SMARTHOME AFFILIATE PROGRAMTERMS AND CONDITIONSIn consideration of the promises set forth below, we agree as follows:1. Offers and Engagements.1.1. From time to time, Merchant may post on The LinkShare Network(tm) offers topay to other participants a specified commission in return for certainadvertising services leading to a Qualifying Link (defined below). If suchoffers receive an identification number from The LinkShare Network(tm) theyshall be deemed to be an 'Offer' for purposes of this Agreement. The term'Offer' shall also include any counter-offers resulting from an Offer.1.2. If an Offer made by one party is accepted by the other party in accordancewith the Offer's terms via The LinkShare Network(tm), an 'Engagement' will havebeen formed. Each Engagement shall have the same identification number as theoriginal Offer that lead to the Engagement and shall be governed by the termsand conditions of this Agreement. However, in the event of any inconsistencybetween the terms of the specific Engagement and the terms of this Agreement,the terms of the Engagement shall govern.1.3. At any time prior to Partner providing a Qualifying Link, Merchant may withor without notice (a) change, suspend or discontinue any aspect of an Offer oran Engagement or (b) remove, alter, or modify any graphic or banner ad submittedby Merchant for an Offer or an Engagement. Partner agrees to promptly implementany request from Merchant to remove, alter or modify any graphic or banner adsubmitted by Merchant that is being used by Partner as part of an Engagement.2. Partner's Responsibilities.2.1. Partner will link its site to areas within Merchant's site using specialURLs specified in the Engagment (the 'Required URLs'). Partner may post as manylinks to the Required URLs and the rest of Merchant's site as it likes onPartner's site. The position, prominence and nature of links on the Partner'ssite shall comply with any requirements specified in the Engagement, butotherwise will be in the discretion of Partner.2.2. Partner agrees not to make any representations, warranties or otherstatements concerning Merchant, Merchant's site, any of Merchant's products orservices, or Merchant's site policies, except as expressly authorized by theEngagement.2.3. Partner is responsible for notifying Merchant and The LinkShare Network(tm)of any malfunctioning of the Required URLs or other problems with Partner'sparticipation in the Engagement. Merchant will respond promptly to all concernsupon notification by Partner.3.Commissions.3.1. Merchant agrees to pay Partner the commission specified in the Engagment ifMerchant sells to a visitor to Merchant's site (a 'Customer') a product orservice that is the subject of the Engagement and if that Customer has accessedMerchant's site and purchased the product or service via a Qualifying Link.3.2. A 'Qualifying Link' is a link from Partner's site to Merchant's using oneof the Required URLs or any other URL provided by Merchant for use in TheLinkShare Network(tm) if it is the last link to the Merchant's site that theCustomer uses during a Session where a sale of a product or a service toCustomer occurs. A 'Session' is the period of time beginning from a Customer'sinitial contact with Merchant's site via a link from the Partner's site andterminating when the Customer either returns to the Merchant's site via a linkfrom a site other than Partner's site or the Engagement expires or isterminated.3.3. Merchant shall have the sole right and responsibility for processing allorders made by Customers. Partner acknowledges that all agreements relating tosales to Customers shall be between Merchant and the Customer.3.4. All determinations of Qualifying Links and whether a commission is payablewill be made by The LinkShare Network(tm) and will be final and binding on bothMerchant and Partner. Prices for the products will be set solely by Merchant inits discretion.4. Ownership and Licenses.4.1. Each party owns and shall retain all right, title and interest in itsnames, logos, trademarks, service marks, trade dress, copyrights and proprietarytechnology, including, without limitation, those names, logos, trademarks,service marks, trade dress, copyrights and proprietary technology currently usedor which may be developed and/or used by it in the future.4.2. Merchant grants Partner a revocable, non-exclusive, worldwide license touse, reproduce and transmit the name, logos, trademarks, service marks, tradedress and proprietary technology, as designated in the Engagement or during theregistration process in The LinkShare Network(tm), on Partner's site solely forthe purpose of creating links from Partner's site to Merchant's site duringEngagements. Except as expressly set forth in this Agreement or permitted byapplicable law, Partner may not copy, distribute, modify, reverse engineer, orcreate derivative works from the same. Partner may not sublicense, assign ortransfer any such licenses for the use of the same, and any attempt at suchsublicense, assignment or transfer is void.4.3. Partner grants Merchant a non-exclusive, worldwide, royalty-free license touse, reproduce and tramsit any graphic or banner ad submitted by Partner solelyfor co-branding purposes or as a return link from Merchant's site to Partner'ssite. Merchant will remove such graphic or banner ad upon Partner's request.5. Termination.5.1. Either party may terminate any Engagement at any time by deleting theiracceptance of the Engagement through The LinkShare Network(tm). Termination ofan Engagement shall not terminate this Agreement or any other Engagement.5.2. Either party may terminate this Agreement at any time, for any reason,provided that they provide at least five day's prior written notice of suchtermination to the other party and The LinkShare Network(tm). Termination ofthis Agreement shall also terminate any outstanding Engagements. However, allrights to payment, causes of action and any provisions which by their terms areintended to survive termination, shall survive termination of this Agreement.6. Representations.6.1. Each party represents to the other that (a) it has the authority to enterinto this Agreement and sufficient rights to grant any licenses granted hereby,and (b) any material which is provided to the other party and displayed on theother party's site will not (i) infringe on any third party's copyright, patent,trademark, trade secret or other proprietary rights or right of publicity orprivacy; (ii) violate any applicable law, statute, ordinance or regulation;(iii) be defamatory or libelous; (iv) be lewd, pornographic or obscene; (v)violate any laws regarding unfair competition, antidiscrimination or falseadvertising; (vi) promote violence or contain hate speech; or (vii) containviruses, trojan horses, worms, time bombs, cancelbots or other similar harmfulor deleterious programming routines.6.2. EXCEPT FOR THE ABOVE REPRESENTATIONS NEITHER PARTY MAKES ANYREPRESENTATIONS OR WARRANTIES TO THE OTHER PARTY, INCLUDING, BUT NOT LIMITED TO,ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.7. Cross-Indemnification.7.1. Each party hereby agrees to indemnify, defend and hold harmless the otherparty and its affiliates, directors, officers, employees and agents, from andagainst any and all liability, claims, losses, damages, injuries or expenses(including reasonable attorneys' fees) brought by a third party, arising out ofa breach, or alleged breach, of any of its representations or obligationsherein.8. LinkShare Required Provisions.8.1. Merchant and Partner jointly and severally hereby agree to indemnify,defend, and hold harmless The LinkShare Network(tm) and LinkShare Corporationand its affliates, officers, directors, employees and agents (collectively,'LinkShare') from and against any and all liability, claims, losses, damages,injuries or expenses (including reasonable attorneys' fees) directly orindirectly arising from or relating to any Offer, Engagement, any other matterrelated to this Agreement or the subject matter hereof any dispute relatingthereto.8.2. The parties agree that LinkShare may rely on any data, notice, instructionor request furnished to LinkShare by either party which is reasonably believedby LinkShare to be genuine and to have been sent or presented by a personreasonably believed by LinkShare to be authorized to act on behalf of one of theparties. In the event of any dispute between the parties, the parties agreethat to the extent the parties contact and involve LinkShare, LinkShare mayconsult with and use counsel of its own choice in connection with such disputeand the reasonable fees and disburesements of LinkShare's counsel shall bewithin the costs and disbursements covered by the indemnity specified in Section8.1 above.8.3. The parties acknowledge and agree that this Agreement and the Engagementsare only made possible due to LinkShare and that the parties shall not, for theduration of this Agreement and for twenty-four (24) months thereafter, enterinto any advertising, collaborations or other commercial arrangements with eachother in connection with their sites on the World Wide Web except via TheLinkShare Network(tm).8.4. Merchant and Partner acknowledge and agree that the nature of the Productis such that in its normal operation it may access and download elements ofsoftware data from resources which are external to the computer or devicerunning the Product, such as Product enabled servers. Merchant and Partneracknowledge that LinkShare has not undertaken to provide such external resourcesor servers and specifically disclaims any representation or warranty as theavailability, quality or performance of such resources or whether they maycontain any defects which may affect the performance of the Product or Merchantor Partner's computer. LinkShare shall not be responsible for provision of anycommunications facilities or the costs associated with such communications.8.5. Merchant and Partner agree that LinkShare is an intended third partybeneficiary.'9. Limitation of Liablity.9.1. In no event shall either party be liable to the other party for any direct,indirect, special, exemplary, consequential or incidental damages, even ifinformed of the possibility of such damages.9.2. The parties agree that The LinkShare Network(tm) and LinkShare Corporationand its affliates, officers, directors, employees and agents shall not be liableto either party for any direct, indirect, special, exemplary, consequential orincidental damages, even if informed of the possibility of such damages.10. General.10.1. Each party shall act as an independent contractor and shall have noauthority to obligate or bind the other in any respect.10.2. The parties agree that The The LinkShare Network(tm) and LinkShareCorporation are intended third party beneficiaries under this Agreement.10.3. This Agreement has been made in and shall be construed and enforced inaccordance with the laws of the state of Merchant's headquarters. Any action toenforce this Agreement shall be brought in the federal or state courts locatedin that state. If you need to send official correspondence, send it viaregistered mail to Merchant's headquarters to the attention of Merchant's legaldepartment.10.4. This Agreement may be agreed to in more than one counterpart, each ofwhich together shall form one and the same instrument. The parties agree thatexecution may be achieved in any format convenient to the parties.10.5. The provisions of this Agreement are independent of and separable fromeach other, and no provision shall be affected or rendered invalid orunenforceable by virtue of the fact that for any reason any other or others ofthem may be invalid or unenforceable in whole or in part.
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