TERMS OF USE FOR THE AFFILIATE PROGRAM
Effective May 4, 2009

This Terms of Use Agreement (the “Agreement”) is a legally binding agreement between you or the entity for which you are accepting this Agreement (the “Affiliate”) and TSM Technology Management, Inc. (“Company”) that governs Affiliate’s relationship with the Company and any Participating Company (as defined hereafter).  Affiliate agrees to read this Agreement carefully before completing Affiliate’s application for the “Program” (as defined below) and accepting this Agreement.  BY CLICKING ON THE “I AGREE” BUTTON AND PARTICIPATING IN THE PROGRAM, AFFILIATE ACKNOWLEDGES THAT AFFILIATE HAS READ THIS AGREEMENT, THAT AFFILIATE UNDERSTANDS THE AGREEMENT, AND THAT AFFILIATE AGREES TO BE BOUND BY ITS TERMS.  If Affiliate does not agree to the terms and conditions of this Agreement:  (i) do not click the “I agree” button; (ii) Affiliate must leave the “Company’s Site” (as defined below) immediately; and (iii) Affiliate cannot access the Company’s Site or participate in the Program.  For Affiliate’s convenience and records, Company suggests that Affiliate print and keep a copy of this Agreement.

Company reserves the right to change this Agreement at any time, so we encourage Affiliate to review this web page periodically.  The changes will be effective immediately when posted.  Affiliate’s continued use of the Company’s Site or participation in the Program following the posting of any changes to this Agreement shall constitute Affiliate’s acceptance of the changed Agreement.  

1. Defined Terms.  In addition to other terms defined elsewhere in this Agreement, the following terms shall have the meanings set opposite such terms as follows:

“Affiliate’s Site” means a World Wide Web site of Affiliate from which Affiliate will link to Company’s Site pursuant to this Agreement.
      
“Company’s Site” means a World Wide Web site of Company or a “Participating Company” (as defined below) to which Affiliate’s Site will link pursuant to this Agreement.
      
“Customer” means an individual or entity other than: (i) Affiliate; (ii) any entity which controls, is under common control with or is controlled by Affiliate; (iii) Company; or (iv) a Participating         Company.
      
“Participating Company” means an entity designated by Company as a Participating Company from time to time.
      
“Program” shall mean Company’s affiliate program which, in general terms, allows certain third party entities to link to a Company’s Site from the Affiliate’s Site and pays referral fees to such affiliates for certain customers who purchase Company’s or a Participating Company’s services through such links.  
      
2. Enrollment in the Program

      (a)    The terms of Sections 3-8 of the Agreement shall only become effective upon Company’s notice to Affiliate of Company’s acceptance of Affiliate in the Program pursuant to Section 2(b).
      
      (b)    To begin the enrollment process, Affiliate must submit a completed Program application available on Company’s Site.  Company will evaluate Affiliate’s application and will notify Affiliate of Affiliate’s acceptance or rejection of such application.  Company may reject Affiliate’s application for any reason or no reason at all, if Company determines, in Company’s sole discretion, that Affiliate’s Site is unsuitable for the Program.  Unsuitable sites include, without limitation, those that:

      (i)    promote violence;
      (ii) promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age;
      (iii) promote illegal activities; or
      (iv) violate, or promote or induce the violation of, intellectual property rights.

(c)    If Company rejects Affiliate’s application, this Agreement shall automatically terminate upon the date the Company sends notification of its rejection of the application to Affiliate.  Upon such termination, Company shall owe no duties or obligations to Affiliate whatsoever.  

3. Links on Affiliate’s Site.  If Company sends a notification to Affiliate of Company’s acceptance of Affiliate’s application to the Program as set forth in Section 2(b), Affiliate may display a banner advertisement on the Affiliate’s Site which links to Company’s Site (the “Banner Ad”), only pursuant to the guidelines and using the graphical artwork supplied to Affiliate by Company.  Affiliate shall prominently display the Banner Ad on Affiliate’s Site.  Affiliate shall link such Banner Ad so that a person clicking on the Banner Ad will only link to the url to the Company’s Site given by Company to Affiliate for such purpose.  Affiliate may not display, use or link the Banner Ad in any manner not consistent with the terms of this Section 3.  Affiliate may not display any link, trademark or other banner advertisement of, or relating to Company or any Participating Company, not specifically authorized by the terms of this Section 3.

4. Order Processing.  Company will process, authenticate and complete product orders placed by Customers who follow the link from the Banner Ad on Affiliate’s Site to the Company’s Site. Company reserves the right to reject orders in its sole and absolute discretion without any fee, payment, penalty or other amounts paid to Affiliate.  Company will track “Qualified Sales” (as defined hereafter) and will send to Affiliate reports summarizing the aggregate and anonymous sales activity generated by the Qualified Sales.  The form, content, and frequency of the reports may vary from time to time at Company’s sole discretion. Affiliate agrees that Company shall own all such reports and information contained in the reports, and that Affiliate will not rent, sell, loan, barter, share or otherwise transfer or disclose such information to any third party without Company’s prior written consent. To permit accurate tracking, reporting, and fee accrual, Affiliate must ensure that the link on the Banner Ad between Affiliate’s Site and Company’s Site is properly formatted and functioning.  Company shall not be responsible for any failures to accurately report Qualified Sales due to any failure of the Banner Ad or link.

5. Qualified Sale.  A “Qualified Sale” shall mean a Company sale which occurs when a Customer: (a) follows the link in the Banner Ad on Affiliate’s Site to the Company’s Site; (b) after coming to the Company’s Site using the link described in subsection 5(a), and before leaving the Company’s Site during that visit, purchases services using Company’s automated ordering system; and (c) remits full payment to Company (or allows a third party to remit such payment without asserting a chargeback or similar credit).  Company will not, however, pay referral fees on any services that are purchased after the Customer has left the Company Site and re-entered the Company Site (other than through the link set forth in subsection 5(a)), even if the Customer previously followed the link in subsection 5(a) from Affiliate’s Site to Company’s Site.  The Program is intended for commercial use only, and Affiliate may not purchase services through the Program for Affiliate’s own use or for Affiliate to give or sell to others.  In addition to any other remedies Company may have against Affiliate, the foregoing purchases or activity may result, in Company’s sole discretion, in the withholding of referral fees or the termination of this Agreement.  

6. Referral Fees and Payment to Affiliate.  For each Qualified Sale whose account stays active for sixty (60) days, Company will pay Affiliate 100% of the subscription revenue actually received by Company from such Qualified Sale that is attributable to the first month of Qualified Sale’s subscription, to a maximum of $25.00 (the “Referral Fees”).  The Referral Fees earned each month will be calculated by Company at the end of each month, taking into account the first sixty (60) days of the Qualified Sale as described in the preceding sentence.  Company will pay Affiliate the Referral Fees, less any taxes that Company is required by law to withhold.  However, if the Referral Fees payable to Affiliate for any calendar quarter are less than $100.00 (USD), Company will hold those Referral Fees until the total amount due is at least $100.00 (USD) or (if earlier) until this Agreement is terminated.  If there is any type of chargeback for a Qualified Sale, Company will deduct the corresponding fee from Affiliate’s next quarterly payment of Referral Fees.  

7. Policies and Pricing.  Customers who buy services from Company through this Program will be deemed to be customers of Company.  Accordingly, all Company rules, policies, and operating procedures concerning customer orders, customer service, and sales will apply to those Customers. Company may change Company’s policies and operating procedures at any time. For example, Company will determine the prices to be charged for services sold under this Program in accordance with Company’s own pricing policies. Service prices and availability may vary from time to time.  Company will use commercially reasonable efforts to present accurate information, but Company cannot guarantee the availability or price of any particular service.  Affiliate acknowledges that no privacy policy governs this Program and Company shall be entitled to use the information obtained by Company from Affiliate pursuant to this Agreement without restriction.
      
8. Limited License.  Company grants Affiliate a non-exclusive, revocable right to use the images contained in any Banner Ad graphics supplied by Company solely for the purpose of displaying the Banner Ad on Affiliate’s Site.  Affiliate may not modify any images, trademark, message, embedded programming or any of Company’s or a Participating Company’s graphics provided to Affiliate by Company in any way.  Company reserves all of Company’s rights in and to any graphics, icons, messages, images, programming, Company’s and Participating Company’s trade names and trademarks, and all other intellectual property rights of Company and Participating Company(-ies).  Affiliate agrees to follow Company’s Trademark Guidelines, as those may change from time to time, and Company has the right to require Affiliate to cease any actions inconsistent with or contradictory to such guidelines.  If in the sole opinion and discretion of Company, Affiliate’s Site does not meet the quality commensurate with Company’s or any Participating Company’s trademarks, tradenames and Company’s or Participating Company’s (as the case may be) goodwill associated therewith, Company may immediately terminate the license granted hereunder.  In addition to the foregoing, Company may revoke Affiliate’s license at any time, for any reason or no reason at all, by giving Affiliate written notice.

10. Responsibility for Affiliate’s Site.  Affiliate will be solely responsible for the development, operation, and maintenance of Affiliate’s Site and for all materials that appear on Affiliate’s Site. For example, Affiliate will be solely responsible for:
      
(a) the technical operation of Affiliate’s Site and all related equipment;
(b) the accuracy and appropriateness of materials posted on Affiliate’s Site;
(c) ensuring that materials posted on Affiliate’s Site do not violate or infringe upon the rights of any third party (including, for example, copyrights, trademarks, privacy, or other personal or proprietary rights);
(d) ensuring that materials posted on Affiliate’s Site are not libelous or otherwise illegal; and
(e) ensuring that the Affiliate’s Site link to the Company Site is in the format specified by Company.

Company disclaims any and all liability for these matters.  Further, Affiliate will defend, indemnify and hold Company, any Participating Company, and its and their affiliates, officers, directors, shareholders, agents and employees harmless from any and all claims, damages, loss, costs, and expenses (including, without limitation, attorneys' fees) relating to Affiliate’s Site, including without limitation the development, operation, maintenance, use and contents of Affiliate’s Site, and any representations or warranties made on Affiliate’s Site.

11.  Terms of the Agreement.  The terms of Sections 1-2 and 9-17 of the Agreement shall become effective upon Affiliate’s acceptance of this Agreement.  THE TERMS OF SECTIONS 3-8 OF THE AGREEMENT SHALL ONLY BECOME EFFECTIVE UPON COMPANY’S NOTICE TO AFFILIATE OF COMPANY’S ACCEPTANCE OF AFFILIATE IN THE PROGRAM PURSUANT TO SECTION 2(B).  The term of this Agreement shall end when terminated by either party or as otherwise set forth in this Agreement.  Either Affiliate or Company may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination.  Affiliate is only eligible to earn referral fees on Qualified Sales occurring during the term.  Fees earned through the date of termination will remain payable only if the related Qualified Sales are not canceled or returned or if payment for such Qualified Sales are not charged back.  Company may withhold Affiliate’s final payment for a reasonable time to ensure that the correct amount is paid.  Notwithstanding anything contained to the contrary herein, no Referral Fees shall be due or owing to Affiliate for any reason more than twelve months after the termination of this Agreement.

12.   Modification.  Company reserves the right to change this Agreement at any time, so Company encourages Affiliate to review this web page periodically.  The changes will be effective immediately when posted.  Affiliate’s continued use of the Company’s Site or participation in the Program following the posting of any changes to this Agreement shall constitute Affiliate’s acceptance of the changed Agreement.  Except as otherwise set forth in this Section 12, any other modifications must be made with the written approval of each party.

13.  Relationship of Parties.  Affiliate and Company are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties.  Affiliate will have no authority to make or accept any offers or representations on Company’s or any Participating Company’s behalf.  Affiliate will not make any statement, whether on Affiliate’s Site or otherwise, that reasonably would contradict anything in this Section.

14.  LIMITATION OF LIABILITY.  COMPANY AND ANY PARTICIPATING COMPANIES WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES (OR ANY LOSS OF REVENUE, PROFITS, OR DATA) ARISING IN CONNECTION WITH THIS AGREEMENT OR THE PROGRAM, EVEN IF COMPANY OR SUCH PARTICIPATING COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, COMPANY’S AND ANY PARTICIPATING COMPANY’S AGGREGATE LIABILITY ARISING WITH RESPECT TO THIS AGREEMENT AND THE PROGRAM WILL NOT EXCEED THE TOTAL REFERRAL FEES PAYABLE TO AFFILIATE UNDER THIS AGREEMENT.

15.  DISCLAIMERS.  COMPANY AND ALL PARTICIPATING COMPANIES 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, NONINFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING OUT OF A COURSE OF PERFORMANCE, DEALING, OR TRADE USAGE).  WITHOUT LIMITING THE GENERALITY OF THE FOREGOING DISCLAIMERS, NEITHER COMPANY NOR ANY PARTICIPATING COMPANIES MAKE ANY REPRESENTATION OR WARRANTY THAT: (I) THE OPERATION OF COMPANY’S SITE WILL BE UNINTERRUPTED OR ERROR-FREE AND COMPANY AND ANY PARTICIPATING SITES WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS; OR (II) AFFILIATE WILL RECEIVE ANY VOLUME OF REFERRAL FEES OR THAT ANY QUALIFIED SALES WILL OCCUR.

16.  INDEPENDENT INVESTIGATION.  AFFILIATE ACKNOWLEDGES THAT AFFILIATE HAS READ THIS AGREEMENT AND AGREES TO ALL ITS TERMS AND CONDITIONS. AFFILIATE UNDERSTANDS THAT COMPANY MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) SOLICIT CUSTOMER REFERRALS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT OR OPERATE WEB SITES THAT ARE SIMILAR TO OR COMPETE WITH AFFILIATE’S SITE. AFFILIATE HAS INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE PROGRAM AND IS NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.

17. Miscellaneous.  This Agreement will be governed by the laws of the United States and the state of Georgia without reference to rules governing choice of laws. Any action relating to this Agreement must be brought in the federal or state courts located in or having jurisdiction over Gwinnett County, Georgia and Affiliate irrevocably consents to the jurisdiction of such courts. Any cause of action Affiliate may have with respect to the Program or this Agreement must be commenced within one (1) year after the claim or cause of action arises.  The parties hereby agree that the United Nations Convention on the International Sale of Goods will not apply to this transaction.  English shall be the controlling language of this Agreement.  All monetary amounts specified hereunder or in any invoice shall be read to be in United States’ dollars.  Except as provided in the “Disclaimers” and “Limitations of Liability” sections, the parties’ rights and remedies under this Agreement are cumulative.  If Company is forced to bring legal action to enforce this Agreement, Company will be entitled to receive its attorneys’ fees, court costs and other collection expenses, in addition to any other relief it may receive if it is the prevailing party.  All waivers must be in writing.  Should any provision of this Agreement require judicial interpretation, it is agreed that the court interpreting or construing the same shall not apply a presumption that the terms hereof shall be more strictly construed against one party by reason of the rule of construction that a document is to be construed more strictly against the party who itself or through its agent prepared same, it being agreed that the agents of all parties have participated in the preparation hereof.  Affiliate may not assign this Agreement, by operation of law or otherwise, without Company’s prior written consent and any attempt to do so will be void and of no effect.  Company may assign or delegate its rights and/or obligations, in whole or in part, without the consent of Affiliate.  A party’s failure to enforce strict performance of any provision of this Agreement will not constitute a waiver of such party’s right to subsequently enforce such provision or any other provision of this Agreement.  Sections 1, 6, 7, 9, 10 and 13-16 shall survive any termination of this Agreement.  The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement.  As used in this Agreement, the word “including” means “including but not limited to”.  This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes any and all prior agreements, oral or written, between the parties prior to this Agreement.  

Consent to Electronic Commerce Transactions.  By accepting this Agreement, Affiliate hereby authorizes and consents to transacting business electronically both for the purposes of this Agreement and for future business transactions with Company.