Sim Systems Affiliate Agreement

This Agreement contains the complete terms and conditions that apply to an individual's or entity's participation in the Affiliate Program on Simtext.com (the "Program"). As used in this Agreement, "we" (and "us" and "our") means Sim Systems Ltd (a company registered in England) and "you" (and "your") means the applicant. "Site" means a World Wide Web site and, depending on the context, refers either to our site at http://www.simtext.com or to your site.

1. Enrolment in the Program

To begin the enrolment process, you need to submit a complete Program application via our site. We will evaluate your application in good faith and will notify you of your acceptance or rejection. We may reject your application if we determine (at our sole discretion) that your site is unsuitable for the Program. Unsuitable sites include, but are not limited to, those that:

  • promote sexually explicit materials
  • promote violence
  • promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age
  • promote illegal activities
  • breach intellectual property rights
  • include 'Simtext', 'Sim Street', 'Simblog', 'Secure Text', 'Sim Systems' or variations or misspellings thereof in their domain names

If we reject your application, you are welcome to reapply to the Program at any time. You should also note that if we accept your application and your site is thereafter determined (at our sole discretion) to be unsuitable for the Program, we may terminate this Agreement. Participation in the Program is limited to parties that lawfully can enter into and form contracts under applicable law. For example, minors are not allowed to participate in the Program.

2. Links on Your Site

We grant you a revocable, non-exclusive, worldwide, royalty-free license for the duration of the term of this Agreement, solely for purposes of facilitating referrals from your site to our site, to establish and maintain lists, links and search boxes as contemplated below: We grant you a revocable, non-exclusive, worldwide, royalty-free license for the duration of the term of this Agreement, solely for purposes of facilitating referrals from your site to our site, to establish and maintain lists, links and search boxes as contemplated below:

2. Links on Your Site

We grant you a revocable, non-exclusive, worldwide, royalty-free license for the duration of the term of this Agreement, solely for purposes of facilitating referrals from your site to our site, to establish and maintain lists, links and search boxes as contemplated below:

You may provide a general link on your site to our homepage http://www.simtext.com. We will provide you with guidelines and graphical artwork to use in linking to our pages.

To permit accurate tracking, reporting, and Revenue Share-fee accrual, we will provide you with special "tagged" link formats to be used in all links between your site and our site. You must ensure that each of the links between your site and our site properly utilizes such special link formats. Links to our site placed on your site pursuant to this Agreement and which properly utilize such special link formats are referred to as "Special Links." You will earn Revenue Share fees only with respect to activity on our site occurring directly through Special Links; we will not be liable to you with respect to any failure by you to use Special Links, including to the extent that such failure may result in any reduction of amounts that would otherwise be paid to you pursuant to this Agreement.

You acknowledge that, by participating in the Program and placing any of the above links within your site, we may receive information from or about visitors to your site or communications between your site and those visitors. Your participation in the Program constitutes your specific and unconditional consent to and authorization for our access to, receipt, storage, use, and disclosure of any and all such information, consistent with the policies and procedures set forth in our Updated Privacy Notice.

Except for the license granted under this Section 2, you do not obtain any rights under this Agreement in any intellectual property, including, without limitation, any intellectual property with respect to the Special Links, link formats, technical specifications, guidelines or graphical artwork referenced above, or with respect to the Simtext.com or other Simtext domain names.

In addition, you acknowledge that we may crawl or otherwise monitor your site for the purpose of ensuring the quality and reliability of Special Links on your site (for example, to detect links that are broken or non-functional). Therefore, you agree that we may take such actions and that you will not seek to block or otherwise interfere with such crawling or monitoring (and that we may use technical means to overcome any methods used on your site to block or interfere with such crawling or monitoring).

Further, you acknowledge and agree that you will: (a) use any data, images, text, or other information obtained by you from us or our site in connection with this Agreement ("Content") only in a lawful manner and only in accordance with the terms of this Agreement; (b) not modify or alter any Content that consists of a graphic image, other than to resize it; (c) not edit any Content that consists of text, other than to shorten its length; (d) not sell, redistribute, sublicense or transfer any Content; (e) not use any Content in a manner intended to send sales to any site other than the Simtext.com Site; and (g) promptly delete any Content that is no longer displayed on the Simtext.com Site or that we notify you is no longer available for your use.

3. Order Processing

We will process Simtext subscription registrations of customers who follow Special Links from your Site to the Simtext.com Site. We reserve the right to reject registration requests that do not comply with any requirements that we periodically may establish. We will be responsible for all aspects of registration processing. Among other things, we will prepare the registration forms, process payments, cancellations and renewals; and handle customer service. We will track the billing messages sent to customers who registered for Simtext using Special Links from your site to our site and will make available reports summarizing this billing activity. The form, content and frequency of the reports may vary from time to time at our discretion. To permit accurate tracking, reporting and fee accrual, you must ensure that the Special Links between your site and our site are properly formatted. We will not be liable for paying Revenue Share fees on subscriptions that are not correctly tracked and reported because the links between your site and our site are not properly formatted.

4. Revenue Share Fees

In consideration for the advertising services provided by you under this Agreement we will pay you Revenue Share Fees on certain Product sales to third parties in accordance with sections 5 and 6 below. For a Simtext subscription to generate a Revenue Share fee, the customer must register for the Simtext service using an identifier allocated to you by us, and be subsequently billed for the service. We will only pay Revenue Share fees on subscriptions once billing has occurred, note this will be after any free trial period. We will not pay Revenue Share fees on any subscriptions that are initiated by the customer on Simtext.com, after the customer has re-entered our site (other than through a Special Link from your site), even if the customer previously followed a link from your site to our site.

In addition, you may not: (a) read, intercept, record, redirect, interpret, or fill in the contents of any electronic form or other materials submitted to us by any person or entity; (b) in any way modify, redirect, suppress, or substitute the operation of any button, link, or other interactive feature of our site; (c) make any subscription requests, or engage in other transactions of any kind on our site on behalf of any third party, or authorize, assist, or encourage any other person or entity to do so; (d) take any action that could reasonably cause any customer confusion as to our relationship with you, or as to the site on which any functions or transactions are occurring; or (e) attempt to circumvent the Revenue Share fee schedule or artificially increase your Revenue Share fees (e.g. by causing any page of the Simtext.com Site to open in a customer's browser other than as a result of the customer clicking on a Special Link on your Site); (f) attempt to intercept or re-direct (including, without limitation, via user-installed software) traffic from or on, or divert Revenue Share fees from, any web site that participates in the Program; or (g) seek to purchase or register any keywords, search terms or other identifiers that include the word "Simtext", ?Sim Street?, ?SimBlog?, ?SecureText?, ?Sim Systems? or variations thereof (for example "Symtext", "SimTXT", etc.) ("Proprietary Terms") for use in any search engine, portal, sponsored advertising service or other search or Revenue Share service. From time to time we may request that you cause any applicable Web search provider to exclude Proprietary Terms from keywords used to display your advertising content in association with search results, assuming the provider of such Web search engine offers such exclusion capabilities. If we determine, in our sole discretion, that you have engaged in any of the foregoing activities or, as the case may be, refused promptly to comply with a request from us to exclude Proprietary Terms from any keyword as mentioned above, or have violated any other term of this Agreement, we may (without limiting any other rights or remedies available to us) withhold any Revenue Share fees otherwise payable to you under this Agreement and/or terminate this Agreement.

5. Revenue Share Fee Schedule

During each calendar month, for billing from Simtext Subscriptions registered by the customer using the identifier allocated to you by us, you will earn (subject to the other terms of this Agreement) Revenue Share fees in accordance with the Fee Structure described below

Fee Structure:

Subject to the other terms of this Agreement, you will earn a percentage of Qualifying Net Revenues (defined below) from Simtext subscriptions registered by the customer using the identifier allocated to you by us.

"Qualifying Net Revenues" are revenues derived by us when we bill our customer for their subscriptions to the Simtext service, after costs for delivery and information messages, taxes, service charges, credit card processing fees, refunds and bad debt.

'Simtext Subscriptions' are subscriptions to the Simtext mobile service.

6. Fee Payment

We will pay you Revenue Share fees on a monthly basis provided that we will only pay your Revenue Share fees and applicable EU VAT (if any) upon presentation of a valid VAT invoice.

Approximately 60 days following the end of each calendar month, we will send you payment for the Revenue Share fees earned for the billing of Simtext Subscriptions during that month, less any taxes that we are required by law to withhold.

We will pay your Revenue Share fees by directly depositing them into your bank account. You will have to provide us with the name of your bank, the bank account type, the sort code, the account number and the primary account holder name as it appears on the bank account. If any bank details we hold are at any time incorrect, we will defer payment of Revenue Share fees until the calendar month in which the bank details are corrected).

We will not pay Revenue Share fees in any month that the amount due is less than £25.00 and any amounts less than £25.00 shall not be carried forward to subsequent months. All payments under this Agreement will be made in Great British Pounds sterling.

7. Policies and Pricing

For the avoidance of doubt, customers who register for Simtext?s service through this Program will be customers of the Simtext.com Site. Accordingly, all Simtext.com Site rules, policies and operating procedures concerning customer subscriptions and customer service will apply to those customers. We may change our policies and operating procedures at any time. For example, we will determine the prices to be charged for subscriptions sold under this Program in accordance with its own pricing policies. We will use commercially reasonable efforts to present accurate information, but we cannot guarantee the availability or price of any particular service.

8. Identifying Yourself as an Affiliate

You may not issue any press release with respect to this Agreement or your participation in the Program without our prior written consent, which may be given or withheld in our sole discretion. Doing so may result in your termination from the Program. You may contact us if you wish to apply for written consent. In addition, you may not in any manner misrepresent or embellish the relationship between us and you, or express or imply any relationship or affiliation between us and you or any other person or entity except as expressly permitted by this Agreement. We will make available to you a small graphic image that identifies your site as a Program participant. You must display this logo or the phrase "In association with Simtext.com" somewhere on your site. We may modify the text or graphic image from this notice from time to time.

9. Limited License

We grant you a nonexclusive, revocable right to use the graphic image and text described in Section 8 and such other text or images for which we grant express permission, solely for the purpose of identifying your site as a Program participant and to assist promotion of the Simtext service. You may not modify the graphic image and text or any of our images in any way. We reserve all of our rights in the graphic image and text, any other images, our trade names and trademarks, and all other intellectual property rights. We may revoke these rights at any time by giving you written notice.

10. Responsibility for Your Site

You will be solely responsible for the development, operation and maintenance of your Site and for all materials that appear on your Site. For example, you will be solely responsible for:

  • the technical operation of your site and all related equipment;
  • creating and posting Service descriptions on your Site and linking those descriptions to the Simtext.com Site using Special Links;
  • the accuracy and appropriateness of materials posted on your Site (including, among other things, all Service related materials)
  • ensuring that materials posted on your Site do not breach or infringe upon the rights of any third party (including, for example, copyrights, trademarks, database rights, privacy or other personal or proprietary rights);
  • ensuring that materials posted on your Site are not defamatory or illegal.

We disclaim all liability for these matters. Further, you will indemnify and hold us and our harmless from all claims, damages and expenses (including, without limitation, legal fees) relating to the development, operation, maintenance and contents of your Site.

11. Term of the Agreement

The term of this Agreement will begin upon our acceptance of your Program application and will end when terminated by either party. Either you or we may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination. You are only eligible to earn Revenue Share fees on billing for Simtext Subscriptions occurring during the term and fees earned up to the date of termination. Upon termination of this Agreement, you must immediately cease use of, and remove from your Site, all links to the Simtext.com Site and all Simtext trademarks, trade names and logos and all other material by or on behalf of us to you in connection with the Program.

12. Modification

We may modify any of the terms and conditions contained in this Agreement, at any time and at our sole discretion, by posting a change notice or a new agreement on our site. Modifications may include, for example, changes in the scope of available Revenue Share fees, fee schedules, payment procedures and Program rules. If any modification is unacceptable to you, you must contact Sim Systems Ltd within 30 days. After this period, your continued participation in the program following our posting of a change notice or new agreement on our site will constitute binding acceptance of the change.

13. Relationship of Parties

You and we are independent contractors and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. You will have no authority to make or accept any offers or representations, guarantees or warranties on our behalf, including with respect to our services. You will not make any statement or representation, whether on your site or otherwise, that that reasonably would contradict anything in this section.

14. Limitation of Liability

We will not be liable for loss of business, profits, revenue or data, or any indirect, special, or consequential damages arising in connection with this Agreement or the Program, even if we have been advised of the possibility of such damages. Further, our aggregate liability arising with respect to this Agreement and the Program will not exceed the total Revenue Share fees paid or payable to you under this Agreement at the time that the event giving rise to the liability arises.

Notwithstanding the previous paragraph, nothing in this Agreement will operate to exclude any liability for death or personal injury arising as a result of the negligence of either party, its employees, agents or authorized representatives, or any liability which may not be excluded or limited under the applicable law.

15. Disclaimers

To the fullest extent permitted by law, we make no express or implied warranties or representations with respect to the Program or any Services sold through the Program (including, without limitation, warranties of fitness, merchantability, non-infringement or any implied warranties arising out of a course of performance, dealing, or trade usage), and the same are hereby excluded. In addition, we make no representation that the operation of our site or services will be uninterrupted or error-free and none of us will be liable for the consequences of any interruptions or errors.

16. Independent Investigation

YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU UNDERSTAND THAT WE MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) SOLICIT CUSTOMER REVENUE SHARES ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT OR OPERATE WEB SITES THAT ARE SIMILAR TO OR COMPETE WITH YOUR WEB 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.

17. Miscellaneous

This Agreement will be interpreted, construed and enforced in all respects in accordance with the laws of England without reference to the rules governing choice of laws, and you irrevocably submit to the non-exclusive jurisdiction of the Courts of England. You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of and enforceable against the parties and their respective successors and assigns. Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement. Notwithstanding any other provision in this Agreement, nothing in this Agreement is intended to confer on any third party any right to enforce any terms of this Agreement