Social Cord

Social Cord Marketing Partner Terms and Conditions

These are the terms and conditions that constitute your agreement (“Partner Agreement”) with Social Cord, LLC (“Social Cord”, “we”, “us” or “our”) when we accept the application you submit to us (your “Application”) requesting participation in our Self-Serve Partner Program (as defined below). We reserve the right to accept or reject Applications and you are not a participant in our Self-Serve Partner Program until we notify you we have accepted your Application.

Although we will use terms such as “Partner”, “you” or “your” to refer to the individual or business entity identified in the Application you submit, you are and remain, for all purposes, purely an independent contractor, responsible for your own actions, taxes, the provision of any benefits, insurance and compliance with any and all laws and regulations that apply to you, your business and activities. Neither this PARTNER Agreement, nor your participation in our Self-Serve Partner Program contemplates any sharing of profits or losses, a joint venture or any other form of business arrangement, other than your participation in our Self-Serve Partner Program as described in this PARTNER Agreement.

1) DEFINITIONS

a) “Adware” means any Widget that (i) causes advertising to pop-up as a new window (over or under the active window) on an end user’s computer or device either randomly or based on the end user’s online activity (other than advertisements served by persons to visitors while they are visiting that person’s domains) or (ii) is used to distribute Spyware.

b) “Customer” means an end user referred to Social Cord directly by Partner through Integration that (i) provides all information requested by Social Cord, which may include carrier, mobile number, email address and content selection information, (ii) agrees to our Terms & Conditions (as defined below), (iii) authenticates their agreement with us (through SMS, confirmation web page or otherwise as we specify or by downloading Mobile Content and (iv) is billed by or on behalf of Social Cord for a monthly subscription.

c) “Customer Data” means data collected by Social Cord with respect to Customers, including contact information (such as name, email, cell phone number and address), billing information (such as credit card number and expiration date), demographic information (such as zip code, age level) and information relating to Mobile Content purchases and usage patterns.

d) “Social Cord Service” means the services provided by us with respect to Mobile Content to Customers on a subscription basis, as well as any associated applications, including, without limitation, those applications that allow Customers to purchase and receive Mobile Content.

e) “Social Cord Tools” means any application programming interface (“API”) or technology and related documentation and any uniquely coded hyperlinks made available by Social Cord that allow you to develop the Integration with Social Cord and offer access to the Social Cord Service, including any xml feed of the Social Cord catalog of Mobile Content.

f) “Drive-by-Download” means implementing or allowing any Widget installation process or procedure to be initiated unless the end user has given informed consent immediately prior to the commencement of the installation or download process or procedure.

g) “Integration” means the inclusion of portions of the Social Cord Services and Social Cord Marks on the Partner Sites in accordance with the Specifications and as mutually agreed upon by the Parties, as well as any other instances of direct marketing and promotion of Social Cord Services by Partner, to the extent permitted by this PARTNER Agreement.

h) “Malware” means any malicious code, viruses, Trojan horses, logic bombs, denial of service attacks or other disruptive programs, software, code or activities that is designed or intended (or reasonably likely to have been designed or intended) to disrupt, damage, interrupt, interfere with or perform unauthorized actions without notice and express prior consent of the end user, including, without limitation, Adware and Spyware.

i) “Marks” means the trademarks, service marks, trade names, brands, logos and other distinctive branding or identification of a party.

j) “Mobile Content” means any Mobile Device content offered to Customers by Social Cord, including text alerts, audio, images, video.

k) “Mobile Device” means a portable, wireless communications device through which a Customer may connect with a Mobile Network to transmit and receive communications, including, without limitation, wireless, mobile or cellular communication devices, Internet communications devices or other communications or transmission technology now known or hereafter implemented.

l) “Mobile Network” means a wireless communications network pursuant to which a Social Cord Customer may send and/or receive mobile communications services.

m) “Partner Application” means Partner’s proprietary Widget.

n) “Partner Application Terms of Use” means the agreement the Partner employs to legally bind an end user to Partner’s terms and conditions that apply to and govern the use of a Partner Application.

o) “Partner Sites” means the web sites, web pages, domains or online services owned, operated and/or managed by Partner that are approved by Social Cord for purposes of this PARTNER Agreement.

p) “Specifications” means the formatting parameters, technical specifications, privacy and regulatory guidelines (including applicable Mobile Marketing Association guidelines), design and functionality requirements, Mobile Content parameters and all other criteria, requirements and implementation processes set forth on Social Cord’s “Specifications Page” located at http://openSocial Cord.com/Partner_Policy, as may be updated by Social Cord from time to time.

q) “Spyware” means any Widget that, without the end user’s knowledge, gathers end user data and communicates or allows the exchange of information with an end user other than information (i) gathered in connection with services or information disclosed to the end user and subject to the Partner Application Terms of Use applicable to the end user or (ii) that does not constitute personally identifiable information or other legally prohibited information or information that is restricted from collection or use without the express, prior consent of the individual.

r) “Terms & Conditions” means Social Cord’s Subscription Agreement, Terms of Service, Privacy Policy and all other terms and conditions applicable to a Customer’s agreement with us regarding the Social Cord Service, as may be updated from time to time.

s) “Widget” means any application program or element of graphical user interface that displays information or provides a specific way for an end user to interact with an operating system, computer programs or code, including, without limitation, that or any other application networks, systems, servers or other programs.

2) PURPOSE OF PARTNER AGREEMENT; LICENSE GRANT

a) Social Cord and Partner desire to work together to make the Social Cord Service available to end users of Partner Sites and/or Partner Applications through the display of the Integration on Partner Sites and/or Partner Applications.

b) Subject to the terms and conditions of this PARTNER Agreement, Social Cord grants to Partner a limited, non-exclusive, non-transferable, non-sublicenseable license to (i) use the Social Cord Tools for the sole purpose of working with Social Cord to develop and offering to prospective Customers the Integration on Partner Sites and/or Partner Applications and (ii) offer and promote the Social Cord Services in conjunction with the Integration. All rights not expressly granted under this PARTNER Agreement are hereby expressly reserved by Social Cord.

c) Partner may not disclose or use the Social Cord Tools other than as contemplated in this PARTNER Agreement, nor distribute, modify, adapt, translate, perform, transmit, copy or prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Social Cord Tools, unless specifically authorized by Social Cord in writing, in advance.

3) SOCIAL CORD OBLIGATIONS

a) Social Cord shall, at its own cost and expense, provide Social Cord Services and Mobile Content for the Social Cord Service. Social Cord shall be responsible for and will solely control the Social Cord Service, including, without limitation, all features, content, pricing and functionality, and has the unrestricted right to modify, suspend or amend same at all times, in its sole discretion.

b) Social Cord shall administer first response Customer support to all inquiries or complaints received from Customers via the Social Cord Service.

c) In no event shall Social Cord be liable for any breach by any Customer of the Terms & Conditions or any other agreement by which any Customer may be bound.

4) PARTNER OBLIGATIONS

a) Partner shall work with Social Cord to produce the Integration in accordance with the Specifications. Partner agrees to offer the Integration on the Partner Sites and Partner Applications to end users (i.e., prospective Customers) in accordance with the Specifications, this PARTNER Agreement, subject to the Terms & Conditions and other Social Cord terms applicable thereto.

b) Partner shall at all times comply with the terms of Social Cord’s Marketing Regulations, as may be updated from time to time in Social Cord’s sole discretion, and which can be found at http://socialcord.com/partner_terms.php. Partner shall not display the Integration on any Partner Site, Partner Application or other location directly or indirectly owned or controlled by Partner with or adjacent to any illegal, offensive, pornographic, obscene, violent, hate-related, controversial or otherwise objectionable material.

c) Partner agrees that if it collects any information from end users it shall do so in accordance with all applicable laws, including, but not limited to, applicable privacy and data security laws, rules, and regulations. In addition, Partner shall post a clearly visible link to its privacy policy, on each Partner Site or Partner Application through which it collects information from end users.

d) Partner shall be solely responsible for any and all royalties and other fees and payments required by any rights holders and licensors of content publicly performed on or made available on or through the Partner Sites and/or Partner Applications (including, without limitation, residuals or other payments to guilds or unions, for music clearances, Internet or wireless streaming, performance, synchronization and mechanical rights) and all other fees, royalties, charges, payments or obligations arising out of the activities contemplated by this PARTNER Agreement) and Social Cord shall have no responsibility or liability for same whatsoever.

e) Partner agrees that no Partner Sites shall use, nor shall Partner Applications be or include, Malware or be or enable distribution as Drive-by-Downloads. If any Partner Application is downloadable by an end user to end user’s computer or Mobile Device, Partner shall, at all times comply with all laws and regulations and use industry best practices with respect to the disclosures presented to and necessary consents obtained from end users and the download processes for the Partner Applications. Partner Applications shall be accompanied by Partner Applications Terms of Use and shall not be bundled with third party applications, software or Widgets.

f) Partner shall implement the Integration in accordance with the Specifications. Partner shall use reasonable efforts to promptly report to Social Cord any malfunctions, defects or non-conformities in or affecting the Integration or the Social Cord Services and take all actions reasonably required to restore the Integration and/or the Social Cord Services to proper functioning and operation. Social Cord reserves the right, at its option and without liability, to require Partner to remove or modify Integration, at any time, in any and/or all locations and instances.

g) Partner shall designate a senior manager reasonably acceptable to Social Cord who shall be the principal point of contact with Social Cord and who shall collaborate on ongoing initiatives and further collaborative opportunities.

5) OBLIGATIONS OF BOTH PARTIES

a) Except as expressly set forth in this PARTNER Agreement, as between Partner and Social Cord, each party retains all its right, title, and interest in and to its own proprietary information, material and other items and property, tangible or intangible and including all intellectual property rights therein.

b) Social Cord shall exclusively own all right, title and interest in and to Customer Data collected with respect to Customers, including, without limitation, Customers who access the Integration, as and if applicable. Partner shall not, directly or indirectly, disclose, process or use or authorize, enable, encourage or permit any third party to disclosure, collect, retain or use any Customer Data.

c) Except as otherwise expressly provided herein, each party is responsible for all costs and expenses incurred by it in connection with the performance of its obligations under this PARTNER Agreement.

6) PAYMENT; TAXES

a) Payments. In consideration of the rights and obligations set forth herein, Social Cord shall pay Partner a commission for Customers obtained and which Partner can document were obtained through Partner Application and Integration hereunder, in accordance with the following payment schedule (“Payment”):

Service	Then the Payment per Customer (US$) for each subscribed member that calendar month shall be:
Social Cord Alerts	$1.25
Social Cord Fan Club	$1.80

b) Within sixty (60) days after the end of each calendar month, Social Cord shall pay Partner all Payments due Partner for that calendar month, unless the payment is less than $100 in which case Payment will be aggregated with the following months until at least $100 is reached. No other payments or fees shall be due or payable by Social Cord to Partner or any other party under or as a result of this PARTNER Agreement. Payments by Social Cord will be accompanied by a report, in reasonable detail, providing the basis for the Payment.

c) All Payments made by Social Cord under this PARTNER Agreement are free and clear of, without reduction for, and exclusive of any taxes; provided, however, that if required by applicable law or regulatory authorities, Social Cord may reduce such Payments by the amount of any tax, duties or government required payments or fees (“taxes”) for which Partner is responsible, and pay same to the appropriate authorities and shall provide Partner notice of same. Partner agrees to complete all paperwork reasonably required by Social Cord to make Payments, before Social Cord will be obligated to make any Payments to Partner hereunder. Other than federal and state taxes imposed on the net income of Social Cord, Partner will bear responsibility for all taxes resulting from this PARTNER Agreement.

7) CONFIDENTIAL INFORMATION

a) “Confidential Information” means any and all trade secret, proprietary, confidential and sensitive information of Social Cord, whether marked as “Confidential” or identified with a similar designation, is known to be confidential, is identified or orally disclosed as being proprietary and/or confidential, or is obtained under circumstances in which it is or should be reasonably clear such information is proprietary and/or confidential. Partner shall not use or disclose, directly or indirectly, for its own benefit or the benefit of any other party any Confidential Information, except as necessary for performance of its obligation under this PARTNER Agreement and for no other purpose whatsoever. Even when disclosure and/or use is permitted, Partner shall limit disclosure and use exclusively to its employees and agents with a need to know such Confidential Information to perform under this PARTNER Agreement; provided that each such employee or agent agrees to be bound by and comply with at least the same level of protections and restrictions as Partner hereunder.

b) Neither party shall issue a news release or public announcement regarding this PARTNER Agreement or refer to or use the Marks of the other in publicity or marketing communications, without the prior written consent of the other party.

8) TERM; TERMINATION

a) The term of this PARTNER Agreement will begin on the Effective Date, which is the date Social Cord notifies Partner of acceptance of its Application and will continue until terminated by either party as permitted (“Term”). Either party may terminate this PARTNER Agreement upon twenty-four (24) hours’ prior written notice to the other.

b) Upon termination of this PARTNER Agreement, any provision which must survive to give effect to its plain meaning, shall survive termination of this PARTNER Agreement. Upon termination of this PARTNER Agreement, Partner will immediately cease using Social Cord Tools, Social Cord Services and Social Cord Marks and will return all Confidential Information in its possession or under its control to Social Cord unless Social Cord requests the return of same within 48 hours of termination of this PARTNER Agreement.

9) REPRESENTATIONS AND WARRANTIES

a) Partner represents and warrants to Social Cord that: (i) it has the full power and authority to enter into this PARTNER Agreement; (ii) neither the execution of this PARTNER Agreement nor the performance of its obligations, provision of its services or furnishing or development of any goods, services, materials, information or other items, tangible or intangible, including, without limitation, Partner Sites, Partner Applications, Partner Marks, any portions of the Integration developed or provided by Partner, (individually and collectively, “Partner Materials”), do not and will not violate any other agreement by which it may be bound, nor infringe upon or misappropriate the rights or interests of any other party; (iii) upon acceptance of Partner’s Application by Social Cord, this PARTNER Agreement constitutes a legal, valid, and binding obligation of Partner, enforceable in accordance with its terms; (iv) Partner shall perform its obligations in compliance with all laws, rules and regulations and industry guidelines and best practices applicable to its business and activities; (v) it has all necessary rights, title, and interest in and to the Partner Materials, to perform its obligations free and clear of all claims, demands, encumbrances, liens and security interests; (vi) to Partner’s knowledge, using reasonable industry standard and commercial measures, the Partner Materials are free of Malware; (vii) the Integration developed, provided and/or controlled by Partner will be in accordance with the Specifications; (viii) no Partner Material or activities or conduct will slander, defame, libel or invade the right of privacy, publicity or other rights of any person or generate spam, phish or violate any law, (viii) the Partner Applications are not and will not be Malware, Adware, Spyware or be distributed as Drive-by-Downloads and will comply with the terms and policies of any sites on which they are placed and (ix) it will not export the Integration or Social Cord Tools in any manner contrary to the export regulations of the United States. Partner will not remove or alter any rights or other notices, symbols, or labels of Social Cord.

b) Partner shall: (i) conduct its business in a manner that reflects favorably at all times on Social Cord Services and the good name, goodwill and reputation of Social Cord; (ii) avoid deceptive, misleading or unethical practices that are or might be detrimental to Social Cord or the public, including but not limited to disparagement of Social Cord or its services or products; and (iii) make no representations, warranties or guarantees to third parties with respect to the Social Cord, Social Cord Services, Social Cord Tools or otherwise with respect to Social Cord.

c) UNLESS EXPRESSLY SET FORTH IN THIS PARTNER AGREEMENT, NEITHER PARTY MAKES ANY OTHER OR DIFFERENT REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, TO EACH OTHER TO ANY CUSTOMER OR ANY OTHER PARTY UNDER THIS PARTNER AGREEMENT. BOTH PARTIES EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR PERFORMANCE. SOCIAL CORD MAKES NO REPRESENTATION OR WARRANTY THAT THE SOCIAL CORD SERVICE WILL BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE OR OPERATE WITHOUT ERROR.

10) LIMITATION OF LIABILITY; INDEMNIFICATION

a) In no event shall Social Cord be liable to Partner for any indirect, consequential, incidental, punitive, special exemplary or other such damages, regardless of the form of action or the basis of the claim and whether or not a party has been advised of the possibility of such damages. If, for any reason, Social Cord shall be found liable to Partner in damages and notwithstanding any claim that such damages are inadequate or that any remedy fails of its essential purpose, in no event shall Social Cord’s liability hereunder exceed provable direct damages no greater than the amount of Payments Partnerd to Partner by Social Cord in the six (6) months immediately preceding the first date the claim or cause of action arose; provided, however, that the foregoing limitation shall not apply to undisputed Payments owed by Social Cord to Partner for the proper performance of its obligations hereunder.

b) Partner agrees to defend Social Cord against any and all claims, demands, proceedings, actions and causes of action brought by a third party that is based upon, arises out of, or relates to the alleged or actual breach of any of Partner's representations, warranties, obligations or covenants in this PARTNER Agreement (“Claims”). Partner further agrees to indemnify and hold Social Cord harmless from and against any and all losses, damages, liabilities, costs and expenses (including reasonable attorneys’ fees) arising out of any Claims.

11) General

a) Assignment. Partner may not assign, transfer, subcontract or delegate any of its rights or obligations under this PARTNER Agreement without the prior written consent of Social Cord and any attempt to do so without such consent shall be void.

b) Governing Law; Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York that apply to contracts made and wholly performed by parties in New York. The federal and state courts in the State, City and County of New York have and the parties hereby submit to the exclusive jurisdiction of such courts.

c) Independent Contractors. The parties are independent contractors and neither has any right to obligate or bind the other. There are no third party beneficiaries.

d) Notices. All notices under this PARTNER Agreement must be in writing, sent by registered mail, return receipt requested, by facsimile transmission with machine confirmation or delivered personally to the address specified in the Application. All notices will be presumed to be effective when personally delivered, upon receipt of facsimile transmission delivery receipt or three (3) days after mailing as specified.

e) Interpretation. Headings are for reference and do not affect meaning. Words will not be construed against the party that drafted them. Waivers of any rights, remedies, options or otherwise are only effective if made in writing and signed by both parties and only apply to the extent set forth therein. Amendments must also be in writing and signed with the physical handwritten signature of both parties to be effective and no conduct, trade usage, practices or custom, nor any exchanges of emails or other communication shall be construed as a writing or serve to amend this PARTNER Agreement.

f) Entire Agreement. This PARTNER Agreement, together with all documents and materials specifically referred to in this PARTNER Agreement and which are incorporated by this reference and form a part of this PARTNER Agreement, represents the entire agreement and understanding of the parties with respect to the subject matter and supersedes all prior and contemporaneous agreements, representations, negotiations and/or understandings, written or oral, for all purposes.