Zoomerang Affiliate Program Agreement

Zoomerang Affiliate Program Agreement

This Agreement describes the terms and conditions that apply to your participation in the Zoomerang Affiliate Program (the "Affiliate Program"). As used in this Agreement, "you" means the individual or organization completing the Application referred to in Paragraph 1 below.

MarketTools' site(s) http://www.zoomerang.com/ is represented as 'Zoomerang' in this agreement.

Application Process.

In order to participate in the Affiliate Program, you must complete the Affiliate Program Application. We will evaluate the Application and you will automatically be accepted into the Affiliate Program unless we notify you that your Application has been rejected. We may accept or reject your Application in the exercise of our sole discretion for any reason.

You are responsible for the accuracy and appropriateness of all materials posted on your Web Site, and in your newsletters and written materials. We do not tolerate and will not be represented on sites that:

-	Promote discrimination based on sex, race, religion, nationality, disability, sexual orientation, or age

-	Promote 'adult' oriented material or anything of a sexually explicit nature

-	Promote or condone violence

-	Promote business activities using 'unsolicited' marketing methods such as 'spam' email etc.

-	Violate any copyrights, trademarks, privacy or personal rights

-	Include materials that are unlawful, harmful, defamatory, obscene, harassing, or racially, ethnically, or otherwise objectionable.

Use and restriction of Logos, links, Banners and other Zoomerang material.

Zoomerang owns the copyright on all material at our web site, and materials provided to you through the Affiliate Program. You are not permitted to use our advertising material for any purpose other than the promotion of our products. We grant you a non-exclusive, revocable right to use the Zoomerang logo and/or advertising banners provided to you for advertising our site. You may not under any circumstances change the appearance of or modify our logos and banners in any way without our written permission and you must follow any MarketTools, Inc.’ instructions regarding their use, appearance and display. Our names, logos, banners, web site images, web site text and all material publicly displayed at our web site is copyright and trademark protected, and may not be used in any way other than in the legitimate promotion of our business.

In addition, you are not permitted to use the name and trademark "Zoomerang" or any confusingly similar or like word or phrase, or any misspelling, in any way that would suggest that you own or are the source of that name or that it is part of your business or your web site name. Nor shall you use "Zoomerang" in any other way that trades on the valuable goodwill associated with the Zoomerang name. Without limiting the scope of these prohibitions, you shall not, for example, (1) use the name "Zoomerang" or any misspelling as part of a web address (e.g., www.abcd.com/zoomerang, www.zoomerangue.com), (2) use, purchase or advertise with any keywords that incorporate "Zoomerang," any misspelling or any other MarketTools trademarks or trade names, and (3) use "Zoomerang" in any way which permits Zoomerang or MarketTools web pages to open and run within a frame on your web site. Any affiliate found in breach of these requirements will have its membership rights terminated immediately.

MarketTools shall have the right to demand the withdrawal of the Licensed Marks from your Web Site if, in MarketTools’ sole opinion, your Site conflicts with, interferes with, or is detrimental to MarketTools’ interests, reputation, business, practices, procedures or policies, or which might subject MarketTools to unfavorable regulatory action, violate any law, infringe the rights of any person, or subject MarketTools to liability for any reason. Upon written notice from MarketTools to withdraw the Licensed Marks, you shall cease using the Licensed Marks on your Site as soon as possible, but in any event within three (3) days of the date of MarketTools’ written notice.

New Products and Deletions.

From time to time we may discontinue certain services or introduce new features to our services. We will do our best to notify our members of any changes, but you are ultimately responsible for ensuring that your links and information are accurate and up to date.

Establishment of links.

MarketTools has entered into an agreement with a third party provider ("Provider") to perform certain reporting, commission tracking and payment services. Once you have been accepted to participate in the Affiliate Program, you will have access to Zoomerang graphic and textual links through this Provider’s site (each of these links sometimes being referred to herein as a "Licenses Mark" or "Link"). The Link will serve to identify you as a participant in the Affiliate Program and will establish a hypertext link from your Site to the Zoomerang Site.

To permit accurate tracking, reporting and payment of commissions hereunder, you will have access to special "tagged" Link formats through the Provider’s site to be used in all Links between your Site and the Zoomerang Site. You must ensure that each of the Links between your Site and the Zoomerang Site properly use such special link formats ("Special Links"). You will only earn commissions with respect to activity on the Zoomerang Site occurring directly through use of Special Links.

You may post any number of links and Zoomerang marketing materials that you wish or use any other legal means good business practices to promote your affiliation with Zoomerang. Good business practices means that you will comply with all state, federal and foreign laws pertaining to the prohibition of ‘spam’ and the protection of customer privacy, and you may not use any form of unsolicited or non-permission based marketing or 'spam' to promote your affiliation with Zoomerang. Any affiliate found in breach of these requirements will have its membership rights terminated immediately. If you have any doubt as to the integrity of your marketing or sales tactics then you may consult the Zoomerang Acceptable Use Policy, Section 10 for our "No Spamming" policy, or contact Zoomerang Customer Service for additional guidance. However you are ultimately responsible for operating within the law and for observing all legal, moral and ethical trading practices. You will be solely responsible for the design and operation of your web site and for any materials or links on your site. We do not accept, and in agreeing to the terms of this Affiliate Agreement, you indemnify us from, any action, losses, claims, damages relating to the operation of your web site or business. These include any legal costs, expenses or liabilities resulting thereof. You will promptly respond to any request for feedback or other information from Zoomerang.

Account Processing.

MarketTools will process all orders placed by customers who follow Special Links from your Site to the Zoomerang Site. All such customers will become customers of MarketTools ("Customers") and thus, must comply with all Zoomerang operating policies and procedures. MarketTools reserves the right to reject orders that do not comply with any requirements that MarketTools may establish from time to time. MarketTools will be responsible for all aspects of order processing and fulfillment.

You acknowledge that you shall not be a party to any transaction between any Customer and MarketTools, and all aspects of such orders including, but not limited to, purchase terms, payment terms, warranties, and guarantees shall be solely between the Customer and MarketTools.

Commission Payment method and Frequency.

Only products and services: (i) sold by MarketTools; (ii) purchased or licensed by Customers linking to the MarketTools Site from your Web Site using a Special Link; and (iii) for which MarketTools has received full payment ("Qualifying Purchase"), will qualify you for a commission. Commission Payments earned through the date of termination of this Agreement will remain payable only if the purchased products or services are not returned or cancelled by the Customer and will be net of all taxes, returns, charge backs, and other similar charges. The commission percentage shall be as set forth on the Zoomerang Affiliate Application Page, which percentage may be changed from time to time by MarketTools by posting a different percentage on this Page.

MarketTools will remit payment to you by business check for your Affiliate Program commissions 30 days after the end of the month in which the relevant sales occurred. The minimum check amount is $25 USD. If you qualify for less than the minimum check amount, payment will be made once you qualify for sufficient additional Commission Payments that meet or exceed the minimum check amount.

Zoomerang Policies.

We reserve the right to change our policies, procedures, commission structure, commission rates and pricing at any time. We also reserve the right to terminate your participation in the Affiliate Program at any time, for any reason.

Term of this Agreement.

The term of this Agreement will begin on MarketTools's acceptance of your Affiliate Program Application and will end immediately upon termination by either party. Either MarketTools or you may terminate this Agreement at any time, with or without cause and without liability, by giving the other party notice of termination. Notices transmitted via email shall be effective notice hereunder. Upon termination of this Agreement for any reason, you will remove the Licensed Marks, Links, and all other MarketTools trademarks, trade dress, logos and other material provided to you by MarketTools from your Site and any and all servers in your possession or control as soon as technically feasible, but in no event shall the Licensed Marks remain on your Site more than three (3) days after such termination.

Independent Contractor.

Zoomerang’s relationship with our Affiliate Members (you) is one of 'independent contractor'. There is no employment relationship, partnership, joint venture, franchise or agency established between Zoomerang and any Affiliate member. You will not make claims or statements that contradict anything in this agreement.

10.

Limitation of Liability.

MarketTools will not be liable for any delay in accessing and/or inability to access the Zoomerang Site whether due to an act of God, action by any government entity, strike, network difficulty, electronic malfunction, or any other reason, or any reliability or effectiveness related to the Zoomerang Site. MarketTools makes no warranty or representation that the operation of the Zoomerang site will be uninterrupted or error free, and MarketTools will in no event be liable for the consequences of any interruptions or errors.

MARKETTOOLS PROVIDES THE ZOOMERANG SITE AND ALL INFORMATION AND SERVICES AVAILABLE THEREIN "AS IS" AND MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS REGARDING ZOOMERANG OR ANY SERVICES OR INFORMATION PROVIDED BY MARKETTOOLS OR ZOOMERANG. MARKETTOOLS DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, OR NON-INFRINGEMENT. MARKETTOOLS SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING: (i) THE NUMBER OF PERSONS OR ENTITIES THAT WILL ACCESS OR "CLICK THROUGH" TO THE ZOOMERANG SITE FROM YOUR WEB SITE; (ii) ANY BENEFIT THAT YOU MIGHT OBTAIN FROM INCLUDING THE LICENSED MARK(S) ON YOUR WEB SITE; OR (iii) THE AMOUNT OR VOLUME OF COMMISSIONS THAT YOU MIGHT EXPECT TO RECEIVE OR ACTUALLY RECEIVE PURSUANT TO THIS AGREEMENT

IN NO EVENT WILL MARKETTOOLS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES OR FOR COMMERCIAL LOSSES, LOST PROFITS, OR REVENUES FROM ANY CAUSE, WHETHER BASED IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE AND STRICT LIABILITY) OR OTHER LEGAL OR EQUITABLE THEORY AND WHETHER OR NOT MARKETTOOLS OR ZOOMERANG HAS BEEN ADVISED OF THE POSSIBILITY OR CERTAINTY OF SUCH DAMAGES OR LOSSES. YOU AGREE THAT THE TOTAL LIABILITY OF MARKETTOOLS HEREUNDER WITH RESPECT TO ANY CLAIM SHALL NOT EXCEED THE COMMISSIONS PAID BY MARKETTOOLS TO YOU HEREUNDER.

You represent and warrant that you will make no promises, representations or warranties, whether written or oral, with regard to MarketTools or the services provided by MarketTools, beyond those provided by MarketTools in writing. You will indemnify and hold MarketTools harmless from all damages, claims and liabilities (including attorneys' fees and costs) resulting from a breach of the foregoing representation and warranty.

11.

Acknowledgement - Independent Investigation.

YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. 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.

This Agreement contains the entire agreement between the parties and there are no understandings or agreements relative hereto other than those which are expressed therein. This Agreement will be governed by the laws of the United States and the State of California, without reference to rules governing choice of laws. Any action relating to this Agreement must be brought in the federal or state courts located in Marin County or San Francisco County, California, and you irrevocably consent to the jurisdiction of such courts. You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of and be enforceable against the parties and their respective successors and assigns. Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement.

Note. We reserve the right to modify these terms as necessary without prior notification.