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CourseSmart(TM) Textbooks Affiliate Program and Agreement
This Agreement sets forth all the terms and conditions that apply to the relationship between CourseSmart LLC ("CourseSmart") and participants in the CourseSmart(TM) Textbooks Affiliate Program (the "Program"). CourseSmart may sometimes be referred to as "we" and the Affiliate may sometimes be referred to as "you."
To apply to the Program, you must have your own web site connected to the World Wide Web ("your site"), and you must register on the CourseSmart web site (the "CourseSmart site"). You must also agree to the terms of this Agreement by clicking the check box labeled "Yes, I have read and agree to the CourseSmart eTextbooks Affiliate Program Agreement," which appears on the Registration page. By doing that, you acknowledge that you have reviewed this Agreement and agree to comply with the terms and conditions contained herein.
As part of your registration, you are agreeing (a) to give CourseSmart accurate, current, and complete information about yourself on the registration form (the "Registration Data"); (b) to maintain the security of your password and identification; (c) to maintain and promptly update the Registration Data, and any other information you provide to CourseSmart, in order to keep it accurate, current and complete; (d) that your site does not and will not at any time contain or promote or link to other sites containing materials that: are sexually explicit; depict or promote violence or bias crimes; are discriminatory with respect to age, race, sex, religion, nationality, disability, or sexual orientation; are illegal or promote illegal activity; or violate intellectual property rights of other persons (collectively, the "prohibited activities").
We may reject your registration if we visit your site and determine that your site does engage in any prohibited activities. If we reject your registration, you may reapply to the Program at any time.
You are solely responsible for all use of the Program under your password and/or through your account. If you lose your password or suspect unauthorized use of your account, you must inform CourseSmart immediately. CourseSmart shall not be liable for any loss or damage resulting from your failure to safeguard your password and account.
Once we notify you that we have accepted your registration as an Affiliate, we will provide pre-programmed Promotion Tools ("Promotion Tools") that allow Affiliates to incorporate banner ads and buttons linking the Affiliates' site(s) to the CourseSmart site. Affiliates may then earn referral fees for CourseSmart subscriptions entered into by visitors who subscribe through these approved links.
As an Affiliate, you are granted a limited, revocable, non-exclusive, non-transferable license to use the Promotion Tools associated with Program in accordance with this Agreement. This means that: (a) You may use the Promotion Tools to incorporate pre-programmed HTML and graphics onto your site. (b) You are prohibited from modifying the Promotion Tools, without expressed, prior written consent from CourseSmart. (c) You are prohibited from selling, redistributing, sublicensing, or transferring all or any portion of the Promotion Tools, and from interfering or attempting to interfere in any manner with the proper working of the Promotion Tools.
On your site, you may use the Promotional Tools and generally identify yourself as a CourseSmart Affiliate and publicize your participation in the Program, but you are strictly prohibited from issuing any press release with respect to the Program, this Agreement or your participation in the Program. Except to identify yourself as an Affiliate, you may not in any manner express or imply any relationship or affiliation between CourseSmart and you, or that CourseSmart supports, endorses, or contributes to your corporation, your site, or your activities. You are also prohibited from in any way copying or imitating the look and feel of CourseSmart's site to create the impression that your site is related to or a part of the CourseSmart site. You are also prohibited from acquiring the search words and phrases "CourseSmart," "CourseSmart eTextbooks Online," "CourseSmart Books Online," "CourseSmart Bookshelf" or any variation thereof that may reasonably cause your site to appear as a result of a search containing any of those words and phrases.
CourseSmart reserves the right to immediately terminate your participation in the Program if CourseSmart at any time determines, or has reason to believe, that (a) you have provided any information that is untrue, inaccurate or incomplete or (b) you are otherwise violating this Agreement in that (i) your site is engaging in any prohibited activities listed in section 1; (ii) you are violating our trademarks or other proprietary rights by using trademarks or domains that include the word "CourseSmart" or variations of it, or otherwise exceeding the rights CourseSmart is granting to you under Section 3; or (iii) you are engaging in any other activity that may, in CourseSmart's sole judgment, harm CourseSmart's reputation or goodwill or the reputation or goodwill of our participating publishers.
As an Affiliate in good standing under this Agreement, you will be entitled to payment of a one-time fee of five percent (5%) of net sales (sales minus any applicable taxes, refunds or re-subscriptions) on all purchases made by students during a visit to the CourseSmart site from the approved link on your site. In order to be a paid Affiliate, you must have a legitimately acquired and valid US tax identification number (social security number or corporate EIN).
CourseSmart reserves the right to change the fee amount and requirements for payment from time-to-time in its sole discretion, provided that any change would not effect past earnings.
Payments will be made quarterly for quarters ending as of March 31, June 30, September 30, and December 31. Checks will be mailed approximately four (4) to six (6) weeks following the end of each quarter, except that no payments will be made for any quarter in which total fees due to you are less than $50.00. Those fees will be rolled over into the next quarter until the total amount equals at least $50.00.
All users who click through to the CourseSmart site are deemed to be customers of CourseSmart. We have no obligation to share with you any customer information we collect. To the extent that we share with you any customer information that we collect, you shall maintain such information in strict confidence, and make use of it only as expressly permitted by us. In no event will you make use of any such customer information in violation of the CourseSmart Privacy Policy, or in any illegal manner.
Under no circumstances shall you send commercial electronic mail messages as defined in the Federal spam law, the CAN-SPAM Act of 2003 (the "Act"), with respect to the Program, or with respect to or utilizing the Promotional Tools. You are not prohibited from sending transactional or relationship messages as defined and permitted in the Act. You are responsible for your compliance with the Act.
If at any time you provide any text, images, code, and other content other than your registration information ("Content") to CourseSmart for use on the CourseSmart site, you hereby grant to CourseSmart a perpetual, royalty-free, non-exclusive, worldwide, irrevocable right and license to: (a) use, reproduce, perform, display and distribute the Content in any manner, (b) adapt, modify, re-format and create derivative works of the Content for any purpose, and (c) sublicense the foregoing rights to others. In the event you provide CourseSmart with Content, you represent and warrant that: (a) the Content is your original work or you obtained the Content in a lawful manner, and (b) CourseSmart and its licensees' use of the Content will not violate any third party's rights, including but not limited to copyright, trade secret, or contract rights. CourseSmart reserves the right, but is not obligated to, use and publish your name in the form of a credit in conjunction with the Content you supply to CourseSmart, and by supplying any Content, you grant CourseSmart the irrevocable right to do so.
As between you and CourseSmart, CourseSmart is and shall be at all times the owner of all rights throughout the world in and to: the Program; the CourseSmart site; all content included in or related to CourseSmart's services, content, web sites, and related works; all trademarks, service marks, and other proprietary rights and designations related to CourseSmart; and all other proprietary rights embodied in or related to any of the foregoing.
THE COURSEMART SITE, ITS SERVICE AND ITS CONTENTS, INCLUDING THE BOOKS THAT ARE THE SUBJECT OF THE SUBSCRIPTION, ARE PROVIDED "AS IS" AND "AS AVAILABLE," AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE, ACCURACY, OMISSIONS, COMPLETENESS, CONTINUITY OF SERVICE, OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WE MAKE NO REPRESTENTATION THAT THE OPERATION OF THE COURSESMART SITE WILL BE UNINTERRUPTED OR ERROR FREE OR ANY WARRANTY OR REPRESENTATION OF THE AMOUNT OF REFERRAL FEES THAT YOU WILL EARN. YOU HEREBY ACKNOWLEDGE THAT YOUR USE OF THE COURSESMART SERVICE AND PARTICIPATION IN THE PROGRAM IS ENTIRELY AT YOUR OWN RISK.
SOME JURISDICTIONS DO NO ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES. IN SUCH JURISDICTIONS, THE AFOREMENTIONED DISCLAIMERS RELATED TO IMPLIED WARRANTIES MAY NOT APPLY TO YOU.
TO THE FULLEST EXTENT ALLOWED BY LAW, COURSESMART SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGES WHATSOEVER THAT RESULT FROM USE OF THE SERVICE, INCLUDING BUT NOT LIMITED TO: (i) ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES; (ii) DAMAGES RELATED TO YOUR PARTICIPATION IN THE PROGRAM, USE OF ANY PROMOTIONAL TOOLS AND/OR USE OF ANY CONTENT FROM ANY COURSESMART SERVICE; (iii) DAMAGES FOR LOSS OF USE, PROFITS, DATA, OR OTHER INTANGIBLES; (iv) DAMAGES FOR UNAUTHORIZED USE, NON-PERFORMANCE OF SERVICE, ERRORS OR OMISSIONS; (v) DAMAGES RELATED TO DOWNLOADING INFORMATION; AND (vi) DAMAGES RESULTING FROM VIRUSES, WORMS, TROJAN HORSES, OR OTHER CONTAMINATION OR DESTRUCTIVE PROGRAMS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE AGGREGATE LIABILITY OF COURSESMART SHALL BE LIMITED TO THE TOTAL REFERRAL FEES PAID OR DUE YOU UNDER THIS AGREEMENT.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED UNDER THE LAWS OF THE STATE OF CALIFORNIA APPLICABLE TO CONTRACTS MADE AND PERFORMED THERE BY CALIFORNIA RESIDENTS. Any dispute or controversy arising under or in connection with this Agreement shall be fully and finally resolved solely by binding arbitration conducted in San Mateo County, California under the auspices of JAMS by an arbitrator selected by both parties within ten (10) days after either party has notified the other in writing that it desires that the dispute between them be settled by arbitration. In the event the parties cannot agree on an arbitrator within such ten (10) day period, JAMS shall select an arbitrator and inform both parties in writing of such arbitrator's name and address within five (5) days after the end of such ten (10) day period. Each party shall pay its own expenses associated with such arbitration, including the expense of any arbitrator selected by such party, if applicable, and the parties share equally the expenses of a jointly selected arbitrator or arbitrator selected by JAMS. The decision of the arbitrator shall be binding upon the parties and judgment in accordance with that decision may be entered in any court having jurisdiction thereover. Punitive damages shall not be awarded.
You are solely responsible for the operation and maintenance of your site, including without limitation compliance with all applicable laws. CourseSmart disclaims all liability related to the operation of your site. You agree to indemnify, defend and hold harmless CourseSmart, its licensors and licensees from and against any and all suits, losses, claims, demands, liabilities, damages, costs and expenses (including reasonable legal fees and expenses) arising from or relating to (i) the operation and maintenance of your site; (ii) any of your acts or omissions related to your participation in the Program; (iii) your breach of this Agreement or any representation, warranty or covenant made by you herein or therein; or (iv) your violation of any applicable law, statute, ordinance, regulation or any third party's rights, including but not limited to, copyright infringement, harm to a third party's trademark or other intellectual property rights, or any claim of defamation, libel or slander. This obligation survives any termination of this Agreement.
This Agreement is effective as of our acceptance of your registration. Either party may terminate this Agreement at any time, with or without cause, by giving the other party notice of termination in accordance with this paragraph. If CourseSmart terminates your participation, you will be notified by email. If you choose to terminate, you may do so by using the Update Account Information form, or by calling or sending an email to CourseSmart.
Upon the termination of this Agreement, you will immediately cease use of, and remove from your site, all links and references to CourseSmart, the Promotional Tools and any other trademarks, service marks, trade names, logos, and all other designations, content, and/or materials provided by or on behalf of CourseSmart to you. Upon termination, you are eligible for referral fee payments only for Qualified Affiliate Referrals (as defined below) fully completed as of the date of termination, provided such referral fee payment is at least $50.00 or more. "Qualified Affiliate Referrals" means subscriptions received, processed and paid up for at least a sixty (60) day subscription. For instance, you would not be entitled to any payment for a referral that has subscribed but has not yet paid for at least a sixty (60) day subscription as of the termination date.
CourseSmart may amend the terms of this Agreement from time to time by posting amendments on the CourseSmart Web site under "Affiliate Program Agreement." IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE YOUR PARTICIPATION IN THE PROGRAM, WHICH WILL TERMINATE THIS AGREEMENT. YOUR CONTINUED PARTICIPATION IN THIS PROGRAM FOLLOWING THE POSTING OF ANY CHANGES TO THE TERMS OF THIS AGREEMENT WILL INDICATE YOUR BINDING ACCEPTANCE TO THESE CHANGES.
YOU UNDERSTAND THAT COURSESMART 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 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.
If any provision of this Agreement is held by any court or competent authority to be invalid, unlawful or unenforceable, that provision shall be deemed not to be a part of this Agreement, and the remaining portions of this Agreement shall remain in full force and effect.
No failure or waiver by CourseSmart to insist upon or enforce strict performance by you of any provision of this Agreement, or to exercise any of its rights or remedies under this Agreement or otherwise available at law or in equity, will be deemed a waiver of CourseSmart's right to assert or rely on any such provision, right or remedy in that or any other instance.