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Affiliate Partner Agreement – Terms and Conditions This Affiliate Partner Agreement ("Agreement") contains the complete terms and conditions that apply to your participation as an affiliate ("Affiliate") in the Cellular Abroad Affiliate Partner Program. THIS IS A LEGAL AGREEMENT BETWEEN YOU (THE "AFFILIATE") AND CELLULAR ABROAD (THE "COMPANY"). BY CLICKING ON THE "I ACCEPT" BUTTON AT THE END OF THIS AGREEMENT YOU AGREE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK ON THE "I DO NOT ACCEPT" BUTTON AT THE END OF THIS AGREEMENT. To begin the enrollment process, you must submit a complete Affiliate Partner Program Application. We will evaluate your application and notify you of your acceptance or rejection within 3 business days. We reserve the right, in our sole and absolute discretion, to accept or reject your application for any or no reason whatsoever. Upon notice of acceptance of your application, this Agreement shall be effective between you and Cellular Abroad. If your application is temporarily rejected, you may reapply after one (1) week. If your application is permanently rejected, which Cellular Abroad may do in its sole and absolute discretion, you will not be able to reapply to the Cellular Abroad Affiliate Partner for six (6) months. You are not eligible to participate in the Cellular Abroad Affiliate Program if you are a travel phone supplier or if you are an employee of or contractor to a Cellular Abroad Competitor. A Cellular Abroad Competitor means any entity providing online international cell phone purchase, rentals or prepaid SIM cards. If you are an Ineligible Party, or are not sure whether you are or are not an Ineligible Party, you must contact us before attempting to accept the terms of this Agreement. If you are an Ineligible Party and you accept the terms of this Agreement, you agree to (i) terminate this Agreement immediately if you become or Cellular Abroad determines you are an Ineligible Party at any time and (ii) keep confidential any Confidential Information, (as defined below), which you have gained access to during your participation in the Affiliate Program. ANY BREACH OF THIS PROVISION SHALL BE DEEMED A MATERIAL BREACH OF THIS AGREEMENT. 1. Definitions Throughout this Agreement, capitalized terms shall have the meaning ascribed to them in quotes. In addition, the following definitions apply: 1.1. "Advertising" or "Advertisements" means any and all banner advertisements, creatives, pop-under placements, editorial, text links or other solicitations (including, if approved in advance by Cellular Abroad, Cellular Abroad emails) through the Internet that promote the Cellular Abroad Service and contain a Link to the Cellular Abroad Site. 1.2. "Link" means an embedded graphic, icon or text provided by 3rd Party Tracking System or Cellular Abroad containing a unique hypertext pointer to the URL address for the Cellular Abroad Site embedded in an Advertisement and which identifies the number of consumers that become customers via the Advertisement. 1.3. "3rd Party Tracking System” means the Cellular Abroad third party affiliate management system. 1.4. "Cellular Abroad Email" means any material you send by electronic mail that promotes the Cellular Abroad Service. Cellular Abroad Emails require advance approval by Cellular Abroad per Section 4.3 and are otherwise prohibited. 1.5. "Cellular Abroad Offers" means all services and products currently offered on the Cellular Abroad Site. Cellular Abroad may alter and modify services from time to time during the Term. 1.6. "Cellular Abroad Site" means the Cellular Abroad Internet site that is currently located at http://www.Cellular Abroad.com and any other additional, substitute or successor site that may be designated by Cellular Abroad under this Agreement. 1.7. "Customer" means a person, within the United States, Canada or any country who (i) subscribes to a Cellular Abroad Service or product purchase using a Link and through such Link purchases, renews, subscribes, rents from Cellular Abroad. (i.e. requiring the entry of name, billing address, shipping address, email address, and valid payment information) via the Cellular Abroad Site. 2. Term and Termination 2.1. The term of this Agreement ("Term") will begin upon our acceptance of your application and will end when terminated by either party. 2.2. Either party may terminate this Agreement at any time, with or without cause, by giving the other party notice of termination by notifying the other party in writing by mail, email or fax. 2.3. Upon termination of this Agreement, Affiliate shall immediately cease serving Advertisements. 2.4. No commission or bonuses shall be due with respect to clients who have any transaction after the date of termination. We reserve the right to withhold your final payment for a reasonable period of time as necessary to calculate properly any amount due to you. 2.5. Upon termination of this Agreement, all rights and obligations of the parties under this Agreement will be extinguished, except for those rights and obligations that either by their express terms survives or that are otherwise necessary for the enforcement of the Agreement. 3. Obligations of Cellular Abroad 3.1. Upon acceptance of your application, you will have the ability to access performance reports via your account in the Affiliate Partner System. The Affiliate Partner interface will contain certain sales reports and traffic information related to your affiliate relationship with Cellular Abroad. These reports will contain estimates of (i) the number of Internet user click-throughs to the Cellular Abroad Site from use of Advertising; (ii) the commission payable to you pursuant to Section 3.3, below, and; (iii) the number of Subscribers generated from use of Advertising. 3.2. Cellular Abroad shall provide you with all Advertising and you shall use only Advertising provided by Cellular Abroad in promoting the Cellular Abroad Products or Service. The Advertising available for your use will be made available through the Affiliate Partner Site. Cellular Abroad shall be solely responsible for creating and modifying all Advertising. 3.3. During the Term, Cellular Abroad shall pay you a fee ("commission") for each client transaction as of the last day of the month, as documented on the 3rd party tracking and reporting system located on the Affiliate Partner Site. Cellular Abroad reserves the right to adjust the commission payable to you to the extent of any reporting errors, fraudulent transactions or intentional manipulations of the registration or sale process, all as determined in our reasonable, good faith discretion. In addition to all other remedies available to it, Cellular Abroad shall have the right to refuse to make any payment to you with respect to any customer that Cellular Abroad, in its reasonable, good faith discretion, determines was obtained as a result of promotional efforts that were in breach of this Agreement. The commission payable shall be in accordance with the Commission pricing schedule set forth on the Cellular Abroad Payment Schedule. The Cellular Abroad Payment Schedule is outlined per section 12. Cellular Abroad reserves the right to change the commission payable hereunder by providing notice to you and reflecting such changes on the Cellular Abroad Payment Schedule. Any changes to the commission shall become effective upon notice to you. Such notice will be in the form of an email to you. See Section 13.3 for information about your obligations regarding notices. 3.4. Cellular Abroad shall provide payment to Affiliate for any commission you are owed within thirty five (35) days after the last day of the month during which they were earned. Cellular Abroad will then disperse payment to you. Commissions will be calculated and paid out on the 5th of each month. Affiliates will receive a check (in U.S. dollars) for commissions owed via mail. Notwithstanding anything herein to the contrary, to the extent that commission payable to you for any month total less than US $50, Cellular Abroad may defer payment of such commission until such time as such Referral Fees and any other Referral Fees earned during the subsequent period(s), in the aggregate, exceed US $50. No interest will accrue on unpaid commission. 4. Obligations of Affiliate 4.1. As an Affiliate, you are permitted to promote the Cellular Abroad Service only through Advertisements offered through the methods listed below. We have the right, in our reasonable discretion, to monitor your site and Programs to ensure that your links to the Cellular Abroad Site are appropriate. If we decide, in our sole discretion, that your links to the Cellular Abroad Site are not appropriate, then we may either notify you of any changes that we feel should be made, or we may terminate this Agreement upon notice to you. If we notify you of changes we desire you to make to your site or Programs and such changes are not made immediately, then we may terminate this Agreement upon notice to you. You agree that upon our termination of this Agreement you will immediately remove all links to the Cellular Abroad Web Site from your web site or Programs. We reserve the right, in our sole and absolute discretion, to remove you from the Cellular Abroad Affiliate Program for any or no reason whatsoever. 4.1.1. Links from your website to the Cellular Abroad Site, and links or pop-under placements on websites for which you have received express written permission from such sites to serve such links or placements and as otherwise subject to the limitations set forth in this Agreement. 4.2.All promotional activities undertaken by you to promote the Cellular Abroad Service shall be made in accordance with all applicable laws and regulations. Emails and inclusion in newsletters must adhere to federal CAN-SPAM laws and any applicable state laws. In regard to distributing emails you shall not complete the registration to or otherwise interact with the Cellular Abroad Service on behalf of any third party. You are only permitted hereunder to link third parties to the Cellular Abroad Site. All information obtained at the Cellular Abroad Site from individuals linking to the Cellular Abroad Site shall be the sole and exclusive property of Cellular Abroad and, except as specifically provided herein, you shall neither have access to such information nor use any device, technique or software to obtain information from the Cellular Abroad Site. 4.3. If you desire to promote Cellular Abroad Services or Products (i) by purchasing, either directly or indirectly, search terms from websites, search engines or other directory or referral services (e.g., Overture, Google, and Yahoo!), (ii) by incorporating keyword text into meta tags or websites or by using other search engine optimization techniques, (iii) by distributing Cellular Abroad Emails, or (iv) by offering, either directly or indirectly, any consideration or incentives to potential customers including without limitation, payment of money, rebates, discounts or other benefits, you must first get written permission from us, which may be given or withheld in our sole and absolute discretion. We reserve the right to revoke such permission at any time for any or no reason whatsoever. 4.4. You shall not bid or otherwise purchase, either directly or indirectly, the search names "Cellular Abroad" “Talk Abroad” “National Geographic Talk Abroad Travel Phone” or any misspelling or variant thereof from websites, search engines or other directory referral services. 4.5. You shall not, in any way, utilize Spyware to promote the Cellular Abroad Service. You shall replace any Advertising displayed on your site with any new Advertising provided by Cellular Abroad within ten (10) days after receiving notice from us of the new Advertising. You shall not modify any Advertisement in any way. 4.6. Your site shall not in any way copy or resemble the look and feel of the Cellular Abroad Site, nor shall you create the impression that your site is the Cellular Abroad Site or a part of the Cellular Abroad Site. You shall not use Cellular Abroad or any variation or misspellings thereof in your URL. You shall not frame or permit the framing of any page of the Cellular Abroad Site. 4.7. During the Term, you will not disparage Cellular Abroad, the Cellular Abroad Site or the Cellular Abroad Service and Products or portray these in a derogatory or negative manner. The content of your website will, at all times, be in good taste. You are solely responsible for the development, operation and maintenance of your website and will indemnify, defend and hold Cellular Abroad harmless from any claims arising out of or related to your website. 4.8 Affiliate hereby warrants that it shall not use the Licensed Products in any manner which may, in Cellular Abroad’s judgment, be inconsistent with Cellular Abroad’s public image or which may in any way disparage or adversely affect Cellular Abroad or its reputation. 5. Subaffiliates and Agents If you operate subaffiliate networks, work with Agents or conduct reward programs with users, you agree to the following: 5.1. Any relationships you enter into with third parties, subaffiliates, or agents ("Agents") in connection with your promotion of the Cellular Abroad Service are at your sole discretion. Cellular Abroad shall not be a party to any agreement that you have with an Agent and you are not authorized to make any commitments on behalf of Cellular Abroad to such Agents, including commitments regarding payment of fees to the Agents by Cellular Abroad or commitments for licenses to Cellular Abroad's name, logo(s), any provided images, or other intellectual property. Agents are not third party beneficiaries of this Agreement with Cellular Abroad. Any breach by your Agents of the terms and conditions of this Agreement shall be deemed a breach of this Agreement by you and Cellular Abroad shall have full recourse against you with respect to such breach. In the event Cellular Abroad has approved your use of Cellular Abroad Emails, as required under this Agreement, that approval is personal to you only and may not be transferred to an Agent. An Agent may not send any Cellular Abroad Emails without separate approval from Cellular Abroad in each instance. 5.2. You will provide Cellular Abroad with an up-to-date list of your Agents (site name and url) upon request. 5.3. You agree to terminate your relationship with an Agent as it pertains to the Cellular Abroad Affiliate Partner Agreement if an Agent engages in any activity that is prohibited as provided by this Agreement or if requested by Cellular Abroad and if you do not terminate such Agent within five (5) business days from Cellular Abroad's request, Cellular Abroad reserves the right to withdraw you and all your Agents from the Affiliate Partner system and to refuse payment of any monies owing to you hereunder. 5.4. You agree not to use any of the information provided via the 3rd Party Tracking System nor technology to identify unique individual customer activity conducted by Cellular Abroad, nor to allow others to use the technology to identify such unique customer activity, nor to access such unique customer activity or data. You further agree not to transfer or reuse any data generated by the 3rd Party Tracking System. 5.5. You are solely responsible for technical implementation and maintenance of any linking technology or tracking parameters necessary to utilize the 3rd Party Tracking System technology. You are responsible for conducting appropriate testing and verification of the tracking parameters including link creation, click through, ordering, and reporting as necessary to insure correct and dependable operation of the tracking feature. You understand and agree that your failure to properly implement the 3rd Party Tracking System technology feature can and will result in an inability of Cellular Abroad to pay you commission, for which Cellular Abroad has no obligation. 6. Modification We may modify any of the terms and conditions contained in this Agreement at any time in our sole and absolute discretion. Modifications may include, but are not limited to, changes in commission, payment procedures, and permitted promotional activities. If any modification is unacceptable to you, your only recourse is to terminate this Agreement. Your continued participation in the Affiliate Partner Program following our posting of a change notice or new agreement on our site will constitute a binding acceptance of change. 7. Ownership of Advertising and Indemnification 7.1. Cellular Abroad represents that it is the owner of the Advertising and has all ownership or license rights with respect to the contents thereof. Cellular Abroad and Affiliate hereby acknowledge and agree that Affiliate shall have no responsibility with respect to the content of the Advertising supplied by Cellular Abroad hereunder. Any modifications to the Advertising made by Affiliate without the written consent of Cellular Abroad shall void the forgoing and Affiliate shall be liable for any damages arising there from. 7.2. Cellular Abroad shall defend, indemnify and hold Affiliate, its directors, officers, employees, agents, affiliates, successors and assigns harmless from and against any and all third party claims, liabilities, damages, losses, costs and expenses (including reasonable attorneys' fees) to the extent arising out of or related to any actual or alleged breach of this Agreement by Cellular Abroad, including without limitation any infringement of any copyright, trademark or other intellectual property right of any third party by the Advertising. 7.3. Affiliate shall defend, indemnify and hold Cellular Abroad, its directors, officers, employees, agents, affiliates, successors and assigns harmless from and against any and all third party claims, liabilities, damages, losses, costs and expenses (including reasonable attorneys' fees) to the extent arising out of or related to any breach or alleged breach of this Agreement by Affiliate, including without limitation any breach of Affiliate's obligations under Section 4 above, and the confidentiality obligations outlined in Section 11 below. 7.4. Any party seeking indemnification under this Section 7 shall promptly notify the indemnifying party in writing of the claim and shall reasonably cooperate with the indemnifying party with respect to such claim. The indemnifying party will be entitled to control the defense and settlement of any claim against which the other party seeks indemnification with counsel of its own choosing and at its own expense; provided that the indemnified party will be entitled to approve any non-monetary settlement. 7.5. The indemnity obligations under this Section 7 shall survive termination of this Agreement.
Except as expressly set forth herein, neither party makes any representations or warranties, express or implied, including any express or implied warranty of merchantability, fitness for a particular purpose, or non-infringement, or any representation or warranty as to any revenues or other economic or non-economic benefit that may accrue to the other party by reason of its participation in this Agreement. Furthermore, Cellular Abroad specifically makes no representation or warranty relative to the performance levels or continuous operation of the Cellular Abroad Site or the 3rd Party Tracking System Site. 9. Limitation of Liability NEITHER PARTY WILL BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION SHALL SURVIVE TERMINATION OF THIS AGREEMENT. 10. Public Announcements Neither party may make any public announcement about the terms of the Agreement without the other party's prior written approval and consent. The parties agree that there will be no press releases issued in connection with this Agreement and you may not identify or list Cellular Abroad as a provider of Advertising to you without prior written approval from Cellular Abroad. 11. Confidentiality Each party acknowledges that by reason of its relationship to the other party hereunder it will have access to certain information and materials concerning the other's business, plans, customers, technology, products and services that are confidential and of substantial value to the other party, which value would be impaired if such information were disclosed to third parties. In particular, the parties hereto acknowledge that the information regarding Customers obtained during the Term and the effectiveness of advertising hereunder are highly confidential and valuable to Cellular Abroad. Each party agrees that it shall not use in any way for its own account or the account of any third party, nor disclose to any third party, any such information revealed to it as a result of or arising out of the relationship hereunder (other than to fulfill its obligations under this Agreement). Each party shall take every reasonable precaution to protect the confidentiality of such information. This Section shall survive termination of this Agreement. Notwithstanding anything in this Section to the contrary, any information (i) required by legal process to be disclosed, (ii) already in the public domain or (iii) released through no fault of the parties will not be considered confidential information hereunder. 12. Cellular Abroad Payment and Payment Schedule You shall not be entitled to payment in the event that: (i) a purchase is offset, canceled, refunded, rebated, reduced or there is a similar deduction or allowance made to the purchase or Merchant has not received payment in full therefore from a customer (credit card authorization is pending, denied, disputed or otherwise); (ii) a customer cannot be tracked through the 3rd Party Tracking System, an error or omission exists due to underlying data or to any intentional or inadvertent deletion or disablement by You of any tracking code, technology, the Link or otherwise, or the customer does not complete the transaction via the Link made available to You; or (iii) any payment to You is returned as undeliverable. In the event that Customer has submitted to you any payment to which you are not entitled, you agree to provide a full and prompt refund to Customer. Each payment submitted to you hereunder shall be based upon a report setting forth, in reasonable detail, the number of Qualifying Sales, if any, completed during the prior month. If you dispute the content of any report provided hereunder, you shall notify Cellular Abroad, in writing, within ten (10) days following the end of such disputed month, after which time such report, and any payment related thereto, shall be deemed final and correct and uncontestable. Any dispute between Cellular Abroad and you regarding such report shall be investigated and resolved by and between Cellular Abroad and you. Commission will be paid as follows: Dual National Geographic Talk Abroad Travel Phone: $30.00 USD per transaction. Rental: (phone + included SIM) Dual National Geographic Talk Abroad Travel Phone: $20.00 USD per transaction. SIM Card only:
13. General Provisions 13.2. No waiver of any provision of this Agreement shall constitute a continuing waiver, and no waiver shall be effective unless made in a signed writing. 13.3. Notices and other communications to you, as required or permitted to be given hereunder, shall be posted on the Cellular Abroad Site and/or otherwise e-mailed to the e-mail address provided in your application and shall be deemed effective upon posting or e-mailing, as applicable. You are responsible for updating your contact information within the Cellular Abroad Affiliate Partner System, and Cellular Abroad has no responsibility for any inability to contact you due to obsolete or incorrect contact information or due to any spam filters or other communication blocking devices you may employ. Notice or other communications to Cellular Abroad shall be sent by e-mail to affiliates@cellularabroad.com and shall be deemed effective one business day after e-mailing. 13.4. This Agreement may not be assigned or otherwise transferred by you without the express written consent of Cellular Abroad. 13.5. The division of this Agreement into separate sections, subsections and/or exhibits and the insertion of titles or headings is for convenience of reference only and shall not affect the construction or interpretation of this Agreement. 13.6. You and Cellular Abroad are independent contractors and nothing in this Agreement will create any partnership, joint venture or agency relationship. You'll have no authority to make or accept any offers, warranties, or representations on our behalf. You will not make any statement, whether on your site or otherwise, that would cause confusion as to our relationship with you or otherwise contradict anything in this Section. 13.7. Each party hereby represents that it has the authority and capacity to enter into this Agreement, including that all individuals executing this Agreement are 18 years of age or older. The submission of your application shall constitute your agreement to be bound by the terms and conditions of this Agreement. Thank you, |