Smashwords Affiliate Marketing Program Agreement
Rev. May 25, 2009


SMASHWORDS AFFILIATE MARKETING PROGRAM DESCRIPTION

There are two methods of participation in the Smashwords Affiliate Marketing Program:

1. As an author/publisher content provider. Simply publish your ebooks with Smashwords, affix a price to them, and your books are automatically enrolled for marketing by third party affiliate partners. For affiliate sales, your net earnings percentage will be 70.5 percent, versus your ordinary rate of 85 percent for non-affiliate sales. If you want to provide affiliate marketers extra incentive to promote your books, you have the ability to “juice” the affiliate rate by accepting a lower net percentage for yourself. To manage your participation in the affiliate program as a content provider, go to your Dashboard at http://www.smashwords.com/dashboard. You can opt out as a content provider, but this is not recommended.

If you also want to earn commissions on the sale of other authors’ works on Smashwords, read #2 below, and then study this entire agreement before enrolling as an affiliate marketer.

2. As an affiliate marketer. This is the subject of this Affiliate Marketing Program Agreement. The Smashwords Affiliate Marketing Program allows independent Internet marketing professionals, web site operators, bloggers, authors, publishers and operators of online communities to direct traffic to Smashwords and earn commissions of 11 percent of net sales or greater on most book purchases. As mentioned above, Smashwords authors and publishers are welcome to enroll in the program. Although they do not earn extra margin on sales of their own books, they do earn affiliate commissions on sales of other qualifying books.

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THIS AGREEMENT (the "Agreement") is made by and between Smashwords, Inc. a California Corporation ("Smashwords"), and you (the "Affiliate," and collectively, the "Parties").

Affiliate's Acceptance of the Agreement.

Please read this agreement carefully before joining the Smashwords Affiliate Marketing Program. This agreement outlines your roles, responsibilities and legal requirements.

When you join the Smashwords Affiliate Marketing Program (SAMP), you acknowledge your full acceptance of this Agreement by clicking the button on the Smashwords website for “Sign Me Up!” You can opt-out of the program at any time by returning to the Affiliate Settings Overview page Smashwords and clicking “Additional Affiliate Controls.”

If you do not agree to be legally bound by the terms and conditions of this Agreement, then do not sign up for the program.


Smashwords Products and Services

Smashwords operates a free online publishing platform used by authors and publishers who publish electronic books (ebooks) in multiple DRM-free formats, readable on any e-reading device. These books are for sale in a Smashwords-operated online book store, featuring the ebooks of thousands of authors and publishers. This affiliate program allows affiliates to earn commissions on the sales of Smashwords ebooks.


Terms and Conditions

By joining the SAMP, Affiliate acknowledges their desire to market the books of Smashwords authors and publishers, using legal and ethical online marketing methods, including but not limited to web site hyperlinks, blog hyperlinks, hyperlinks in opt-in mailing lists, hyperlinks in paid search engine advertising, and hyperlinks in online communities owned and operated by Affiliate;

In consideration of this affiliate agreement, and all the promises and commitments made herein, the Parties agree as follows:


Obligations of Smashwords:

1. Furnish the Affiliate digital products to promote: Smashwords will make available to Affiliate a complete list of all promotable books on the Smashwords.com website, and will make available all necessary instructions so that Affiliate may link to the various author pages, publisher pages, book pages, search pages, and other such pages and metadata so that the Affiliate may expose their customers and traffic to relevant, purchasable books.

2. Promotional tools: Smashwords will provide Affiliates the non-exclusive right to utilize various Smashwords promotional tools such as Smashwords logos, Affiliate data feeds, Application Programming Interfaces (APIs), author and publisher book cover images, book descriptions, author bios, author headshots, hyperlink addresses, and other associated metadata and book samples. Although Smashwords has not yet implemented widgets, at the time Smashwords does implement widgets such widgets will be available to Smashwords Affiliates for marketing purposes.

3. Payment of Commissions: Smashwords agrees to pay commissions, under the rates, policies and procedures disclosed in this agreement, to the Affiliate, provided the Affiliate honors its obligations under the agreement.

4. Customer Support: Smashwords manages all customer support.


Obligations of Affiliate:

1. Agreement to promote: The Affiliate, by joining the SAMP, agrees to promote Smashwords products and services.

2. Agreement to abide by legal and ethical marketing guidelines: The Affiliate agrees to promote Smashwords books utilizing legal and ethical marketing practices. The following list provides a sample of prohibited and unethical marketing practices, which, if used by the Affiliate, will result in immediate termination of this affiliate agreement and the complete forfeiture of all accrued commissions:


A. The Affiliate agrees not to use unsolicited spam email, or engage the services of third party spammers or their associates, to directly or indirectly drive traffic to the Smashwords website, or to drive traffic to sites operated by Affiliate or its associates used to drive traffic to Smashwords. Similarly, Affiliate agrees not use the Smashwords brand name, or Smashwords promotion tools (see below for definitions) in any unsolicited email.

B. The Affiliate further agrees to not utilize any deceptive marketing practices, such as black hat SEO practices designed to trick search engines or manipulate search engine rankings.

C. The Affiliate agrees not to use or benefit from spyware, malware, exploits or botnets in its efforts to drive traffic to Smashwords.

D. The affiliate agrees to not use deceptive practices such as “shadow domains” or “doorway” pages to aggregate traffic and drive it to Smashwords. If the Affiliate uses any SEO practices that Google finds objectionable (see http://www.google.com/support/webmasters/bin/answer.py?hl=en&answer=35291), they are not allowed to participate in the SAMP

E. The affiliate agrees not to require, request of, or trick, potential Smashwords visitors to provide their email address to any party as a condition to being directed to Smashwords web pages. Similarly, the affiliate will not collect payments, or charge users or other parties, for access to the Smashwords web site or to view Smashwords books and book samples.

F. The affiliate agrees not to use confusing or deceptive domain names (such as domains that contain “Smashwords” or variations or misspellings of “Smashwords”), or domains that contain words meant to trick search engines or users.

G. The affiliate agrees to not place affiliate hyperlinks in unsolicited (spam) email, blog comments (comment spam) for blogs you do not author or operate, guestbook forms, newsgroups, and message board communities. Exception to items noted in "G.": links are permitted in personal profiles and signatures, provided the operator of the community or social network permits them.


3. Use of Smashwords promotion tools. Affiliate may only use approved Smashwords promotional tools to promote Smashwords products and services. These materials cannot be used for any purpose other than to promote Smashwords books, authors and website. The license to utilize Smashwords-provided promotional tools is non-transferable and non-exclusive. The term of the licenses expires upon the termination of this agreement by either Party.

4. Intellectual Property. Smashwords retains all rights and ownership over promotional tools, as well as all copyrights and trademarks associated with the tools.

5. Relationship between Affiliate and Smashwords. This Agreement does not create an employment relationship, agency relationship, or partnership between Smashwords and Affiliate. The Affiliate works on their own behalf as an independent contractor in exchange for referral fees earned by pointing ebook customers to Smashwords. The Affiliate has no authority or ability to enter Smashwords into any other agreement outside of this Affiliate agreement or create agreements or relationships on behalf of, or between, Smashwords and other parties.

6. Breach of contract. By joining this Affiliate program, the Affiliate agrees and accepts that if the Affiliate makes any material breaches of the Affiliate Requirements outlined in this agreement, or makes blatant misrepresentations about the nature of this Affiliate agreement between the Parties, then Smashwords will immediately terminate the agreement and the Affiliate will forfeit all accrued commissions.


Determining Commissions

1. Calculation of Commissions, and definition of “Net.” Smashwords will pay Affiliate commissions based on actual qualified net sales (see section 3 below for definition of “qualified.”), net of cancellations, customer refunds, incomplete transactions and fraudulent charge-backs. Affiliate commissions for participating titles are accrued at a rate of 11 percent of net sales, where “Net” = (selling price - Paypal transaction fee)*11%). The affiliate rates are clearly disclosed on the Smashwords web site, and are subject to change. If Smashwords pays the affiliate for sales that are later proven fraudulent, or for sales that must later be refunded to the customer for any reason, the Affiliate agrees to remunerate Smashwords via FedExed paper check within 48 hours of receiving notification from Smashwords provided the amount owed to Smashwords, net of other valid accrued commissions, is greater than USD $75.00.

2. Juicing. Smashwords allows its authors and publishers to “juice” affiliate commissions for their titles, in order to provide extra incentive for Affiliates to promote these titles. In such instances, it’s possible for the Affiliate commission to rise from the baseline 11 percent to as high as 81.5%. Smashwords authors and publishers who “juice” must commit to the new Affiliate rate for a minimum of one calendar month, so that Affiliates can plan their promotions accordingly. Rates are subject to resets on the first of every month, so Affiliates who want to take advantage of such juiced specials should visit the Affiliate Management page on the first day of the month to learn about current Affiliate specials.

3. Qualified sales. Qualified sales are those sales for which the Affiliate is entitled to receive a commission. All Smashwords authors and publishers are automatically enrolled in the Affiliate program, thereby making their books available for sales by, and commission to, affiliates. However, Smashwords allows authors and publishers to opt-out of the affiliate program if they choose. Based on surveys Smashwords conducted with authors prior to launching the Affiliate program, Smashwords expects fewer than five percent of authors and publishers to opt out of the program, however Smashwords cannot make any guarantees or assurances that this will always be the case.

a. Smashwords sells books through the Stanza e-reading app, and these sales are not qualified sales for Affiliates.


b. Although Smashwords authors, publishers and members are allowed to join the Smashwords Affiliate Marketing Program, authors and publishers, sales of their own books do not qualify for Affiliate commissions. However, the author and publisher Affiliates do qualify for commissions on other qualified sales.


4. Payments schedule. Smashwords pays affiliates on the same schedule it pays authors and publishers. Affiliates who reside outside the United States may be subject to higher threshold amounts. See the Smashwords Terms of Service at http://www.smashwords.com/about/tos because these dates are subject to change. It is Smashwords’ intention to shorten the payment cycle over time, though we are unable to commit to the exact date such changes may take place.

5. Record keeping. Smashwords shall maintain accurate and timely reports of commissions earned by Affiliates, and these reports will be accessible from the Affiliate’s Dashboard controls on the Smashwords website.

6. Tracking sources of traffic. Affiliates are provided affiliate codes they append to hyperlinks. When an affiliate directs a visitor to the Smashwords web site, Smashwords deposits a cookie in that visitor’s web browser that identifies the visitor to Smashwords as having come from the Affiliate. The cookie expires after 48 hours, or if it is replaced by the cookie of another affiliate. During of 48 hour period of time for which the cookie is active, all purchases made by that customer on the Smashwords web site earn the Affiliate a credit, provided the purchased products are participating in the Affiliate program. Smashwords discloses a complete list of books that do not qualify for Affiliate fees on the Smashwords Affiliate Management page. Smashwords is not responsible for lost or deleted cookies, or for cookies that fail to land in the referred user’s browser due to any number of factors outside of Smashwords’ control, which may include anti-cookie software, purged cookies, or technical errors of Smashwords.

7. Affiliate audits. Smashwords affiliates are welcome to perform independent audits of Smashwords traffic tracking and sales reporting by purchasing books on their own (sorry, Smashwords cannot remunerate Affiliates for the expense, other than the Affiliate fee earned by the transaction). If an Affiliate learns of a bug or discrepancy, please contact Smashwords so we can quickly investigate, confirm, and resolve the problem.

 

Representations and Warranties:

1. Affiliate has the legal authority to enter into this Agreement and to be bound to the promises, covenants, and other duties set forth in this Agreement.

2. Affiliate's website does not and will not contain any content that:

a. is offensive, profane, hateful, threatening, harmful, defamatory, libelous, harassing, or discriminatory (whether based on race, ethnicity, creed, religion, gender, sexual orientation, physical disability, or otherwise);

b. contains graphically violent images, including any violent video game images; or

c. advocates unlawful behavior

d. hosts, lists or promotes pirated content that violates the copyright or intellectual property of other parties

e. contains pornographic images of children, or any content or images advocating child exploitation

f. contains tips or instructions on how to break or circumvent DRM-protected content (although Smashwords does not sell, list or promote DRM-protected content, we respect the right of non-Smashwords content publishers to use DRM if they choose).

g. contains spyware, malware, fake security software downloads, or hidden iframes that spread malware


3. Affiliate has obtained any necessary rights and licenses for material presented on Affiliate's website, and the site doe not infringe on the intellectual property rights of others.

4. If the Affiliate is an individual person, the Affiliate represents and warrants they are at least 18 years of age on the date in which the Affiliate joins the program.

5. Indemnification. Affiliate shall indemnify Smashwords and hold harmless Smashwords from any claim, damage, lawsuit, action, complaint, or other costs arising out of any breach of Affiliate's warranties set forth above. Affiliate shall also indemnify and hold harmless Smashwords for any damage, loss or other cost arising out of the use or misuse by Affiliate of the Promotional Materials.

6. Term.
This Agreement shall take effect upon acceptance of the agreement, as signified by the Affiliate clicking on the “Sign me up now” button, and shall remain in full force and effect indefinitely, or until terminated by Smashwords or the Affiliate. Smashwords retains the right to cancel this agreement at any time with or without cause. If the agreement is cancelled by Smashwords for an affiliate in good standing, Smashwords is obligated to pay the affiliate all accrued earnings during the next regular payment period. Additionally, Smashwords retains the right to materially modify the terms in the future. In the event of such modifications, on a best efforts basis Smashwords will attempt to provide Affiliates up to 30 days advance notice, however, Smashwords is not obligated to provide advance notice.

7. CAN-SPAM Act. Affiliate using online or other electronic methods of sales channels must comply with the 2003 CAN-SPAM Act and other subsequent Federal Trade Commission rules regarding online marketing. Read the act here. Affiliate agrees that Smashwords will terminate the Affiliate agreement if such rules are not followed.

8. Taxes. Smashwords shall not be responsible for any taxes owed by Affiliate arising out of Affiliate's relationship with Smashwords as set forth in this Agreement. Smashwords shall not withhold any taxes from the Commissions paid to Affiliate. Before Smashwords will pay commissions to any affiliate, the Affiliate must provide, via an online form at Smashwords, data necessary for Smashwords to complete Internal Revenue Service Form W-9 for US citizens and other tax disclosure rules for residents outside the US. By submitting this information, Affiliate certifies that the tax id number provided is correct and accurate and that Affiliate is not subject to backup withholding.

9. Limitation of Liability. Smashwords shall not be liable for any loss of profits or costs, or for any direct, indirect, special, incidental or consequential damages, including costs associated with the procurement of substitute goods or services, customer refunds made at Smashwords’ discretion, or any other lost Affiliate income arising out of or associated with any loss, suspension or interruption of service, termination of this Agreement, use or misuse of the Promotional Materials, or other performance of services under this Agreement.

10. Governing Law. This Agreement shall be construed in accordance with, and governed in all respects by, the laws of the State of California.

11. This agreement between Affiliate and Smashwords supercedes all prior or subsequent written and verbal agreements or communications between Affiliate and Smashwords regarding the terms of this Affiliate relationship.

12. Severability. If any part or parts of this Agreement shall be held unenforceable for any reason, the remainder of this Agreement shall continue in full force and effect. If any provision of this Agreement is deemed invalid or unenforceable by any court of competent jurisdiction, and if limiting such provision would make the provision valid, then such provision shall be deemed to be construed as so limited.

13. Report affiliate abuse. If you believe a Smashwords affiliate is abusing the terms of this agreement, please contact Smashwords as soon as possible with detailed evidence and hyperlinks. Please address such reports to support at you know where dot com.

14. Headings. The headings for sections herein are for convenience only and shall not affect the meaning of the provisions of this Agreement.

15. Smashwords Corporate Address. Any notice required or otherwise given pursuant to this Agreement shall be in writing and mailed certified return receipt requested, postage prepaid, or delivered by overnight delivery service, addressed as follows:

Smashwords, Inc.
Affiliate Program Management
15951 Los Gatos Blvd., Ste 16
Los Gatos, CA 95032
USA

Additional questions, comments, suggestions? Email Smashwords at support at you know where dot com


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