Refer-a-Friend Program Terms and Conditions

Updated -

SmugMug, Inc.

Refer-a-Friend Program Terms & Conditions

Date of Last Revision: February 27, 2014

Thank you for participating in the SmugMug, Inc. ("SmugMug") refer-a-friend program ("Refer-a-Friend Program"). By distributing Links (defined below) to prospective SmugMug customers, you (as either an individual or an entity) agree to be bound by the following terms and conditions ("Refer-a-Friend Program Terms") any and all guidelines or documents associated with the SmugMug refer-a-friend program, including those available on the SmugMug Help Page ("Guidelines"). You are also required to comply with the SmugMug Terms and Conditions of Use ("SmugMug Terms"), which are incorporated in these Refer-a-Friend Program Terms by reference. Any capitalized terms not defined in these Refer-a-Friend Program Terms are defined in the SmugMug Terms.

These Refer-a-Friend Program Terms, the SmugMug Terms and the Guidelines (the "Program Documents") collectively govern your participation in the Refer-a-Friend Program. The Program Documents form a legal agreement between you and SmugMug, so please read them carefully. If you do not agree with any of the Program Documents, you are not permitted to participate in the Refer-a-Friend Program. In the event of any inconsistency between any of the Program Documents, these Refer-a-Friend Program Terms control, followed by the SmugMug Terms and then the Guidelines. Our Privacy Policy provides information regarding how SmugMug collects, uses and discloses your personal information and protects your privacy when you use SmugMug.

In addition to the Refer-a-Friend Program, SmugMug offers a marketing program through ShareASale, a third-party referral program management service ("SmugMug Partner Program"). More information about the SmugMug Partner Program is available here. You are not permitted to participate in both the Refer-a-Friend Program and the SmugMug Partner Program. If SmugMug determines that you have registered for both the SmugMug Partner Program and the Refer-a-Friend Program, SmugMug may, at its discretion, terminate your participation in either or both programs, and/or terminate your SmugMug account in accordance with the SmugMug Terms.

1. SmugMug Refer-a-Friend Program

Links
 
You must have a SmugMug account that is active and in good standing (e.g., current on all applicable subscription fees) in order to participate in the Refer-a-Friend Program.
 
SmugMug will provide you with unique referral links ("Links") that identify you as the referral source for prospective SmugMug customers ("Prospective Customers"). The Links are available in the Account Settings page of your SmugMug account. You are permitted to distribute Links to Prospective Customers for the purpose of promoting the Services (as defined in the SmugMug Terms). Prospective Customers using your Links will receive a percentage discount (described in the Guidelines) off their initial order of a subscription plan to the Services. Links are valid only for the purchase by a Prospective Customer of a new subscription plan and not for any other SmugMug products or services (e.g., the purchase of photography prints or subscription renewals). SmugMug may discontinue or invalidate Links at any time (including if SmugMug suspects fraudulent or improper use) with notice to you. You will be responsible for notifying Prospective Customers of the invalidity of any previously distributed Links.
 
Your Benefits
 
Each time a Prospective Customer uses your Links to purchase eligible Services, you will receive a credit in your SmugMug account that you may apply to towards future purchases of certain SmugMug Services. The Guidelines describe (a) the credit amount that you will receive each time a Prospective Customer purchases Services using a Link (which amount may be changed by SmugMug at any time with notice to you); (b) when such credits will be posted to your SmugMug account; and (c) the SmugMug Services eligible for purchase using these credits. No other compensation of any kind is payable by SmugMug to you in connection with your participation in the Refer-a-Friend Program. Credits are not redeemable for cash or any other payment. If your SmugMug account is terminated for any reason, any unused credits in your account will be considered null and void.
 
Subscription Orders
 
The Services ordered by Prospective Customers will be governed by the SmugMug Terms. SmugMug has the right to reject orders for the Services that do not comply with SmugMug's requirements. Prospective Customers who purchase the Services using a Link are SmugMug's customers with respect to all activities they undertake in connection with the Services.

Your Responsibilities & Obligations

You have no authority to assume or create any obligation or warranty, express or implied, on behalf of SmugMug or to represent SmugMug in any capacity, except as expressly set forth in these Refer-a-Friend Program Terms. You have no authority or control over the prices or fees for the Services.

The relationship between you and SmugMug will be solely that of service provider and independent contractor, and nothing in these Refer-a-Friend Terms will create or imply any partnership, joint venture, agency, franchise, sales representative or employment relationship.

You will not (a) make any false, misleading or disparaging representations or statements with regard to SmugMug or the Services; (b) engage in any unfair or deceptive trade practice involving any of the Services; (c) use any “spam” emails, "junk mail" or similar unwanted advertising or promotional materials in connection with the promotion of the Services or Links; or (d) sell Links to Prospective Customers in exchange for a fee or other compensation. You will comply with all applicable laws, rules, regulations or orders ("Applicable Law") as well as with the Program Documents and any other policies and procedures of SmugMug made available to you in connection with your participation in the Refer-a-Friend Program.

You are responsible for (a) all costs and expenses incurred by you in connection with your participation in the Refer-a-Friend Program; and (b) any and all taxes, fees, duties, tariffs or charges which may be imposed on you in connection with your participation in the Refer-a-Friend Program.

2. Marketing and Promotion

SmugMug Marks and SmugMug Materials

Section A.3 of the SmugMug Terms permits SmugMug users to download and use the SmugMug Marks subject to certain use rights, terms and conditions. You are permitted to use the SmugMug Marks in connection with your participation in the Refer-a-Friend Program, provided that (a) you may not develop any marketing or advertising materials using the SmugMug Marks without SmugMug's prior written approval and (b) your use of the SmugMug Marks must otherwise comply with the SmugMug Terms. Further, SmugMug grants you a limited, non-exclusive, right to use any Refer-a-Friend Program marketing or advertising materials provided to you by SmugMug ("SmugMug Materials") for the limited purpose of promoting the Services to Prospective Customers. You may use SmugMug Materials only as directed by SmugMug and in exactly the form provided to you by SmugMug without alteration. All right, title and interest in and to the SmugMug Marks, SmugMug Materials and all goodwill associated therewith will remain and vest with SmugMug.

Distribution of Links

You may distribute Links via email, social media (e.g., Facebook, Twitter), blogs forums, on your personal or business websites or blog, or through any other means of promoting the Services; provided, however, that you will not (a) utilize any marketing methods that violate these Refer-a-Friend Program Terms; (b) infringe, dilute or otherwise violate the intellectual property rights of any third parties; or (c) violate any Applicable Law in connection with such marketing activities.

Further, you will:
  • only distribute Links provided to you through your Account Settings;
  • not manipulate or change the Links in any manner;
  • not distribute Links obtained from any means other than your Account Settings, including via the SmugMug Partner Program operated by ShareASale, customer e-mails, paid searches or any other campaign;
  • not engage in cookie stuffing and or include pop-ups, false, or misleading links on your website;
  • attempt to mask the referring URL information for a Link (i.e. the page from where the Link click is originating);
  • not use redirects to give the appearance that a Prospective Customer's click on a Link came from another domain and
  • not purchase ads or keywords on any search engine or third party site using the Links or any other SmugMug Materials.
You will not post Links or solicit Prospective Customers on any third party coupon or similar deal websites. If we discover that you are distributing Links through a third party coupon code website, we reserve the right in our discretion to void all of your accrued credits and/or terminate your participation in the Refer-a-Friend Program and/or terminate your SmugMug Account in accordance with the SmugMug Terms.
 
If you use third party websites or services to promote the Services, in addition to these Refer-a-Friend Program Terms, you must comply with the website's or service provider’s own terms and conditions regarding the posting of promotional content. In addition, you must comply with the following social media guidelines:
  • You may promote the Services by posting Links on your own social media accounts (including Facebook and Twitter).
  • You may not post your Links on any public forum found on SmugMug's own social media accounts. For example, you may not post Links as comments to posts or news feed stories found on SmugMug's Facebook page.
  • You may not purchase or run ads on any social media website using the Links or any other SmugMug Materials.
Pay per click

If you engage in pay-per-click ("PPC") advertising for your website, you must adhere to the following PPC guidelines:
  • You may not bid on any SmugMug Marks (including, but not limited to SmugMug, smugmug.com, Camera Awesome, cameraawesome.com), or any variations or misspellings thereof, for search or content-based campaigns on Google, MSN, Yahoo!, Facebook or any other search or advertising network.
  • You may not use SmugMug Marks in combination with any other keyword (e.g., "SmugMug Coupons").
  • You may not use SmugMug Marks in your ad title, ad copy, display name or as the display URL.
  • You may not direct link to our website from any PPC ad or use redirects that yield the same result.
  • You may not bid in any manner appearing higher than SmugMug for any search term in position 1-5 in any auction-style PPC advertising program.
We have a strict no tolerance policy on PPC trademark bidding. If you automate your PPC campaigns, it is your responsibility to exclude the SmugMug Marks from your program. We strongly suggest that you add the SmugMug Marks as negative keywords. If we determine that you have engaged in PPC trademark bidding with any SmugMug Marks, we reserve the right in our discretion to void all of your accrued credits and/or terminate your participation in the Refer-a-Friend Program and/or terminate your SmugMug Account in accordance with the SmugMug Terms.
 
FTC Disclosure Requirements
 
You must include a disclosure statement within any websites, pages, blogs/posts, or social media posts where Links for the Refer-a-Friend Program are posted in connection with an endorsement or review and where it is not clear that the Links are paid advertisements. This disclosure statement must be clear and concise and state that we are compensating you for your review or endorsement. In addition:
  • Disclosures must be made as close as possible to the Links and related claims.
  • Disclosures should be placed "above the fold" of your website; scrolling should not be necessary to find the disclosure (e.g., the disclosure should be visible before the jump).
  • Pop-up disclosures are prohibited.
  • Disclosures must otherwise comply with all FTC disclosure requirements and any other Applicable Laws.
For more information about FTC disclosure requirements, please review the FTC's "Dot Com Disclosures" Guidelines at //www.ftc.gov/os/2013/03/130312dotcomdisclosures.pdf; and the FTC's Endorsement Guidelines at //business.ftc.gov/advertising-and-marketing/endorsements.

3. Warranty Disclaimer

SMUGMUG DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, UNDER THESE REFER-A-FRIEND PROGRAM TERMS OR OTHERWISE WITH RESPECT TO SMUGMUG'S SERVICES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, DESIGN, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. SMUGMUG MAKES NO REPRESENTATION OR WARRANTY REGARDING THE AVAILABILITY, RELIABILITY OR SECURITY OF THE SERVICES AND WILL NOT BE LIABLE FOR ANY UNAUTHORIZED ACCESS TO OR ANY MODIFICATION, SUSPENSION, UNAVAILABILITY, OR DISCONTINUANCE OF THE SERVICES.

4. Limitation of Liability

SMUGMUG WILL NOT LIABLE TO YOU FOR ANY LOSS OF PROFIT OR INCOME OR FOR ANY CONSEQUENTIAL, INCIDENTAL, OR SPECIAL DAMAGES, WHETHER IN AN ACTION FOR CONTRACT OR TORT OR IN CONNECTION WITH THESE REFER-A-FRIEND PROGRAM TERMS, EVEN IF SMUGMUG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL SMUGMUG'S CUMULATIVE LIABILITY TO YOU UNDER THESE REFER-A-FRIEND PROGRAM TERMS EXCEED THE ONE HUNDRED U.S. DOLLARS ($100.00).

5. Term and Termination

These Refer-a-Friend Program Terms commence on the date that you first distribute Links to a Prospective Customer and continue in effect for so long as you maintain a valid SmugMug account in accordance with the SmugMug Terms. SmugMug may cancel or terminate the Refer-a-Friend Program and these Refer-a-Friend Program Terms at any time in its sole discretion, with or without notice to you. You may terminate your participation in the Refer-a-Friend Program by ceasing to distribute Links. In the event of your breach of these Refer-a-Friend Program Terms, SmugMug reserves the right to limit, suspend or terminate your SmugMug account in accordance with the SmugMug Terms. Upon termination of these Refer-a-Friend Program Terms for any reason, you must (a) immediately cease distributing Links to Prospective Customers; and (b) your Links will be deactivated and no longer valid for use by Prospective Customers.

The provisions of these Refer-a-Friend Program Terms which are intended to survive by their nature will survive termination or expiration, including the sections titled "Indemnification", "Warranty Disclaimer", "Limitation of Liability" and "General Provisions".

6. Indemnification

You agree to defend, indemnify and hold harmless SmugMug and its affiliates and subsidiaries (collectively, the "Indemnified Parties"), and the Indemnified Parties' independent contractors, service providers and consultants, and their respective directors, employees and agents, from and against any claims, damages, costs, liabilities and expenses (including reasonable attorneys' fees) arising out of or related to (a) any statements, claims, representations or warranties made by you regarding the Services that were not specifically authorized in writing by SmugMug, or (b) any illegal, unfair, deceptive or unethical business practices whatsoever by you, whether with respect to the Links, Services or otherwise.

7. Modification

SmugMug reserves the right in its discretion to update and change, from time to time, these Refer-a-Friend Program Terms by providing notice that the Refer-a-Friend Program Terms have been modified. Such notice may be provided by sending an email, or by posting a notice on the SmugMug website, or by posting the revised Refer-a-Friend Program Terms revising the date at the top or by such other form of notice as determined by SmugMug. Your distribution of Links after such change constitutes acceptance of such changes.

8. General Provisions

These Refer-a-Friend Program Terms will be governed by and construed in accordance with the laws of the State of California applicable to agreements made and to be entirely performed within the State of California, without regard to its conflict of law provisions. Any dispute arising under these Refer-a-Friend Program Terms will be resolved in accordance with Section 15 of the SmugMug Terms. If for any reason a court of competent jurisdiction finds any provision or portion of these Refer-a-Friend Program Terms to be unenforceable, the remainder of these Refer-a-Friend Program Terms will continue in full force and effect. SmugMug may assign these Refer-a-Friend Program Terms, in whole or in part, at any time with or without notice to you. You may not transfer, assign, or delegate these Refer-a-Friend Program Terms to any third party. These Refer-a-Friend Program Terms, the Guidelines and the SmugMug Terms constitute the entire agreement between the parties with respect to the subject matter hereof and supersede and replace all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. Any waiver of any provision of these Refer-a-Friend Program Terms will be effective only if in writing and signed by SmugMug.

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