Skysa Affiliate Program Terms and Conditions

Skysa Affiliate Program Terms and Conditions Effective Date: June 2nd, 2010

A Violation of any of the below Terms of Service will result in action by Skysa up to and possibly including the termination of your affiliate account(s), with or without warning.

ACCEPTANCE OF TERMS

This Affiliate Program Agreement (the "Agreement") is a legal agreement and contains all of the terms and conditions between Skysa and you, together with any company or other business entity you are representing, if any, (collectively, the "Affiliate") who is participating in the Skysa Affiliate Program (the "Program"). BY REGISTERING FOR THIS PROGRAM THE AFFILIATE AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. If you do not agree to the terms of this Agreement do not register for the Program.

By accepting the terms of this Agreement, Affiliate agrees that Skysa may change the terms of this Agreement in its sole discretion at any time provided that Skysa provides Affiliate with notice of any such change. If Affiliate does not agree to the changes proposed by Skysa, or to any terms in this Agreement, Affiliate's sole and exclusive remedy is to cancel Affiliate's participation in the Program. Notwithstanding the foregoing, Skysa reserves the right to terminate, cancel, suspend or refuse access to the Program to anyone in its sole discretion. Unless explicitly stated otherwise, any new features or products that change, augment or enhance the current Program shall be subject to this Agreement.

SUBSCRIBER REFERRAL AND REGISTRATION

Skysa Affiliate Link. Affiliate may be eligible for certain commissions for every Subscriber Affiliate refers to Skysa. To be eligible for such commissions, each referral must originate from a specially-coded Skysa Affiliate Link. For purposes of this Agreement, "Skysa Affiliate Link" means a visible graphic or textual indication which, when selected by an end user, directs the end user's Internet browser connection to a Skysa-specified page or file via a URL and which establishes a direct connection between the browser and the Skysa-specified page or file. Affiliate shall place the Skysa Link on the Affiliate website or otherwise provide the Skysa Affiliate Link to a respective Subscriber, which will allow Skysa to track any person, entity or otherwise who clicks through the Skysa Affiliate Link to register for the Skysa Services.
Linking to Skysa. The necessary electronic graphic artwork and corresponding links to Skysa' website and all HTML thereto for the Skysa Affiliate Link shall be available to Affiliate via Skysa.com. Such link may only be in the form of text, a button, a banner or any other format provided by Skysa. Affiliate shall not modify or alter the Skysa Affiliate Link without prior written consent of Skysa. The HTML for such link will also include a special promotion identifier that enables the tracking and reporting of all Subscribers acquired through the Skysa Affiliate Link. Affiliate is responsible for integrating the Skysa Affiliate Link into Affiliate's website properly and for providing the Skysa Affiliate Links to Subscriber in the proper format, which includes ensuring that, as between the Skysa Affiliate Links and the Skysa website, each of the Skysa Affiliate Links properly utilizes the aforementioned special identifier link formats. Skysa SHALL NOT BE LIABLE TO AFFILIATE WITH RESPECT TO AFFILIATE'S FAILURE TO PROPERLY INTEGRATE THE Skysa AFFILIATE LINK, INCLUDING TO THE EXTENT THAT SUCH FAILURE MAY RESULT IN ANY REDUCTIONS OF COMMISSION FEES (AS DEFINED BELOW) THAT WOULD OTHERWISE BE PAYABLE TO AFFILIATE UNDER THIS AGREEMENT.
Tracking and Reporting. For the purposes of this Agreement, tracking and reporting will be provided by Skysa. During the term of this Agreement, Affiliate will be provided a unique ID and password which will permit Affiliate access to password-protected Web pages located at http://www.Skysa.com so that Affiliate may receive statistics regarding the number of Subscribers that originated from the Skysa Links. The reports available on Linkshare will also detail the Commission Fees that are due to Affiliate in accordance with the Fee Schedule (as defined below). The form, content and timing of the foregoing reports may vary from time to time in Skysa' sole discretion. Affiliate agrees and acknowledges that the statistics and reports provided by Skysa.com are the official, definitive and final measurements of the number of Subscribers that have originated from the Skysa Affiliate Link as well as the fees payable to Affiliate from Skysa pursuant to the terms of this Agreement.

LICENSE RIGHTS.

License Grant of Skysa Affiliate Link. Subject to all the terms and conditions of this Agreement, Skysa hereby grants to Affiliate a restricted, non-exclusive, non-transferable license to use and publicly display the Skysa Link, solely for their receipt, access, use and viewing in the manner described herein. Skysa retains all rights, title, and interest in and to all of the copyrights, patent rights, trademark rights and other proprietary rights to the Skysa Affiliate Links pursuant to this Agreement.
Skysa Affiliate Link License Restrictions. In addition to any other restrictions herein on the use of the Skysa Link, Affiliate agrees to the following: (i) Affiliate shall not access, transmit, display or otherwise make available (or allow end users or any other third party to transmit or make available) Skysa Link to any third party, except as explicitly provided herein; (ii) Affiliate shall not alter, delete or modify any attributions included within the Skysa Affiliate Link; (iii) Skysa shall have the right, in its reasonable discretion and upon notice to Affiliate, to require Affiliate to immediately cease any and all use of any particular Skysa Affiliate Link: and (iv) Affiliate may not impose any separate charges or fees for use or access to the Skysa Affiliate Link.
License Grant of Skysa Logos. Subject to all the terms and conditions of this Agreement, Skysa hereby grants Affiliate a nonexclusive, non-transferable license to use the Skysa trademarks, logos, and copyrighted material ("Skysa Marks") solely on the Affiliate's website and solely in connection with this Agreement. Affiliate hereby acknowledges and agrees that (i) the Skysa Logos are owned solely and exclusively by Skysa or its subsidiaries, (ii) except as set forth herein, Affiliate has no right, title or interest in or to the Skysa Logos; and (iii) all use of the Skysa Logos by Affiliate shall inure to the benefit of Skysa and its subsidiaries. Affiliate agrees that it shall not engage, participate or otherwise become involved in any activity or course of action that diminishes and/or tarnishes the image and/or reputation of Skysa or of any Skysa Logo.
Use and Display of Skysa Logos. Affiliate acknowledges and agrees that the presentation and image of Skysa Logos should be uniform and consistent with respect to all services, activities and products associated with the Skysa Logos. Accordingly, Affiliate agrees to use the Skysa Logos solely in the manner in which Skysa shall specify from time to time in Skysa' sole discretion.
Marketing Practices. With respect to soliciting Subscribers and marketing the Skysa Services, all advertising and promotional materials are subject to the terms of this Agreement. Skysa may request to review and approve any Affiliate’s marketing materials, including but not limited to any e-mails or e-mail campaigns. Affiliate further agrees: (i) to be solely responsible for all expenses and fees incurred in connection with the participation in the Program; (ii) use best efforts to successfully market, advertise and sell Skysa Services during the term of this Agreement; (iii) not engage in any deceptive, misleading, illegal, or unethical practices that may be detrimental to Skysa or its products or services; (iv) not make any representations, warranties, or guarantees on behalf of Skysa, or otherwise concerning Skysa Services that are inconsistent with or in addition to any such representations, warranties, or guarantees made by Skysa; and (v) use the then-current name as used by Skysa (but will not represent or imply that Affiliate is an employee, part of, or affiliated with Skysa).
Search Marketing Restrictions. Affiliate agrees not to bid on words which may include or be related to Skysa Logos or similar terms, which may include but not be limited to, “Skysa,” “Skysa.com,” “www.Skysa.com,” or “Skysa Bar".
Loyalty Program and Incentive Offers Restrictions. In the event that Affiliate wishes to offer prizes, points or cash offers as incentives or as part of a loyalty program, Affiliate shall provide Skysa with written notice of its intent to implement any such program (“Incentive Program Notice”). Upon receipt of such Incentive Program Notice, Skysa in its sole discretion shall provide approval for any such program and may modify the Affiliate’s commission payment and conditions.

EMAIL RESTRICTIONS

Affiliate will create a process by which email recipients may opt-out of receiving future email from Affiliate. Affiliate must have the necessary processes in place to immediately remove such email address from its email list. Among other things, Affiliate must maintain a do not email list and every opt-out request must be placed on this list.
If Affiliate intends to generate email through a third party supplier, Affiliate must disclose the identity of that supplier to Skysa. Affiliate is responsible for all emails generated on Affiliate’s behalf by a third party and such emails must comply with all requirements set forth in this Agreement.
Affiliate must comply in all respects with the CAN-SPAM Act of 2003. Among other things, Affiliate must have all lists scrubbed against its do not email list before any email campaign begins and at least every 10 days during each campaign.
Skysa may request that Affiliate immediately stop any email campaign containing Skysa Content or Skysa Logos, for any reason, in its sole discretion.

AFFILIATE REPRESENTATIONS AND WARRANTIES

Affiliate represents and warrants that:

Affiliate has the full and legal power and authority to enter into this Agreement, and/or to perform its obligations hereunder.
By entering into this Agreement, Affiliate does not violate any other agreement by which Affiliate is bound.
With respect to any performance hereunder, Affiliate shall comply with good business practices and all applicable laws, regulations and rules of any government body or agency or other competent authority.
Affiliate will comply with the applicable then-current Member Agreement.
Any website created or built by Affiliate shall not include (i) pornography or obscene content, (ii) illegal content, or (iii) any other inappropriate materials.

PAYMENT TERMS

Payment Terms. Subject to the terms and conditions of this Agreement, Affiliate will be paid a Commission Fee ("Commission Fee") of residual of 20% of Skysa Pro upgrades ("Subscriber"). For Affiliate to earn a Commission Fee for a Referral, the Referral must have i) followed the Skysa Link that is provided to Referral by Affiliate or is otherwise located on the Affiliate's website to the Skysa website; ii) the Referral must have successfully registered a Skysa Bar Account; and iii) The referral must complete the embed process to add the Skysa bar to the Referrals website. Referral credits will accrual in an account on the Skysa Website and may be withdrawn in increments of $100 or more. Skysa shall have no obligation to pay Commission Fees per any promotion, promotion code, coupon or coupon promotional opportunity that is not specifically authorized for the Affiliate Program. Referral credits are applied to the Affiliates account up to 7 days from the date of an referred bar activation.
Payment Options. The Affiliate may withdraw funds from their Skysa Affiliate account in increments of one hundred dollars $100. Payment requests are processed and paid to the Affiliate's PayPal email address within 7 days of the payment request. Payment requests are restricted to 1 payment request every 30 days. The Affiliate will be required to provide their Tax ID number before the first payment is issued, Skysa is not responsible for payment delays due to incomplete, or inaccurate information provided by the Affiliate.
Taxes. Excluding any taxes based on Skysa' income, Affiliate shall be solely responsible for all tax returns and payments required to be filed with or made to any federal, state or local tax authority based on Affiliate's revenue or income under this Agreement or any Client Agreement.
Fraud and Fraudulent Activity. Skysa shall have no obligation to pay Commission Fees to Affiliate for Referrals or Subscribers if it is determined in good faith by Skysa that there has been fraudulent activity through the Affiliate's links or on the Affiliate's website. For exemplary purposes only without limitations, if an unreasonable number of Subscribers have originated from the Skysa Affiliate Links on Affiliate's website during any period of time, then Skysa shall have the right to examine Affiliate's records to the extent necessary to determine whether any fraudulent activity has occurred involving the Skysa Links on Affiliate's website and/or Affiliate's account at the Reporting Site. Furthermore, Skysa shall have no obligation to pay commission fees to Affiliate in the event of Subscriber obtaining a charge back or refund or if Skysa determines in good faith that Subscribers created their accounts solely for the purpose of aiding and abetting Affiliate to increase commission amounts without the intent of being a long term Skysa Subscriber.

CONFIDENTIAL INFORMATION

Each party agrees that it may have access to confidential or proprietary, technical or business information of the other party and/or its suppliers, including but not limited to, the content of this Agreement (collectively, "Confidential Information"). Each party will maintain the strict confidentiality of the Confidential Information of the other party and will not disclose the Confidential Information to any third party and shall exercise at least the same degree of care in safeguarding the Confidential Information as it would with its own Confidential Information (in no event less than reasonable care). Furthermore, neither party will use the Confidential Information for any purpose except those contemplated by this Agreement.

NO DISPARAGEMENT

Affiliate shall not disparage Skysa, or any Skysa Logo and/or Skysa products or services thereof, or place any disparaging content on the Affiliate's or Clients website(s).

NON-COMPETITION

Affiliate acknowledges and agrees that it shall not attempt to switch, divert, or convert a Subscriber from the Skysa Services to any product or service that is competitive to Skysa' products or services.

MODIFICATION

Skysa reserves the right at anytime and from time to time to modify, discontinue, temporarily or permanently, the Program (or any part thereof) with or without notice. Affiliate agrees that Skysa shall not be liable to Affiliate or to any third party for any modification, suspension or discontinuance of the Program. In the event that Affiliate does not agree with any such modification, Affiliate shall terminate its participation in the Program, which shall be Affiliate's sole and exclusive remedy.

TERMINATION

Term and Termination. Unless terminated earlier as provided herein, this Agreement shall remain in full force unless otherwise terminated by Skysa. Either party may terminate this Agreement at any time upon providing notice to the other party.
Effect of Termination. In the event that this Agreement is terminated for any reason, Affiliate will only be eligible for Commission Fees earned as a result of Subscribers who were acquired up to the date of termination or expiration. Upon termination or expiration of this Agreement, all licenses granted under this Agreement shall terminate and Affiliate will immediately cease use of, and remove from the Affiliate's website, all Skysa Logos, Skysa Materials, and Skysa Affiliate Links. Termination or expiration of this Agreement shall have no effect with respect to any rights or obligations existing under a Client Agreement. Except to the extent expressly provided to the contrary in this Agreement, any rights to Commission Fees earned, any right of action for breach of the Agreement prior to termination, and the following provisions shall survive the termination of this Agreement: Sections 6,7,8,11,13,14. Furthermore, upon termination or expiration of this Agreement and upon Skysa' request, Affiliate shall either return or destroy any Materials or other Confidential Information provided to Affiliate by Skysa.

INDEMNIFICATION

Affiliate shall defend and indemnify at its expense, and hold Skysa and each of its affiliates, directors, officers, agents, employees and sublicensees harmless from losses, damages, liabilities, costs and expenses, including without limitation, any proceeding, investigation or claim, to the fullest extent permitted by law arising out of or in connection with: (a) Affiliate's performance under this Agreement or any Client Agreement; (b) an assertion that the information, content or other materials or services provided or made available by Affiliate infringe any copyright, patent, trademark or other property right of any third party; (c) any breach by Affiliate of its obligations, representations and warranties under this Agreement; or (d) any claim related to the content on Affiliate's website or content provided by Affiliate to a Client for a Client Site. Affiliate shall notify Skysa promptly in writing of any claim or proceeding involving Skysa.

WARRANTY DISCLAIMER

Skysa SHALL NOT BE LIABLE OR OBLIGATED UNDER ANY SECTION OF THIS AGREEMENT, OR UNDER CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOST DATA, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES IN CONNECTION WITH THIS AGREEMENT, EVEN IF WBSTARTS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL Skysa BE LIABLE TO AFFILIATE OR ANY THIRD PARTY IN AN AGGREGATE AMOUNT GREATER THAN THE AMOUNT PAID TO AFFILIATE BY Skysa HEREUNDER.

LIMITATION OF LIABILITY

SKYSA SHALL NOT BE LIABLE OR OBLIGATED UNDER ANY SECTION OF THIS AGREEMENT, OR UNDER CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOST DATA, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES IN CONNECTION WITH THIS AGREEMENT, EVEN IF Skysa HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL Skysa BE LIABLE TO AFFILIATE OR ANY THIRD PARTY IN AN AGGREGATE AMOUNT GREATER THAN THE AMOUNT PAID TO AFFILIATE BY Skysa HEREUNDER.

INDEPENDENT CONTRACTOR

The parties are independent contractors and no agency, partnership, franchise, joint venture or employment relationship is intended or created by this Agreement. Neither party has the power or authority as agent, employee or any other capacity to represent, act for, bind or otherwise create or assume any obligation on behalf of the other party for any purpose whatsoever. Affiliate is solely responsible for all of its employees or agents and its labor costs and expenses arising therewith. Skysa will not furnish or otherwise reimburse Affiliate for any office space, office or business equipment, clerical support, telephone, travel, or any other expense which Affiliate may incur as a result its performance under this Agreement.

GENERAL

This Agreement may not be assigned by either party without the prior written consent of the non-assigning party. Notwithstanding the foregoing, Skysa may assign this Agreement to any acquirer of all or of substantially all of its equity securities, assets or business related to the subject matter of this Agreement. Any attempted assignment in violation of this Agreement shall be null and void and without effect. This Agreement sets forth the entire understanding and agreement of the parties with respect to the subject matter hereof and supersedes all any and all oral or written agreements or understandings between the parties as to the subject matter of this Agreement and may be changed only by a writing signed by both parties. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. Headings and captions are for convenience only and are not to be used in the interpretation of this Agreement. The parties acknowledge and agree that this Agreement may be entered into electronically, and without the necessity of written signatures. The services hereunder are offered by Spruz Inc., located at PO BOX 1086 Seymour, TN 37865.