demands, debts, obligations, damages (actual or consequential), costs, and expenses of any kind or nature whatsoever, whether known or unknown, suspected or unsuspected, disclosed or undisclosed, that Affiliate may have against them arising out of or in any way related to such disputes and/or to the Program. Affiliate hereby agrees to waive all laws that may limit the efficacy of such releases.
14.0 NO RESALE, ASSIGNMENT, OR SUBLICENSING
Affiliate agrees not to resell, assign, sublicense, otherwise transfer, or delegate its rights or obligations under these Terms and Conditions without the prior express written authorization of Smartguy.com.
15.0 FORCE MAJEURE
Under no circumstances shall Smartguy.com be liable for any delay or failure in performance under these Terms and Conditions resulting directly or indirectly from acts of nature, forces, or causes beyond its reasonable control, including, without limitation, Internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, flood, storms, explosions, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, non-performance of third parties, or loss of or fluctuations in heat, light, or air conditioning.
16.0 NOTICES
Notices or communications pursuant to these Terms and Conditions shall be sent by electronic mail or in writing and shall be deemed delivered upon receipt to the party to whom such communication is directed, at the following addresses: (a) if to Smartguy.com, such notices shall be addressed to Smartguy.com, Inc., Affiliate Program Management, 16133 Ventura Blvd. Suite 700 Encino CA 91436(b) if to Affiliate, such notices shall be addressed to the electronic or mailing address specified when Affiliate registers for participation in the Program, or (c) such other address as either party may give the other by notice as provided above.
17.0 ENTIRE AGREEMENT
These Terms and Conditions constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes all previous proposals, both oral and written, negotiations, representations, writings and all other communications between the parties.
18.0 CHOICE OF LAW AND FORUM
These Terms and Conditions shall be governed by and construed in accordance with, and all legal issues arising from or related to Affiliate's participation in the Program shall be determined by, the laws of The State of California without regard to that state's conflict of law provisions. The state and federal courts of California and Los Angeles County shall be the exclusive forum and venue to resolve any and all disputes arising out of or relating to these Terms and Conditions or to Affiliate's participation in the Program. Affiliate and Smartguy.com consent to personal jurisdiction and venue in the appropriate state court in Los Angeles County, California or the United States District Court for the State of California. AAA
19.0 LIMITATION OF ACTIONS
Affiliate agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to participation in the Program or to these Terms and Conditions must be filed within one (1) year after such claim or cause of action arose, or be forever barred.
20.0 CONSTRUCTIONS
All headings in these Terms and Conditions are for convenience only and shall have no legal or contractual effect. Whenever the context permits, the use of a particular gender shall include the masculine, feminine and neuter genders, and any reference to the singular or the plural shall be interchangeable with the other.
21.0 RELATIONSHIP OF PARTIES
Smartguy.com and Affiliate are independent contractors under these Terms and Conditions, and nothing herein shall be construed to create a partnership, joint venture, agency, or employment relationship. Neither party pursuant to these Terms and Conditions has authority to enter into agreements of any kind on behalf of the other and neither party shall be considered the agent of the other. Under these Terms and Conditions, Affiliate is contracting solely to provide advertising services for Smartguy.com in accordance with these Terms and Conditions.
22.0 SUCCESSORS AND ASSIGNS
These Terms and Conditions shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors, and assigns.
