Operating Agreement

This Affiliate Program Agreement (“Agreement”) contains the complete terms and conditions that apply to you participating in the Moto Message Affiliate Program.

The purpose of this Agreement is to enable you 1) to provide prospective customers a unique referral code that is to be used when customers signs up for Moto Message 2) link between a web Site or email owned and controlled by you (the “Affiliate”) and the Moto Message website(s) (the “Moto Message Site”). This Agreement will become effective upon our acceptance of the agreement upon account creation.

This Agreement contains the complete terms and conditions that apply to an individual’s or entity’s participation in the Moto Message Affiliate Program (the “Program”) sponsored by Moto Message as used in this Agreement, and including the following definitions.

1. Definitions

As used in this Agreement, the terms listed below shall have the following meanings:

• “Moto Message Marks” means the trademarks, trade names, service marks and logos owned by Moto Message that may be made available to you hereunder.
• “Affiliate Tracking Link” means (i) graphical links, text links, logos and other promotions that are offered by Moto Message now or in the future that link directly from the Affiliate’s Web Site to the Moto Message Sites and (ii) other links within email promotions that are offered by you now or in the future and link directly to the Moto Message Sites. By definition, the Affiliate Tracking Link will incorporate a unique identifying tag that will identify the origin of a user as coming directly from the Affiliate’s Site or email. (iii) Affiliate referral code that is offered to you at time of Affiliate program approval. This code is placed by the subscriber in the “referral code” section on the free trial sign up form.
• “Qualified Subscriber” means a user that registers as a Subscriber for the first time, who is over 18 years old, enters a valid credit card
• “Referral Fee” means fees paid to you for each Qualified Subscriber who comes to the Moto Message Site by way of an Affiliate Tracking Link on the Affiliate’s Web Site who is not already a Subscriber.
• “Site” means a World Wide Web site and, depending on the context, refers either to Moto Message’s site or to the site that you will link to our site.
• “Subscriber” means a user of the Moto Message Site who has completed Moto Message’s registration process in order to use any Moto Message product or service.
• “User Data” means data regarding a user provided by such user on the Moto Message Site, including without limitation the user’s name, email address, telephone number and other information about the user.
• “We” means Moto Message.
• “You” means the Affiliate.

2. Enrollment in the Program

To begin the enrollment process, you will submit a completed application form via our website. We may reject your application if we determine (at our sole discretion) that your site or sales channel(s) is unsuitable for the Program.

Unsuitable Sites/ Sales Channels. Unsuitable sites include those that:

• Promote sexually explicit materials.
• Promote violence.
• Promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age.
• Promote illegal activities.
• Violate intellectual property rights.

Moto Message prohibits certain forms of advertising on the Moto Message Site or using any Affiliate Tracking Link(s) or other Moto Message marks. Advertising commonly referred to as “spamming” could damage Moto Message’s goodwill. You shall not undertake any spamming referring to the Moto Message Sites, or using any Affiliate Tracking Link(s) or other Moto Message marks. You shall not refer to the Moto Message Site, or use any Affiliate Tracking Link(s) or other Moto Message marks in any unsolicited commercial email (UCE), postings to non-commercial newsgroups and cross-posting to multiple newsgroups at once. In addition, you shall not advertise in any way that effectively conceals or misrepresents your identity, domain name, or return email address.

Although Moto Message always requires that its written consent be given for the uses above, Moto Message generally approves mailings so long as the recipient is already a customer or subscriber of your services, and recipients have the option to remove themselves from future mailings. Moto Message generally approves newsgroup postings so long as the news group specifically welcomes commercial messages. In all cases, you must always clearly represent yourself, business and the Affiliate’s Web Site as independent from Moto Message.

Moto Message reserves the right, at its full discretion, to disqualify any individual it suspects of undermining or manipulating the registration and/or qualifying process, the operation of the affiliate program or to be acting in violation of this agreement. If we determine, in our sole discretion that the this affiliate program is compromised by virus, bug, robot entries, or other corruption of the administration, security or proper management of the program, then at our sole discretion, we can cancel this program. In the event of your non-compliance with any requirement stated herein, Moto Message may withhold any payments due to you until resolution of all disputes. If we reject your application, you are welcome to reapply to the Program at any time.

3. Links on Your Site

Link to Moto Message Site. You will display on your site a short description, review, or other reference to Moto Message web pages depending upon the Affiliate Tracking Link(s) used. You will link from each product reference on your site to the corresponding Moto Message home page or product description page, using an Affiliate Tracking Link format that we give you.
Maintenance and Monitoring of Affiliate Tracking Link(s): You agree to link only to those specific banner ads, HTLM-web pages that Moto Message designates in the Affiliate Tracking Link(s), and to use only the Affiliate Tracking Link(s) provided for such purpose. You shall not modify or alter the Affiliate Tracking Link(s) provided by Moto Message in any way. You agree not to “frame” or “mirror” any part of the Moto Message Site without the prior written authorization of Moto Message.

Moto Message has the right to monitor the content on Affiliate’s Web Site in a commercially reasonable manner as Moto Message believes necessary to monitor use of the Affiliate Tracking Link(s) and for compliance with the terms of this Agreement. Moto Message has the right to notify you of any reasonable changes you need to make to comply with the Moto Message guidelines for the use of the Affiliate Tracking Link(s), and to otherwise comply with the terms of this Agreement, and you agree to promptly make such changes.

You shall cooperate with Moto Message in order to establish and maintain any Affiliate Tracking Link(s) between the Moto Message Site and Affiliate’s Web Site. You shall not display any link or mark pertaining to Moto Message, for use as a link or otherwise, other than the Affiliate Tracking Link(s) that Moto Message provides to you. If Moto Message updates the Affiliate Tracking Link(s), you will replace the old Affiliate Tracking Link(s) with the new ones within a 48 hour period.

You agree that Moto Message will be allowed to place an identifying tag in each Affiliate Tracking Link that will identify the origin of a user that arrives directly at the Moto Message Site by clicking on the Affiliate Tracking Link.

4. Order Processing

We will process product orders placed by customers who follow special links from your site to the Moto Message site. Service orders may also be filled by the customer using the unique referral code or through direct introduction to a Moto Message company representative through an Affiliate. We reserve the right to reject orders that do not comply with any requirements that we periodically may establish. We will be responsible for all aspects of order processing and fulfillment. Among other things, we will prepare order forms; process payments, cancellations, and returns; and handle customer service. We will track sales made to customers who purchase products using special links or referral codes from your site or sales meetings to our site and will make available reports summarizing this sales 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 and referral codes are given without error or confusion.

Customers who purchase products and services through the Affiliate Program will be deemed to be customers of Moto Message. Accordingly, all Moto Message rules, policies, and operating procedures concerning customer orders and service will apply to those customers. We may change our policies and operating procedures at any time.

Moto Message policies will always determine the price paid by the customer. Prices and availability of our products and services may vary from time to time.

5. Referral Fees

We will pay you referral fees on certain Moto Message sales to third parties. For a sale to generate an affiliate referral fee, the customer must follow an affiliate tracking link (in the format specified by Moto Message from your Site or email to the Moto Message Site, enter the unique referral code into the free trial sign up form, or have notify a Moto Message representative of your referral for manual sign-ups; purchase a Moto Message product (Qualifying Products) using our automated ordering system or in some cases manual signup for invoiced accounts; accept delivery of the product online; and remit full payment to us through our secure online payment process. Moto Message reserves the right to specify and change which products qualify for referral fees for the purposes of the Program.

Moto Message will pay an on-going Referral Fee as follows for each Qualified Subscriber who [fully enrolls each month in Moto Message’s text message marketing program using the Affiliate referral code, purchases from any Subscriber who enters the Moto Message Sites directly from, banner ad, Affiliate Tracking Link(s) on Affiliate’s Web Site or in its email newsletters.
Text Message Marketing Account: 0% of the initial sign-up fist month free fee & 40% of the monthly renewal fee. Moto Message does not pay a Referral Fee or Commission from the purchase of additional keywords or other related services that Moto Message reserves the right to offer to it’s customers.

Override Commissions to Original Affiliates for Sales Channel Referrals
In the event that the Original Affiliate refers another Affiliate to whom Moto Message pays commissions to, the Original Affiliate will be paid a 5% Referral Fee of the total Referral Fee commissions paid to all Affiliates referred to Moto Message and registered as a Moto Message Affiliate.

6. Payment Terms

Payment of Referral Fees will be made on a monthly basis. Moto Message will send a check for the applicable commissions within approximately 30 days after the end of each calendar month. If the customer returns an order that generated a commission, or if there are any returned checks or charge-backs, the referral fee amount will be deducted from the next payment.

With each payment, Moto Message will provide you with reports that will contain all necessary information as required to calculate and determine the Referral Fees due to you.

All commissions or overrides earned will survive termination and will be paid on a monthly basis for as long as the Subscriber maintains their service with Moto Message.

Affiliates must also provide to Moto Message or the companies accountant a W-9

7. Compliance with Applicable Laws

You are solely responsible for the accuracy and appropriateness of all materials posted on your, the Affiliate’s Web Site and in sales transactions, meetings or presentations, and for ensuring that your activities and materials posted on Affiliate’s Web Site are not defamatory, in violation of copyright laws or otherwise illegal. You agree to indemnify and hold Moto Message harmless for any violations of the foregoing. Moto Message disclaims all liability for these matters.

8. Grant of Licenses

Subject to the terms of this Agreement, you have the nonexclusive, nontransferable and non-sub-licensable right to use and display Moto Message trademarks and service marks, only to refer specifically to Moto Message services and products in connection with the Affiliate Tracking Link(s), and only in the form which Moto Message provides you for such limited purposes. Such referential usage must be truthful, fair and not misleading or disparaging. Moto Message trademarks, service marks and logos must be used with a minimum spacing surrounding them and not be incorporated into your own product names, trademarks, service names, logos, company names or DBA’s. You shall not adopt marks or logos that are confusingly similar to Moto Message’s marks or logos. You grant to Moto Message a non-exclusive, non-transferable, revocable right to utilize your name, title, and logo in the advertising, marketing, promoting, and publicizing, in any manner, related to Moto Message’s rights under this Agreement. Moto Message is not under any obligation to so advertise, market, promote, or publicize. Each party agrees not to use the other’s proprietary materials, marks or other intellectual property in any manner that is disparaging or that otherwise portrays the party in a negative light. Each party reserves all of its respective rights in the proprietary materials and intellectual property covered by this license. Other than the license granted in this Agreement, each party retains all rights, title, and interests to its respective rights and no right, title, or interest is transferred to the other.

9. Modification

Moto Message may modify any of the terms and conditions in this Agreement, at any time in its sole discretion and may include, but are not limited to, changes in the scope of Referral Fees, payment procedures, and Moto Message’s Affiliate Program rules. If any modification is unacceptable to you, you shall have the right to terminate this Agreement as set forth below. Your continued participation in Moto Message’s Affiliate Program following the posting of the change notice or new agreement on Moto Message’s site will constitute your agreement to the changes.

10. Representations, Warranties & Covenants

You represent and warrant that 1) you have full right, power, and authority to enter into and be bound by the terms and conditions of this Agreement and to perform your obligations under this Agreement, without the approval or consent of any other party; 2) you have sufficient right, title, and interest in and to the rights granted to Moto Message in this Agreement; 3) the material posted on Affiliate’s Web Site or in sales or affiliated related conversations or presentations does not defame any third party or violate or infringe upon the rights of any third party and all applicable copyright and other laws that pertain to it; 4) you shall not to make any representations or warranties regarding the services provided by Moto Message; and 5) you shall not make or publicize any statements that are disparaging of Moto Message or that otherwise portray Moto Message in a negative light.

11. Term & Termination

The term of this Agreement will begin on the Effective Date and will end when terminated by either party with at least thirty days notice by each party.

Each Party shall be entitled terminate this Agreement at any time, for any reason, and in their sole discretion, with or without cause, by giving the other party written notice of termination.

Upon the termination of this Agreement for any reason, all licenses granted hereunder shall immediately terminate and you will immediately cease use of, and remove from Affiliate’s Web Site, all links to the Moto Message Site, and all Moto Message trademarks and logos, and all other materials provided in connection with this Agreement.

12. Disclaimer

Moto Message provides the Moto Message site and all content, information and services available therein, “As-Is” and makes no express or implied representations or warranties regarding Moto Message or any services or information provided by any Subscriber of Moto Message any implied warranties of merchantability, fitness for a particular purpose, and non-infringement are expressly disclaimed and excluded. In addition, Moto Message makes no representation that the operation of our site will be uninterrupted or error free, and Moto Message will not be liable for the consequences of any interruptions, downtime or errors.

13. Limitations of Liability

We make no express or implied warranties or representations with respect to the Affiliate Program or your potential to earn income from the Affiliate Program. In addition, we make no representation that the operation of our site will be uninterrupted or error-free, and we will not be liable for the consequences of any interruptions or errors.

Notwithstanding anything to the contrary contained in this agreement, Moto Message will not be liable to you with respect to any subject matter of this agreement under any contract, negligence, tort, strict liability, or other legal or equitable theory for any indirect, incidental, consequential, special, or exemplary damages (including, without limitation, loss of goodwill or actual or anticipated revenue, profits or lost business), even if Moto Message has been advised of the possibility of such damages. Further, notwithstanding anything to the contrary contained in this agreement, in no event shall Moto Message’s cumulative liability to you arising out of or related to this agreement, whether based in contract, tort (including without limitation negligence and strict liability) or other legal or equitable theory, exceed the total referral fees payable to you under this agreement

14. Indemnification

You agree to indemnify and hold harmless Moto Message and its employees, directors, representatives, agents, and affiliates, against any and all claims, suits, actions, or other proceedings brought against Moto Message based on or arising from any claim resulting from your breach of the warranties and covenants in this Agreement. You agree to pay any and all costs, damages, and expenses, including, but not limited to, reasonable attorneys’ fees and costs awarded against or otherwise incurred by the other party in connection with or arising from any such claim, suit, action, or proceeding.

15. Confidentiality

In connection with the activities contemplated by this Agreement, you may acquire confidential technical or business information of Moto Message which is not generally known to the public, including without limitation (i) proposals, ideas or research related to possible new products or services; (ii) financial statements and other financial information; (iii) any reporting information required by the Agreement; and (iv) the terms of this Agreement and the relationship between the parties (collectively, “Confidential Information”). You agree not to disclose the Confidential Information or use the Confidential Information for your own benefit or for the benefit of any third party. Your obligations in this Section shall not apply to any information that you can document: (i) was in the public domain at or subsequent to the time it was communicated to you through no fault of yours; (ii) was rightfully in your possession free of any obligation of confidence owed to Moto Message at or subsequent to the time it was communicated to you by Moto Message; (iii) was in response to a valid order by a court or other governmental body or was otherwise required by law. Upon the termination or expiration of this Agreement, you shall return upon Moto Message’s request or otherwise destroy all Confidential Information of Moto Message in your possession.

16. General Provisions

16.1 Independent Contractors. The relationship between both parties established by this Agreement is that of independent contractors, and nothing contained in this Agreement shall be construed to give either party the power to direct and control the day-to-day activities of the other. Neither party is an agent, representative or partner of the other party. Neither party shall have any right, power or authority to enter into any agreement for, or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other party. This Agreement shall not be interpreted or construed to create an association, agency, joint venture or partnership between the parties or to impose any liability attributable to such relationship upon either party.

16.2 Publicity. Neither party will make any public announcement or issue any press release concerning the terms of this Agreement without the prior approval of both parties.

16.3 Non-Solicitation. Neither party shall solicit for employment or hire the other’s current or future employees, either directly or indirectly, during the Term of this Agreement, without obtaining the other’s prior written approval. Should an employee change employment from one party to the other, the new employer shall pay the old employer a fee equivalent to Twenty Percent (20%) of the employee’s new compensation, annualized for the first year.

16.4 Governing Law & Jurisdiction. This agreement and the parties’ actions under this Agreement shall be governed by and construed under the laws of the state of IL, without reference to conflict of law principles. The parties hereby expressly consent to the jurisdiction and venue of the federal and state courts within the state of IL. Each party hereby irrevocably consents to the service of process in any such action or proceeding by the mailing of copies thereof by registered or certified mail, postage prepaid, to such party at its address set forth in the preamble of this Agreement, such service to become effective thirty (30) days after such mailing.

16.5 Entire Agreement. This Agreement, including the attached exhibits, constitutes the entire Agreement between both parties concerning this transaction, and replaces all previous communications, representations, understandings, and Agreements, whether verbal or written between the parties to this Agreement or their representatives. No representations or statements of any kind made by either party, which are not expressly stated in this Agreement, shall be binding on such parties.

16.6 All Amendments in Writing. No waiver, amendment or modification of any provisions of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the party against whom such waiver, amendment or modification is sought to be enforced. Furthermore, no provisions in either party’s purchase orders or in any other business forms employed by either party will supersede the terms and conditions of this Agreement.

16.7 Notices. Any notice required or permitted by this Agreement shall be deemed given if sent by registered mail, postage prepaid with return receipt requested, addressed to the other party at the address set forth in the preamble of this Agreement or at such other address for which such party gives notice hereunder. Delivery shall be deemed effective three (3) days after deposit with postal authorities.

16.8 Costs of Legal Action. In the event any action is brought to enforce this Agreement, the prevailing party shall be entitled to recover its costs of enforcement including, without limitation, attorneys’ fees and court costs.

16.9 Inadequate Legal Remedy. Both parties understand and acknowledge that violation of their respective covenants and Agreements may cause the other irreparable harm and damage, that may not be recovered at law, and each agrees that the other’s remedies for breach may be in equity by way of injunctive relief, as well as for damages and any other relief available to the non-breaching party, whether in law or in equity.

16.10 Arbitration. Any dispute relating to the interpretation or performance of this Agreement shall be resolved at the request of either party through binding arbitration. Arbitration shall be conducted in Kane County, IL in accordance with the then-existing rules of the American Arbitration Association. Judgment upon any award by the arbitrators may be entered by any state or federal court having jurisdiction. Both parties intend that this Agreement to arbitrate be irrevocable.

16.11 Delay is Not a Waiver. No failure or delay by either party in exercising any right, power or remedy under this Agreement, except as specifically provided in this Agreement, shall operate as a waiver of any such right, power or remedy.

16.12 Force Majeure. In the event that either party is unable to perform any of its obligations under this Agreement or to enjoy any of its benefits because of any Act of God, strike, fire, flood, governmental acts, orders or restrictions, Internet system unavailability, system malfunctions or any other reason where failure to perform is beyond the reasonable control and not caused by the negligence of the non-performing party (a “Force Majeure Event”), the party who has been so affected shall give notice immediately to the other party and shall use its reasonable best efforts to resume performance. Failure to meet due dates resulting from a Force Majeure Event shall extend such due dates for a reasonable period. However, if the period of nonperformance exceeds sixty (60) days from the receipt of notice of the Force Majeure Event, the party whose ability to perform has not been affected may, by giving written notice, terminate this Agreement effective immediately upon such notice or at such later date as is therein specified.

16.13 Assignability & Binding Effect. Except as expressly set forth within this Agreement, neither party may transfer or assign, directly or indirectly, this Agreement or its rights and obligations hereunder without the express written permission of the other party, not to be unreasonably withheld; provided, however, that both parties shall have the right to assign or otherwise transfer this Agreement to any parent, subsidiary, affiliated entity or pursuant to any merger, consolidation or reorganization, provided that all such assignees and transferees agree in writing to be bound by the terms of this Agreement prior to such assignment or transfer. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties hereto, their successors and assigns.

16.14 Severability. If any provisions of this Agreement are held by a court of competent jurisdiction to be invalid under any applicable statute or rule of law, they are to that extent to be deemed omitted and the remaining provisions of this Agreement shall remain in full force and effect.

16.15 Cumulative Rights. Any specific right or remedy provided in this Agreement will not be exclusive but will be cumulative upon all other rights and remedies described in this section and allowed under applicable law.

16.16 Headings. The titles and headings of the various sections and sections in this Agreement are intended solely for convenience of reference and are not intended for any other purpose whatsoever, or to explain, modify or place any construction upon or on any of the provisions of this Agreement.

16.17 Counterparts. This Agreement may be executed in multiple counterparts, any one of which will be considered an original, but all of which will constitute one and the same instrument.

16.18 Survival of Certain Provisions. The warranties and the indemnification and confidentiality obligations set forth in the Agreement shall survive the termination of the Agreement by either party for any reason.