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SENA TECHNOLOGIES AFFILIATE PROGRAM AGREEMENT
Before you can participate in our program, we will need to approve your website. We reserve the right to reject your application in our sole discretion if we determine your website is unsuitable. Reasons for rejection include, but are not limited to: the website is unavailable or under construction; the website is aesthetically unpleasing; the website contains hate/violent/sexually explicit/offensive content; the website promotes excessive drinking/drug use; the website promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age; the website is libelous, disparaging, or defamatory; the website promotes violence or illegal activities; or the website incorporates materials that infringe upon copyright, trademark or other intellectual property rights. We will try to respond to approval requests in a timely manner.
PLEASE READ THE FOLLOWING AGREEMENT CAREFULLY. YOUR PARTICIPATION IN THE SENA TECHNOLOGIES AFFILIATE PROGRAM IS CONDITIONED UPON YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT. BY SELECTING THE "ACCEPT" BUTTON AT THE BOTTOM OF THE ONLINE APPLICATION, YOU ARE ENTERING INTO AN AGREEMENT WITH SENA TECHNOLOGIES AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
MASTER AGREEMENT
This Master Agreement ("Agreement") is made between SENA Technologies, Inc. ("Sena") and you ("Partner").
BACKGROUND
Partner and Sena are each enrolled in the The LinkShare Network(tm).
Partner and Sena each desire to establish the general terms and conditions which shall govern advertising and commission arrangements between Partner and Sena which result from their participation in The LinkShare Network(tm).
TERMS AND CONDITIONS
In consideration of the promises set forth below, we agree as follows:
1. Offers and Engagements.
1.1. From time to time, Sena may post on The LinkShare Network(tm) offers to pay to other participants a specified commission in return for certain advertising services leading to a Qualifying Link (defined below). If such offers receive an identification number from The LinkShare Network(tm) they shall 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 accordance with the Offer's terms via The LinkShare Network(tm), an "Engagement" will have been formed. Each Engagement shall have the same identification number as the original Offer that lead to the Engagement and shall be governed by the terms and conditions of this Agreement. However, in the event of any inconsistency between 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, Sena may with or without notice (a) change, suspend or discontinue any aspect of an Offer or an Engagement or (b) remove, alter, or modify any graphic or banner ad submitted by Sena for an Offer or an Engagement. Partner agrees to promptly implement
any request from Sena to remove, alter or modify any graphic or banner ad submitted by Sena 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 Sena's site using special URLs specified in the Engagement (the "Required URLs"). Partner may post as many links to the Required URLs and the rest of Sena's site as it likes on Partner's site. The position, prominence and nature of links on the Partner's site shall comply with any requirements specified in the Engagement, but otherwise will be in the discretion of Partner.
2.2. Partner agrees not to make any representations, warranties or other statements concerning Sena, Sena's site, any of Sena's products or services, or Sena's site policies, except as expressly authorized by the Engagement.
2.3. Partner is responsible for notifying Sena and The LinkShare Network(tm) of any malfunctioning of the Required URLs or other problems with Partner's participation in the Engagement. Sena will respond promptly to all concerns upon notification by Partner.
2.4. Partner agrees not to bid on any key word/search terms for which Sena owns a trademark, service mark, or other intellectual property ownership. Sena will provide Partner with a list of such key words or search terms. Sena may change or amend this list every 30 days. Partners violating this paragraph may be terminated without notice and will forfeit all outstanding and future commissions owed under any Engagement.
3. Commissions.
3.1. Sena agrees to pay Partner the commission specified in the Engagement if Sena sells to a visitor to Sena's site (a "Customer") a product or service that is the subject of the Engagement and if that Customer has accessed Sena'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 Sena's using one of the Required URLs or any other URL provided by Sena for use in The LinkShare Network(tm) if it is the last link to the Sena's site that the Customer uses during a Session where a sale of a product or a service to Customer occurs. A "Session" is the period of time beginning from a Customer's initial contact with Sena's site via a link from the Partner's site and terminating when the Customer either returns to the Sena's site via a link from a site other than Partner's site or the Engagement expires or is terminated.
3.3. Sena shall have the sole right and responsibility for processing all orders made by Customers. Partner acknowledges that all agreements relating to sales to Customers shall be between Sena and the Customer.
3.4. Sena will pay commissions earned in accordance with this Agreement on a monthly basis. If a Customer returns product(s) that generated a Referral Fee, Sena will deduct the corresponding Referral Fee from commission payments earned in the month that the product(s) are returned; if there is no subsequent payment, Sena will send Partner an invoice for the Referral Fee payable within thirty (30) days of receipt of the invoice.
3.5. All determinations of Qualifying Links and whether a commission is payable will be made by The LinkShare Network(tm) and will be final and binding on both Sena and Partner. Prices for the products will be set solely by Sena in its discretion.
4. Ownership and Licenses.
4.1. Each party owns and shall retain all right, title and interest in its names, logos, trademarks, service marks, trade dress, copyrights and proprietary technology, including, without limitation, those names, logos, trademarks, service marks, trade dress, copyrights and proprietary technology currently used or which may be developed and/or used by it in the future.
4.2. Sena grants Partner a revocable, non-exclusive, worldwide license to use, reproduce and transmit the name, logos, trademarks, service marks, trade dress and proprietary technology, as designated in the Engagement or during the registration process in The LinkShare Network(tm), on Partner's site solely for the purpose of creating links from Partner's site to Sena's site during Engagements. Except as expressly set forth in this Agreement or permitted by applicable law, Partner may not copy, distribute, modify, reverse engineer, or create derivative works from the same. Partner may not sublicense, assign or transfer any such licenses for the use of the same, and any attempt at such sublicense, assignment or transfer is void.
4.3. Partner grants Sena a non-exclusive, worldwide, royalty-free license to use, reproduce and transmit any graphic or banner ad submitted by Partner solely for co-branding purposes or as a return link from Sena's site to Partner's site. Sena will remove such graphic or banner ad upon Partner's request.
5. E-Mail Solicitation.
Partner may under certain limited circumstances send emails using Content provided by Sena if the following conditions are met: (a) The "From" line of each email must contain Partner's name. Sena's name must not be included or referenced in any way in the "From" line. The email must be designed so as to be clear that it is being sent from Partner and not Sena. (b) Partner will create a process by which email recipients may opt-out of receiving future email from Partner. Partner must have the necessary processes in place to immediately remove such email address from its email list. Among other things, Partner must maintain a "do not email list" and every opt-out request must be placed on this list. (c) Partner must comply in all respects with the CAN-SPAM Act of 2003. (d) Sena may request that Partner immediately stop any email campaign containing Sena's Content or Sena Marks, for any reason, in its sole discretion.
6. Termination.
6.1. Either party may terminate any Engagement at any time by deleting their acceptance of the Engagement through The LinkShare Network(tm). Termination of an Engagement shall not terminate this Agreement or any other Engagement.
6.2. 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 such termination to the other party and The LinkShare Network(tm). Termination of this Agreement shall also terminate any outstanding Engagements. However, all rights to payment, causes of action and any provisions which by their terms are intended to survive termination, shall survive termination of this Agreement.
7. Representations.
7.1. Each party represents to the other that (a) it has the authority to enter into 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 the other 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 or privacy; (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 false advertising; (vi) promote violence or contain hate speech; or (vii) contain viruses, trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines.
7.2. EXCEPT FOR THE ABOVE REPRESENTATIONS NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES TO THE OTHER PARTY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8. Cross-Indemnification.
8.1. Each party hereby agrees to indemnify, defend and hold harmless the other party and its affiliates, directors, officers, employees and agents, from and against any and all liability, claims, losses, damages, injuries or expenses (including reasonable attorneys' fees) brought by a third party, arising out of a breach, or alleged breach, of any of its representations or obligations herein.
9. Limitation of Liability.
Sena 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 Sena has been advised of the possibility of such damages. Further, Sena's aggregate liability arising with respect to this Agreement and the Program will not exceed the total Referral Fees paid or payable to Partner under this Agreement.
10. General.
10.1. Each party shall act as an independent contractor and shall have no authority to obligate or bind the other in any respect.
10.2. The parties agree that The The LinkShare Network(tm) and LinkShare Corporation are intended third party beneficiaries under this Agreement.
10.3. This Agreement has been made in and shall be construed and enforced in accordance with the laws of the state of Sena's headquarters. Any action to enforce this Agreement shall be brought in the federal or state courts located in that state. If you need to send official correspondence, send it via registered mail to Sena's headquarters to the attention of Sena's legal department.
10.4. This Agreement may be agreed to in more than one counterpart, each of which together shall form one and the same instrument. The parties agree that execution may be achieved in any format convenient to the parties.
10.5. The provisions of this Agreement are independent of and separable from each other, and no provision shall be affected or rendered invalid or unenforceable by virtue of the fact that for any reason any other or others of them may be invalid or unenforceable in whole or in part.
BY SELECTING THE "ACCEPT" BUTTON ON THE APPLICATION FORM, PARTNER IS ACKNOWLEDGING THAT IT HAS CAREFULLY REVIEWED THE FOREGOING AGREEMENT AND AGREES TO ALL OF THE TERMS AND CONDITIONS CONTAINED THEREIN. PARTNER ACKNOWLEDGES THAT THIS AGREEMENT WILL ONLY BE EFFECTIVE UPON SENA'S ACCEPTANCE OF PARTNER'S ONLINE APPLICATION FOR PARTICIPATION IN THE SENA AFFILIATE PROGRAM
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