This Partner Program Operating Agreement (the "Agreement") is made and entered into by and between SkipperMyBoat INC. ("SMB" or "we"), and you, ("you" or "Partner") the party submitting an application to become a SMB partner). The terms and conditions contained in this Agreement apply to your participation with affiliates.skippermyboat.com ("Partner Program"). Each Partner Program offer (an "Offer") may be for any offering by SMB or a third party (each such third party a "Client") and may link to a specific web site for that particular Offer ("Program Web Site"). Furthermore, each Offer may have additional terms and conditions on pages within the Partner Program and are incorporated as part of this Agreement. By submitting an application or participating in an Offer, you expressly consent to all the terms and conditions of this Agreement.
l. Enrollment in the Partner Program
You must submit an SMB Partner Program application from our website. You must
accurately complete the application to become an SMB partner (and provide us with future updates) and not use any aliases or other means to mask your true identity or contact information. After we review your application, we will notify you of your acceptance or rejection to the SMB Partner Program, generally within two (2) business days. We may accept or reject your application at our sole discretion for any reason.
ll.Obligations of the Parties
Subject to our acceptance of you as an SMB partner and your continued compliance with the terms and conditions of this Agreement, SkipperMyBoat INC. agrees as follows: We will make available to you via the SMB Partner Program graphic SMB Partner tracking code and textual links to the Program Web Site and/or other creative materials (collectively, the "Links") which you may display on web sites owned or controlled by you, in emails sent by you and clearly identified as coming from you and in online advertisements (collectively, "Media"). The Links will serve to identify you as a member of our SMB Partner Program and will establish a link from your Media to the Program Web Site. We will pay Partner for each Qualified Action resulting in a Qualified Booking (the "Commission"). A "Qualified Action" means an individual person/Host who (i) accesses the SMB Platform/Program Web Site via the Link or inputs provided by the SMB Partner and creates an Active Host Listing, where the Link is the last link to the Program Web Site, (ii) is not a computer generated user, such as a robot, spider, computer script or other automated, artificial or fraudulent method to appear like an individual, real live person, (iii) is not using pre-populated fields
(iv) completes all of the information required for such action within the time period allowed by SMB and (v) is not later determined by SMB to be fraudulent, incomplete, unqualified or a duplicate. Where Qualified Booking requires that Partner is the Originating source of Active Host Listing on SMB Platform and has provided his SMB tracking code on the Host Listing (or emailed [email protected] for addition assistance of SMB tracking code onto Host Listing in writing) and where this Active SMB Host Vessel Listing is Booked as a Rental/Charter through the SMB Platform. All Partners must email into [email protected] a signed SMB Host Listing Agreement (provided by SMB in SMB Partner on-boarding Email) and required for Host Listing’s to go Active on the SMB platform and reach final Active status for a Qualified Booking. All signed SMB Host Listing Agreements for any Listed Vessel on SMB Platform must be received by [email protected] before any Qualified Booking reach Qualified Active Status for SMB Partner Commissions. We will pay you as an Active SMB Partner any Commissions earned monthly, provided that your account is currently greater than 20$. Accounts with a balance of less than 20$ will roll over to the next month, and will continue to roll over monthly until 20$ is reached. We reserve the right to charge back to your account any previously paid Qualified Actions or Booking Commissions that are later determined to have not met the requirements to be an SMB Qualified Action or Booking. Commissions will be paid to “ACTIVE Parter’s” (whereas Active is defined as a Partner who has listed a new Host vessel at least once every 6 months. This term beginning the first day of January and ends the last day of December. An Active Partner Lists a vessel on the SMB Platform at least twice a year in each of the 6 month terms. This 6 month term does not rely upon Partner signup date.) in the following commission amounts and term periods:
1. 25% of gross SMB Booking profit earned during the initial first 4 months a Partner is Active (beginning the day this agreement is signed). Qualified Bookings refer to only bookings made on new vessels the Partner has listed with SMB on the SMB Platform and followed SMB Listing requirements herein. A partner will be due this commission on all Qualified Bookings for any vessel the Partner has signed up as a new Host Vessel.
2. Post the initial 4 month Term, Partner will receive 5% of gross SMB Booking Profit on all Qualified Bookings for Qualified Active vessels the Partner originally signed up on the SMB Platform as long as A) The Partner’s registered Host and Vessel remains continuously active on the SMB Platform and B) The Partner remains “ACTIVE” in each of the 6 month terms previously defined. Commissions for an SMB Partner under the SMB Partner Program are continuous at the 5% Commission structure and only cease to be paid after a Qualified Booking resulting from an SMB Qualified Action IF the SMB Partner becomes inactive in any 6 month terms at any time or the Partner agreement is terminated and Partner removed under and/or due to any infringement defined and stated in the covenant herein. Payment for Commissions is dependent upon Clients providing such funds to SMB, and therefore, you agree that SMB shall only be liable to you for Commissions to the extent that SMB has received such funds from the Clients. You hereby release SMB from any claim for Commissions if SMB has not received such funds from the Clients. SMB shall automatically generate an invoice on behalf of Partner for all Commissions payable under this Agreement and shall remit payment to Partner based upon that invoice. All tracking of Links and determinations of Qualified Actions and Commissions shall be made by SMB in its sole discretion. In the event that Partner disputes in good faith any portion of an invoice, Partner must submit that dispute to SMB in writing and in sufficient detail within thirty (30) days of the date on the invoice. If Partner does not dispute the invoice as set forth herein, then Partner agrees that it irrevocably waives any claims based upon that invoice. In the event that Partner is also tracking Qualified Actions and Partner claims a discrepancy, Partner must provide SMB with Partner's reports within three (3) days after 30th day of the calendar month, and if SMB's and Partner's reported statistics vary by more than 10% and SMB reasonably determines that Partner has used generally accepted industry methods to track Qualified Actions, then SMB and Partner agree to make a good faith effort to arrive at a reconciliation. If the parties are unable to arrive at a reconciliation, then SMB’s numbers shall govern. If Partner has an outstanding balance due to SMB under this Agreement or any other agreement between the Partner and SMB, whether or not related to the Partner Program, Partner agrees that SMB may offset any such amounts due to SMB from amounts payable to Partner under this Agreement.
Partner also agrees to:
The following additional program-specific terms shall apply to any promotional programs set forth below:
Email Campaigns. For all email campaigns, Partner shall filter its email list by removing any entries appearing on the SMB Suppression List and will only send emails to the remaining addresses on its email list. SMB will provide an opt-out method in all Links, however, if any opt-out requests come directly to Partner, Partner shall immediately forward them to SMB at [email protected] Partner's emails containing the Links may not include any content other than the Links, except as required by applicable law. Partner agrees that failure to adhere to the SMB Suppression List (once provided) and all suppression requests by SMB and remove all emails from the database before mailing may result in Commission withholdings, removal or suspension from all or part of the Partner Program, possible legal action and any other rights or remedies available to SMB pursuant to this Agreement or otherwise. Partner further agrees that it will not mail or market to any suppression files generated through the SMB network, and that doing so may result in Commission withholdings, removal or suspension from the Partner Program, possible legal action and any other rights or remedies available to SMB pursuant to this Agreement or otherwise. Advertising Campaigns. No Links can appear to be associated with or be positioned on chat rooms or bulletin boards unless otherwise agreed by SMB in writing. Any pop-ups/unders used for the Partner Program shall be clearly identified as Partner served in the title bar of the window and any client-side ad serving software used by Partner shall only have been installed on an end-user's computer if the function of the software is clearly disclosed to end-users prior to installation, the installation is pursuant to an affirmatively accepted and plain-english end user license agreement and the software be easily removed according to generally accepted methods. Partner Network Campaigns. For all Partner's that maintain their own Partner networks, Partner agrees to place the Links in its Partner network (the "Network") for access and use by those Partners in Partner's Network (each a "Third Party Partner"). Partner agrees that it will expressly forbid any Third Party Partner to modify the Links in any way. Partner agrees to maintain its Network according to the highest industry standards. Partner shall not permit any party to be a Third Party Partner whose web site or business model involves content containing Objectionable Content. All Third Party Partners must be in good standing with Partner. Partner must require and confirm that all Third Party Partners affirmatively accept, through verifiable means, this Agreement prior to obtaining access to the Links. Partner shall promptly terminate any Third Party Partner who takes, or could reasonably be expected to take, any action that violates the terms and conditions of this Agreement. In the event that either party suspects any wrongdoing by a Third Party Partner with respect to the Links, Partner shall promptly disclose to SMB the identity and contact information for such Third Party Partner. Partner shall promptly remove any Third Party Partner from the Partner Program and terminate their access to future Offers of SMB in the Network upon written notice from SMB. Unless SMB has been provided with all truthful and complete contact information for a Third Party Partner and such Third Party Partner has affirmatively accepted this Agreement as recorded by SMB, Partner shall remain liable for all acts or omissions of any Third Party Partner.
Except as otherwise provided in this Agreement or with the consent of SMB, you agree that all information, including, without limitation, the terms of this Agreement, business and financial information, customer and vendor lists, and pricing and sales information, concerning us or any of our partners provided by or on behalf of any of them shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by you for any purpose other than your participation in the SMB Partner Program, except and solely to the extent that any such information is generally known or available to the public through a source other than you. Partner shall not use any information obtained from the SMB Partner Program to develop, enhance or operate a service that competes with the Partner Program, or assist another party to do the same.
IV. Limited License & Intellectual Property
We grant you a nonexclusive, nontransferable, revocable right to use the Links and to access our web site through the Links solely in accordance with the terms of this Agreement, for the sole purpose of identifying your Media as a participant in the SMB Partner Program and assisting in increasing sales through the Program Web Site. You may not alter, modify, manipulate or create derivative works of the Links or any SMB graphics, creative, copy or other materials owned by, or licensed to, SMB in any way. You are only entitled to use the Links to the extent that you are a member in good standing of the Partner Program. We may revoke your license anytime by giving you written notice. Except as expressly stated herein, nothing in this Agreement is intended to grant you any rights to any of SMB trademarks, service marks, copyrights, patents or trade secrets. You agree that SMB may use any suggestion, comment or recommendation you choose to provide to SMB without compensation. All rights not expressly granted in this Agreement are reserved by SMB.
This Agreement shall commence on the date of our approval of your SMB Partner Program application and shall continue thereafter until terminated as provided herein. You may terminate your participation in the SMB Partner Program at any time by removing all Links from your Media, deleting all copies of the Links. We may terminate your participation in one or more Offers or this Agreement at any time and for any reason which we deem appropriate with or without prior notice to you by disabling the Links or providing you with a written notice. Upon termination of your participation in one or more Offers or this Agreement for any reason, you will immediately cease all use of and delete all Links, plus all SMB or Client intellectual property, and will cease representing yourself as a SMB or Client partner for such one or more Offers. All rights to validly accrued payments, causes of action and any provisions, which by their terms are intended to survive termination, shall survive any termination.
In addition to any other rights and remedies available to us under this Agreement, SMB reserves the right to delete any actions submitted through your Links and withhold and freeze any unpaid Commissions or charge back paid Commissions to your account if: (i) SMB determines that you have violated this Agreement,(ii) SMB receives any complaints about your participation in the Partner Program which SMB reasonably believes to violate this Agreement or (iii) any Qualified Action is later determined to have not met the requirements set forth in this Agreement or on the Partner Program. Such withholding or freezing of Commissions, or charge backs for paid Commissions, shall be without regard as to whether or not such Commissions were earned as a result of such breach. In the event of a material breach of this Agreement, SMB reserves the right to disclose your identity and contact information to appropriate law enforcement or regulatory authorities or any third party that has been directly damaged by your actions.
VII. Anti-Spam Policy
You must strictly comply with the federal CAN-SPAM Act of 2003 (the "Act"). All emails sent in connection with the SMB Partner Program must include the appropriate party's opt-out link. From time to time, we may request - prior to your sending emails containing linking or referencing the SMB Partner Program that you submit the final version of your email to SMB for approval by sending it to your SMB Team representative and upon receiving written approval from SMB of your email the email may be transmitted to third parties. It is solely your obligation to ensure that the email complies with the Act. You agree not to rely upon SMB’s approval of your email for compliance with the Act, or assert any claim that you are in compliance with the Act based upon SMB’s approval.
You are expressly prohibited from using any persons, means, devices or arrangements to commit fraud, violate any applicable law, interfere with other partners or falsify information in connection with referrals through the Links or the generation of Commissions or exceed your permitted access to the SMB Partner Program. Such acts include, but are in no way limited to, using automated means to increase the number of clicks through the Links or completion of any required information, using spyware, using stealware, cookie-stuffing and other deceptive acts or click-fraud. SMB shall make all determinations about fraudulent activity in its sole discretion.
IX. Representations and Warranties
You hereby represent and warrant that this Agreement constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms and that you have the authority to enter into this Agreement. Subject to the other terms and conditions of this Agreement, SMB represents and warrants that it shall not knowingly violate any law, rule or regulation which is applicable to SMB’s own business operations or SMB’s proprietary products or services.
In addition to any notice permitted to be given under this Agreement, we may modify any of the terms and conditions of this Agreement at any time by providing you with a notification by email. The changes will become effective ten (10) business days after such notice. If the modifications are unacceptable to you, you may terminate this Agreement without penalty solely on the account of such termination within such ten (10) business day period. Your continued participation in this Partner Program ten (10) business days after a change notice has been posted will constitute your acceptance of such change. In addition, SMB may change, suspend or discontinue any aspect of an Offer or Link or remove, alter, or modify any tags, text, graphic or banner ad in connection with a Link. Partner agrees to promptly implement any request from SMB to remove, alter or modify any Link, graphic or banner ad that is being used by Partner as part of the SMB Partner Program.
XI. Independent Investigation
You acknowledge that you have read this Agreement and agree to all its terms and conditions. You have independently evaluated the desirability of participating in the SMB Partner Program and each Offer and are not relying on any representation, guarantee or statement other than as set forth in this Agreement or on the Partner Program.
XII. Mutual Indemnification
Partner hereby agrees to indemnify, defend and hold harmless SMB and Clients and their respective subsidiaries, partners, partners and licensors, directors, officers, employees, owners and agents against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' fees and costs) based on (i) any failure or breach of this Agreement, including any representation, warranty, covenant, restriction or obligation made by Partner herein, (ii) any misuse by Partner, or by a party under the reasonable control of Partner or obtaining access through Partner, of the Links, Offers or SMB or Client intellectual property, or (iii) any claim related to your Media, including but not limited to, the content contained on such Media (except for the Links).
SMB hereby agrees to indemnify, defend and hold harmless Partner and its subsidiaries, partners, partners, and their respective directors, officers, employees, owners and agents against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' fees and costs) based on a claim that SMB is not authorized to provide you with the Links.
THE PARTNER PROGRAM AND LINKS, AND THE PRODUCTS AND SERVICES PROVIDED IN CONNECTION THEREWITH, ARE PROVIDED TO PARTNER "AS IS". EXCEPT AS EXPRESSLY SET FORTH HEREIN, SMB EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. SMB DOES NOT WARRANT THAT THE PARTNER PROGRAM OR LINKS WILL MEET PARTNER'S SPECIFIC REQUIREMENTS OR THAT THE OPERATION OF THE PARTNER PROGRAM OR LINKS WILL BE COMPLETELY ERROR- FREE OR UNINTERRUPTED. SMB EXPRESSLY DISCLAIMS ANY LIABILITY FOR ANY ACT OR OMISSION OF A CLIENT OR THEIR PRODUCTS OR SERVICES. SMB DOES NOT GUARANTEE THAT PARTNER WILL EARN ANY SPECIFIC AMOUNT OF COMMISSIONS.
XV. Limitation of Liability
IN NO EVENT SHALL SMB BE LIABLE FOR ANY UNAVAILABILITY OR INOPERABILITY OF THE LINKS, BOOKINGS, PROGRAM WEB SITES, TECHNICAL MALFUNCTION, COMPUTER ERROR, CORRUPTION OR LOSS OF INFORMATION, OR OTHER INJURY, DAMAGE OR DISRUPTION OF ANY KIND BEYOND THE REASONABLE CONTROL OF SMB. IN NO EVENT WILL SMB BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PERSONAL INJURY / WRONGFUL DEATH, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS OR LOSS OF BUSINESS OPPORTUNITY, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT SMB HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. SMB’S CUMULATIVE LIABILITY TO PARTNER, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE AMOUNTS PAID TO PARTNER BY SMB IN COMMISSIONS DURING THE SIX (6) MONTHS IMMEDIATELY PRIOR TO SUCH CLAIM.
XVI.Governing Law & Miscellaneous
Partner shall be responsible for the payment of all attorneys fees and expenses incurred by SMB to enforce the terms of this Agreement. This Agreement contains the entire agreement between SMB and Partner with respect to the subject matter hereof, and supersedes all prior and/or contemporaneous agreements or understandings, written or oral. Partner agrees that SMB shall not be subject to or bound by any Partner insertion order or online terms and conditions that amend, conflict with or supplement this Agreement, regardless of whether SMB "clicks through" or otherwise indicates its acceptance thereof. Partner may not assign all or any part of this Agreement without SMB’s prior written consent. SMB may assign this Agreement at any time with notice to Partner. This Agreement will be binding on and will inure to the benefit of the legal representatives, successors and valid assigns of the parties hereto. The provisions of Section 3, 4(b), 6, 7, 8, 12-15 and any accrued payment obligations shall survive the termination of this Agreement. Except as set forth in the "Modifications" section above, this Agreement may not be modified without the prior written consent of both parties. If any provision of this Agreement is held to be void, invalid or inoperative, the remaining provisions of this Agreement shall continue in effect and the invalid portion of any provision shall be deemed modified to the least degree necessary to remedy such invalidity while retaining the original intent of the parties. Each party to this Agreement is an independent contractor in relation to the other party with respect to all matters arising under this Agreement. Nothing herein shall be deemed to establish a partnership, joint venture, association or employment relationship between the parties. No course of dealing nor any delay in exercising any rights hereunder shall operate as a waiver of any such rights. No waiver of any default or breach shall be deemed a continuing waiver or a waiver of any other breach or default.
By submitting and application to SMB Partner Program, you affirm and acknowledge thatyou have read this Agreement in its entirety and agree to be bound by all of its terms and conditions. If you do not wish to be bound by this Agreement, you should not submit an application to Partner Program. If an individual is accessing this Agreement on behalf of a business entity, by doing so, such individual represents that they have the legal capacity and authority to bind such business entity to this Agreement. This Agreement was last revised on 08-29-2019.