Please read this Affiliate agreement carefully. This Agreement contains the complete terms and conditions that apply to you when becoming an affiliate in SmartSender’s Affiliate Program.You acknowledge that by submitting the online application you are agreeing that you have read and understood the terms and conditions of this agreement and that you agree to be legally responsible for each and every term and condition.
This Agreement is a legal document between you and the SmartSender that describes the affiliate relationship we are entering into. This agreement covers your responsibilities as an affiliate and our responsibilities to you.
1.1 SmartSender is an online service, offered through the URL http://web-05.sndmart.xyz (hereafter refer to as the ‘Website’), a platform to create, send, and manage text and multimedia messages and emails (hereinafter referred to as “the Services”) to individual recipients.
1.2 SmartSender is owned and operated by Smart Sender PLC (osaühing or OÜ in Estonian) registered in Estonia, Tallinn, (hereinafter referred to as ‘SmartSender,’ ‘we,’ or ‘us’).
1.3 Affiliate Partner – a legal person, an entity or the representative of an entity (hereinafter referred to as “the Affiliate ”, “you,” “your,” and “yours”) is entering into an agreement with SmartSender.
1.4 Collectively the parties to this Agreement (SmartSender and You) will be referred to as “Parties” or individually as “Party”.
1.6 We may refuse and/or not accept any applicant at our sole discretion. To complete however your participation as a member of our Affiliate Program you must complete registration to our Platform. The above application and registration as a member of our Platform are necessary even if you don’t make use of our services, solely in order to be able to become our Affiliate Partner and participate in our Affiliate Program.
2.1 In order to participate in our Affiliate Program, you declare that:
a) You are either a legal entity (business) that has been lawfully registered in your jurisdiction and that owns lawful tax credentials in your jurisdiction and can issue lawful invoicing documents or a natural person who owns lawful tax credentials in your jurisdiction. In both cases, you should have full contracting and legal capacity. You bear the responsibility to declare whether you act on behalf of a business or a natural person.
b) Your business or yourself (if natural person) is the owner or has the lawful license to operate the website that will participate in our Affiliate Program.
c) If a business you act as the legal representative and/or have the legal power to represent the business that will participate in our Affiliate Program.
d) Your website is not a parked domain nor a webpage without any content (or with any unlawful content) and/or does not contain (nor shall it contain in the future) any of the forbidden content and activities referred to in the present TCs.
2.2 To begin the enrollment process, you will first be asked to complete and submit the online application at SmartSender Platform.
By submitting your application to us you lawfully declare that:
a) All representations of article 2.1 are applicable.
b) All the data in your application are true and accurate and correspond to you, your business and your website.
Submitting an Affiliate Application does not guarantee inclusion in the Affiliate Program. The fact that we auto-approve applications does not imply that we may not re-evaluate your application at a later time. We may reject your application at our sole discretion or terminate any time in the future.
If we choose not to allow your inclusion in the Affiliate Program, we will attempt to notify you in a reasonable manner. If you don’t hear from us within a reasonable time frame, please consider your application rejected. We are not obligated to provide you any explanation for your rejection, but please be advised we may reject applicants for any reason or manner, including but not limited to a website or social media page which violates our Policies.
If your Affiliate Application is rejected, you may not reapply. If your Affiliate Application is accepted, each of the terms and conditions in this Agreement applies to your participation. We may also ask for additional information to complete your Affiliation Application or for you to undertake additional steps to ensure eligibility in the Affiliate Program.
2.3. You acknowledge that all the above representations (in articles 2.1. and 2.2.) are an absolute prerequisite for your participation in our Affiliate Program. In case that any of the above is untrue, false or inaccurate, we shall have the right to terminate and ban you from our Affiliate Program for cause (in this case no commission will be payable to you and/or we reserve the right to exercise any further claim we might have against you).
2.4. We may refuse your application and/or terminate and ban you from the Affiliate Program for cause as described previously in article 2.3 if we find out, or have reasonable indications that your site is unsuitable for our Program, including (but not limited to) if it:
i) Promotes and or contains sexually explicit materials and/or content.
ii) Promotes violence and/or terrorism.
iii) Infringes any rights of children or minors.
iv) Promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age.
v) Promotes, incorporates, and/or contains illegal activities and/or content of any type.
vi) Incorporates any materials or procedures which infringe (or are likely to infringe) or assist others to infringe on any copyright, trademark or other intellectual property rights or to violate the law.
vii) Includes “SmartSender” or variations or misspellings thereof in its domain name. The affiliates should not use the word “scam” or similar negative words, for negative publicity.
viii) Contains software downloads that potentially enable diversions of commission from other affiliates in our program.
ix) You may not create or design your website or any other website that you operate, explicitly or implied in a manner which resembles our website nor design your website in a manner which leads customers to believe you are and/or you have any association with (other than the co-operation described in the present TCs) SmartSender or any other affiliated business.
3. Affiliate Program
3.1 As soon as we accept your application you will be provided with the unique affiliate ID.
3.2 As part of our Affiliate Program, you will have access to all the information, content and links of our services we are offering for sale. You hereby agree to fully cooperate with us and to only use the information and the links which are prior approved by us.
We reserve the right to create the banners at our sole discretion and to add, remove or replace content at any time.
3.3 We have the right (but we are under no obligation) to monitor your website at any time in order to determine if you are compliant to the terms and conditions of the present Agreement as well as in order to make sure that the links and references to our website are corresponding and are appropriate to our Affiliate Program. In this context you agree that we may notify you, at our sole discretion, of any changes we think appropriate (or necessary) for your website and to the links and/or references you make to us. If you do not abide by our requests with the time frame set, we reserve the right to terminate your participation in the SmartSender Affiliate Program under the terms of article 3 below.
3.4 We reserve the right to assign part (or the whole of) the present Agreement and Program to any third party who works with us for the execution of our Affiliate Program. In addition, we can use any third party as our subcontractor for the execution of any (or all) processes and/or operations related to our Affiliate Program.
3.5 In case that you breach any of the above warranties (contained in the present article 2), notwithstanding any other rights and/or claims we might have against you, you shall indemnify and hold us harmless against any and all actions, claims, demands for any damage or loss, costs, charges, proceedings and expenses (including legal fees), arising out of or in connection with, or incurred by reason of any infringement of any of the above.
3.6 When a Client you refer, purchases services of SmartSender, you begin to receive commissions on this payment on a monthly basis for as long as the customer continues to pay for the account. We pay commissions for any paid plan subscription that your referral purchased only within the first 12 months or one-time payment if it is an annual plan. And if the customer upgrades to a plan with a higher payment, your commission increases too.
4.1. The duration of the present Agreement begins upon our acceptance of your application to our Affiliate Program and is open-ended; it shall continue unless terminated under the conditions set hereunder. In specific, either you or we may end this Agreement AT ANY TIME, with or without cause, by giving the other party written notice via email. You can contact us at email@example.com. We will contact you at the email address you have provided in our application form (or any other alteration you have submitted thereof). Termination is immediate upon receipt of the termination email (proof of delivery to the inbox of the recipient suffices). We reserve the right to set a termination deadline in our termination email at our sole discretion, otherwise, termination is immediate. In case of termination for convenience, your commission will be payable as set in 6.2. below.
4.2 SmartSender reserves the right to ban you from the Affiliate Program and to terminate this Agreement without prior notice should you breach any statutory or legal obligation in relation to the Affiliate Program. In that case, notwithstanding any other right or claim that we might have against you, you shall not be entitled to payment of any pending commission. We also reserve our right to seek the return of any payment made for commissions you have earned up until the termination of the Agreement (irrespective of when we found out about the breach). In addition, in case we terminate this Agreement for cause, you (and your business) are not entitled to register again in our Affiliate Program (either for the same website or for any other website you own, use or control).
4.3. We also reserve our right to terminate the present Agreement and to ban you from the Affiliate Program with or without prior notice in case that your Affiliate Program remains inactive for more than 180 days.
4.4. We reserve further our right to terminate the Affiliate Program as a whole. In that case, we shall inform all our Affiliate Partners with a generic notification in our Platform (with or without a deadline). In that case, we reserve our right to announce a gradual payment of any pending commissions to our Affiliate Partners, deviating from article 7.2. below.
4.5. In any case of termination (with or without cause), you must refrain immediately from any further link and/or other marketing or promotional activity related to SmartSender as an Affiliate Partner. Also, you must refrain immediately from using any trademark or other IPR material that is owned or associated with us as well as from using any confidential information that we have become aware of due to your participation in our Affiliate Program. The present clause survives the termination of the Agreement.
We may modify any of the terms and conditions of our Affiliate Program and/or this Agreement at any time at our sole discretion. In that case, you shall be notified with a generic notification. Modifications may include but are not limited to, changes in the payment procedures, in the participation prerequisites, in the rights or obligations, etc. In case you don’t agree with any modification, you have the right to terminate the Agreement as provisioned in clause 4.1. Any changes will be applicable from the time set in the notification uploaded in the Platform.
6.1. You shall receive a commission on a pay per sale/scheme that operates as follows:
a) Your right to receive a commission will start as soon as we get a sale/purchase from the clicks we receive from your website. As a “sale/purchase” we define the purchase of a paid account from our Platform (monthly plan or annual plan) and not just the registration as a Platform member nor when the member remains inactive in the Platform. Please be advised that we DO NOT treat as a “sale/purchase” the connected additional services like “Extra Users”. “Extra Timer Views”, and “Extra Email Clients Tests”. To be eligible for a commission the user has to click first on your link and then purchase (last click attribution model as further analyzed in d below).
b) this commission is calculated as follows:
defined percent (%) of the amount received from every sale/purchase (total amount before taxes and discounts applied to it) on condition that you have the right to receive that commission as defined in paragraphs a), c) and d) of the present article.
You solemnly declare that the above-agreed commission is reasonable and fair for the service provided and covers also any goodwill and clientele that SmartSender will obtain from your participation in the Affiliate program and that you will have no other remuneration claim against SmartSender. In case that our commission policy changes, new rates will be applicable to any sale/purchase conducted after the new charges come in force (irrespective when the last click was initiated). In case you disagree with the new commission policy, you can terminate our cooperation as provisioned in article 4.1. above. Payment will be made in US dollars.
c) The commission is due only when and if the member has fully paid his/her subscription fees for the paid account (monthly plan or annual plan) to us. This commission is payable for each month that the member is an active paid customer of ours or for each year of service on condition that our member has paid his fees fully to us.
d) For the avoidance of any doubt, it must be noted that we will reward with a commission for a specific sale/purchase of a new member in our Platform the Affiliate Partner whose link to SmartSender served as the last click to our Platform. “The last click wins” Hence when a paid account is opened for the first time, the Affiliate Partner that served as the last click will be eligible for commission (on condition that that Partner is still a member in the Affiliate Program, otherwise the next in line will be eligible).
In order to pay the commission to you, conditions a), c) and d) above must apply cumulatively. We reserve the right to refuse the registration and/or sale/purchase to any new member such as indicatively (but not exhaustively) to those that do not comply or abide by the principles and provisions set in our Platform’s Terms and Conditions.
6.2. Commissions are calculated and cleared at the beginning of each contractual month. In specific, we review the sales/purchases conducted within the previous months in relation to the members attributed to every Affiliate Partner as set in 4.1. a) – d) above. We both accept that the logs (track records) that SmartSender keeps in the back office of Platform regarding the clicks from your website as well as the sale/purchase conducted within each contractual month are absolute proofs of whether you have established the right to receive the commission set in the present Agreement. You can visit your Account in our Platform to have a real-time view of the status of your Affiliate Program. However, you agree that the data in your Account are only temporary and shall be finalized only with the final calculation and clearance that will take place at the beginning of each contractual month. In any case, you will be entitled to receive payment only for those members that have fully paid our remuneration for our services (monthly plan and/or annual plan). Therefore, for any pending member’s payments, you shall receive the commission within the contractual month that this payment was covered by the member.
6.3. So, further to the previous process, we will send you an email with the commission you are entitled from the sales/purchases of the previous month. In order to receive your payment you must send us the following data:
a) Your PayPal Email. You declare that the PayPal details provided are true and accurate and correspond to the business that is the owner and/or the lawful user of the website that you have registered as our Affiliate Partner. Payment to that account dismisses us from any liability of payment of the relevant commissions to you (and the business that you have declared that you represent when applying for the Affiliate Program as set in article 2.1). If we are so notified in writing by any party, we reserve the right to refuse further payment to that account.
b) If you are a business you must first send us a valid invoice with electronic means issued by the same business that is registered as our Affiliate Partner. The invoicing details of our company are:
Smart Sender OÜ
Sepapaja tn 6, Tallinn, 15551,
Harju County, Estonia
In your invoice you must include (in addition to any other mandatory data) also the following data: i) your Affiliate Partner ID and ii) the month of your payment.
We shall remit payment to you 20 days from receipt of the invoice in our email firstname.lastname@example.org (always include the word “Invoice” in the subject line). We reserve the right to refuse/suspend payment until we receive a valid invoice; we can request from you to resend us a new appropriate invoice if your initial invoice is not valid in our jurisdiction.
c) If you are a natural person we shall remit payment to you within the first 20 days of the month following the month in which you earned your commission. For U.S. residents, we cannot pay more than $600 per year without a W9 tax form on file.
In any case whatsoever either a business or a natural person, you bear all the responsibility to abide by your tax rules and to comply with all relevant laws and obligations (as well as to receive any administrative or other license that might be required for the receipt of the commission for participation in the Affiliate Program).
7.1. You are free to promote your own websites, but any promotion that mentions SmartSender could be perceived by the public or the press as a joint effort. For that reason, you should take all reasonable effort to make sure that our companies always remain distinct and you are not allowed to make any representation or undertake any other legal commitment on the name or on behalf of SmartSender. You should know that certain forms of advertising are always prohibited by SmartSender. For example, advertising commonly referred to as “spamming” is unacceptable for us and could cause damage to our name. Other generally prohibited forms of advertising include the use of unsolicited commercial email (UCE), postings to non-commercial newsgroups and cross-posting to multiple newsgroups at once. In addition, you may not advertise in any way that effectively conceals or misrepresents your identity, your domain name, or your return email address. You may use mailings to customers to promote SmartSeder so long as you have lawfully collected the personal data of the recipient (like indicatively but not exhaustively, the recipients is already a customer or subscriber of your services or website), and recipients have the option to remove themselves from future mailings (opt-out/unsubscribe). Also, you may post to newsgroups to promote SmartSender so long as the newsgroup specifically welcomes commercial messages. At all times, however, you must clearly represent yourself and your websites as independent from SmartSender.
7.2 You should not misuse the Platform, the Affiliate Account Manager, the content provided by SmartSender nor hinder or interfere in any way to their operations or replace or modify the content. You should refrain from committing or encouraging any criminal offense, transmit or distribute viruses, or post any other malicious or technologically harmful material. You should abstain from committing any actions that can lead to unacceptable or extensive damage to the infrastructure or operation of the Platform and the Affiliate Program and you should not use the Platform and the Services in breach of confidence, privacy, or in any offensive or obscene way and in general in any illegal way.
7.3. Trademarks, logos as well as the URL of SmartSender belong exclusively to us. Display of SmartSender’s logo on your website for the performance of the Affiliation Services does not imply the license of using it either the connection between SmartSender and yourself, apart from what is laid down in the present Affiliate Program. We do not provide to you or third parties any license or consent for use of the trademarks in no way apart from what is provided in the present Agreement.
7.4. We reserve our right (if necessary and/or if we are under the legal obligation) to report any breach coming to our attention to the relevant law enforcement authorities under the conditions laid down in the applicable laws of Estonia.
8.1. Your Personal Data:
i) We collect and process your data with the sole purpose of executing the present Agreement and of realizing our cooperation as set in the present Affiliate Program. We respect your data privacy; all the data collected are necessary, relevant and appropriate for the performance of the Affiliate Program. By filling in your registration data in the application form you provide your consent for the processing of your personal data for the purposes of the present contractual relationship within our Affiliate Program.
ii) Any information provided by you will be considered as valid and true; we shall be dismissed from any and all liability regarding communication obligations if we use the contact details provided by you.
iii) You have the legal right to access your data at any time as well as the right to raise any reasonable and lawful objections. We do not announce any personal data to any third party other than: i) The data we provide to our partners who are providing us the affiliate tracking platform; ii) those data related to the execution and clearing of electronic payments performed by trusted partners – payment service provides financial institutions who follow all appropriate procedures of security for safeguarding the information, and iii) to our subcontractors (like for instance our partner that proceed to the end those data which are absolutely necessary for the provision of the Affiliate Program).
8.2. Collection and processing of Your users/Client’s personal data:
i) We shall collect your Customers’ limited personal information for tracking purposes (IP address and visits to our website as well as the initial root of the click) with the use of tracking cookies. You bear the responsibility of informing your users/clients that you use third party (SmartSender) affiliate Program cookies (which are absolutely and technically necessary in order to track the clicks of your users/clients to our Platform and to reward you with the commission as laid down in article 5.1. above).
iv) Up to the moment a Customer is registered in our Platform, we are solely the Processors of the limited Personal Data referred to in i) above. Being the Controller of those personal data you declare that you have the lawful rights to assign to us the processing of those data subject to i) and iii) above.
7.3. Any data related to the present Affiliate Program, its policies, and guidelines, our market and marketing strategy, the content created to be used, statistics or other commercial data related to the Program and/or the platform, the customers and the overall clientele of the Platform (overall “Confidential Information”) are SmartSenders’s own trades secrets and confidential information and should be treated in strict confidence and privacy. Information that is not considered as confidential information and trade secrets is information related to the above that:
7.4. The present clause survives the term or termination of the present Agreement.
You represent and warrant that:
9.1. This Agreement has been duly and validly executed and delivered by you and constitutes your legal, valid, and binding obligation, enforceable to all parties in accordance with its terms;
9.2. You have the 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;
9.3. You participate in the present agreement as a “business” entity within the meaning of the Directive 2011/83/EC meaning that you are a natural or legal person within the course of your business activity. The present agreement is a B2B distance sales contract.
9.4. You have sufficient right, title, and interest in and to the rights granted to us in this Agreement.
10.1. This Affiliate Program is not designed as a personalized Service; it is formed as a generic service package addressed to multiple recipients and is provided “as is”. We do not guarantee the “fit for purpose” of the Program and do not guarantee or promise that through the Program will increase its clientele or its turnover.
10.2. You acknowledge and declare that we are in no way related or connected and that your business’ content, operating methods and transactions ARE NOT conducted through the Platform and ARE NOT controlled by SmartSender in any way. Therefore, SmartSender has no knowledge, bears no responsibility and does not guarantee the correctness, lawfulness, completeness, truth, precision or quality of the content and/or the products or services provided by you. Further, we are not responsible for any actions or omissions, loss or damage which can be caused to the Customers or to any third party due to or in connection to the use or visit or transaction with your business. We DO NOT participate in and are not a contracting party in the agreements executed between You and your Customers and any third party.
10.3. Unless it is otherwise expressed in the present Agreement and to the maximum extent permitted by Law, SmartSender explicitly excludes hereby any conditions, guarantees and other terms which may be arisen by the applicable Law andSmartSender will not be liable for any damage, including but not limited, direct, indirect, consequential, punished or incidental damages or damages for loss of use, profits, data or other property, damage to reputation or name, the cost of providing substitute products and services which arise from or are related to the use, inability of use, operation or failures of the Platform and/or the Affiliate Program, regardless of whether these losses could be predicted or arise within the context of this contract, from services offered by SmartSender within the Agreement or in tort, based on the applicable legislation or otherwise. In case of any proven damages of any Affiliate Partner or of any third party due to proven intent (fraud) or gross negligence of SmartSender that is directly associated with any act or omission of SmartSender, then any such liability concerns exclusively actual damage while in case of proven slight negligence any such liability only concerns actual damage too which is limited to the amount that equals to 3 times the commission you have received from in the previous 6 months. Any and all limitations of liability limitations set out in the present Agreement are mutually agreed, fair and valid and have been acknowledged and accepted by the Members that participate in the present agreement as enterprises involved within the context of their business status.
10.4. We take all reasonable efforts so that the Program and access to your Account can take place smoothly and without interruption and that the adequate level of security necessary is maintained. However, we do not guarantee that the pages, services, selections, contents, prices, descriptions and the availability of the applications/services will be provided without interruption and without errors. We are not liable, though, if for any reason, negligence included, the operation of the Program or the platform or of your Account is interrupted or access to the Platform or the Account becomes difficult and/or impossible or if, despite the maintained security measures, viruses or other harmful software is identified and transmitted to the terminals of the users/visitors, or if third unauthorized parties intervene in any way to the content and operation of the website or the platform making the use difficult or causing problems to its proper function. Moreover, we are not liable in case of access break to the website or the platform, for reasons beyond our control as well as for reasons due to technical or other failures of the backbone network or for reasons of force majeure or incidental facts. It is also clearly indicated that in case of any loss or damage of data from your Account we are only liable solely for reposting the data based on the back up which the Member is obliged to take according to the reference in Article 1.6 d) above. In any case whatsoever, SmartSender bears no liability in case of any error or interruption of the services due to any technical or other failures of the E-business website.
10.5. In any case, you are exclusively responsible for any damage may occur to us by incorrect or improper use of our Affiliate Program. You also bear the responsibility to compensate, defend and exempt SmartSender and its directors, officers, employees, consultants, representatives and affiliates from any, and all, claims by third parties, liability, damages and/or costs (including, but not limiting, legal consultants fees) which occur because of or in connection to the use of the Affiliate Program or from the breach of the Agreement or in case any customer or third party turns against us for any of your acts or omissions.
This Agreement and the interpretation of its terms shall be governed by and construed in accordance with the laws of the Republic of Estonia and subject to the exclusive jurisdiction of the courts located in Tallinn, Harju County, Estonia.
12.1. The above Agreement shall bind all contracting parties (SmartSender and Affiliate Partners) and constitute our entire agreement.
12.2. Any delay by the parties in practicing all or part of the rights arising from these terms does not entail weakening or waiving of this right which may be practiced at any time at a later stage and during the reasonable discretion of the beneficiary.
12.3. We may not amend or waive any provision of this Agreement unless in writing and signed by both parties.
12.4. The headings and titles contained in this Agreement are included for convenience only, and shall not limit or otherwise affect the terms of this Agreement.
12.5. If any provision of this Agreement is held to be invalid or unenforceable, that provision shall be eliminated or limited to the minimum extent necessary such that the intent of the parties is effectuated, and the remainder of this agreement shall have full force and effect.
Last updated: 01 January 2020