Guidelines for Approval 
 
We encourage all interested websites to apply to our program. Before you can participate in our program, we will need to approve your website. We reserve the right to reject your application in our sole discretion if we determine your website is unsuitable. Reasons for rejection include, but are not limited to: the website is unavailable or under construction; the website is aesthetically unpleasing; the website contains hate/violent/sexually explicit/offensive content; the website promotes excessive drinking/drug use; the website promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age; the website is libelous, disparaging, or defamatory; the website promotes violence or illegal activities; the website uses "Cingular Wireless", variations or misspellings; or the website incorporates materials that infringe upon copyright, trademark or other intellectual property rights.  We will try to respond to approval requests in a timely manner. 
  
IMPORTANT: PLEASE READ THE FOLLOWING AGREEMENT CAREFULLY. YOUR PARTICIPATION IN THE CINGULAR WIRELESS AFFILIATE PROGRAM IS CONDITIONED UPON YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT.  BY SELECTING THE "ACCEPT" BUTTON AT THE BOTTOM OF THE ONLINE APPLICATION, YOU ARE ENTERING INTO AN AGREEMENT WITH CINGULAR AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. 


CINGULAR WIRELESS AFFILIATE PROGRAM AGREEMENT

This Affiliate Program Agreement ("Agreement") is made between Cingular Wireless 
("Cingular") and [insert name of Affiliate] ("Affiliate"), each of which are enrolled in The LinkShare Network™ (the “Network”).  This Agreement sets forth the general terms and conditions governing advertising and commission arrangements between Affiliate and Cingular, which result from the participation in the Network.  


1.  Definitions.  In addition to terms defined throughout this Agreement, defined terms in this Agreement include the following:

“Affiliate Site" means an internet site maintained and/or owned by Affiliate that has been accepted for participation in the Cingular affiliate program governed by this Agreement. 

“Cingular Site” means Cingular’s internet site(s) where Cingular’s products and services are sold, to which Affiliate will link in connection with an Engagement (defined below). 

“Customer” means a visitor to the Cingular Site for the purpose of making a purchase of Cingular’s services.

"Qualifying Link" is a link from the Affiliate Site to the Cingular Site using one of the Required URLs (defined below) or any other URL provided by Cingular in an Engagement if it is the last link to the Cingular Site that the Customer uses during a Session where a sale of Cingular’s service to Customer occurs.  

A "Session" is the period of time beginning from a Customer's initial contact with the Cingular Site via a link from the Affiliate Site and terminating when the Customer either returns to the Cingular Site via a link from a site other than Affiliate's site or the Engagement expires or is terminated. 

“Shipped Order” means an order for at least one line of wireless service and device from a Customer resulting from a Qualifying Link that has been received, approved and activated by Cingular and shipped to Customer from Cingular’s distribution channels.  


2.  Program Enrollment; Effective Date.  Affiliate must submit a completed online application for the Cingular affiliate program in order to be considered for participation.  This Agreement will not be effective until: 1) this Agreement is accepted by Affiliate by clicking “ACCEPT” below; and 2) Cingular approves Affiliate’s online application for participation in the Cingular affiliate program (the “Effective Date”).   Cingular will inform Affiliate within a timely manner whether or not the application has been accepted.  Cingular reserves the right to accept or reject an Affiliate’s application in its sole discretion.

3. Offers and Engagements.

3.1. From time-to-time Cingular may post offers on the Network to pay participants a specified commission for Shipped Orders that resulted from a Qualifying Link.  If such offers receive an identification number from the Network, they shall be deemed to be an "Offer" for purposes of this Agreement.  

3.2. If an Offer made by one party is accepted by the other party in accordance with the Offer's terms via the Network, an "Engagement" will have been formed.  Each Engagement shall have the same identification number as the original Offer that lead to the Engagement and shall be governed by the terms and conditions of this Agreement.   Each Qualifying Link will include a special tagged link code or other transaction tracking code made available or otherwise dictated by LinkShare, which, among other things, will associate the Qualifying Link to the Engagement.  

3.3. Cingular will provide all banner ads, graphics and other content (“Content”) to be used for an Engagement.  Affiliate may only use the Content provided by Cingular for purposes of creating a Qualifying Link.  Content shall not be modified without Cingular’s prior written consent.  Cingular will provide Affiliate with information needed to enable Affiliate to link to the Cingular Site and Affiliate agrees to cooperate fully with Cingular to maintain such links. 

3.4.  At any time prior to Affiliate providing a Qualifying Link, Cingular may with or without notice: (a) change, suspend or discontinue any aspect of an Offer or an Engagement; or (b) remove, alter, or modify any graphic, banner ad or other content submitted by Cingular for an Offer or an Engagement.  Affiliate agrees to promptly implement any request from Cingular to remove, alter or modify any graphic, banner ad or other content submitted by Cingular that is being used by Affiliate as part of an Engagement.  

4. Affiliate's Responsibilities.

4.1. Affiliate will link the Affiliate Site to areas within the Cingular Site using special
URLs specified in the Engagement (the "Required URLs").  Affiliate may post as many
links to the Required URLs and the rest of the Cingular Site as it likes on the Affiliate Site.  The position, prominence and nature of links on the Affiliate Site shall comply with any requirements specified in the Engagement, but otherwise will be in the discretion of Affiliate.  The expectation, however, is that the links will be prominent.

4.2. Affiliate agrees not to make any representations, warranties or other statements concerning Cingular, the Cingular Site, any of Cingular's products or services, or Cingular Site policies, except as expressly authorized by the Engagement.

4.3. Affiliate is responsible for notifying Cingular and The Network of any malfunctioning of the Required URLs or other problems with Affiliate's participation in the Engagement.  

4.4. Affiliate may not bypass, modify, circumvent, impair, disable or otherwise interfere with the Qualifying Links.  Affiliate agrees that no link on the Affiliate Site shall in any way modify the look, feel and/or functionality of the Cingular Site.  Cingular is not responsible for ensuring that the Affiliate Site contains proper linking to the Cingular Site to ensure that accurate tracking, reporting and commission payments can occur. Affiliate is solely responsible for making certain that the links between the websites are formatted properly.

4.5. Cingular reserves the right to monitor the Affiliate Site at any and at all times to confirm compliance with this Agreement and any Engagement.  Affiliate is fully responsible for all content, links and activities conducted on the Affiliate Site.  

4.6. Affiliate agrees to maintain an easy to understand privacy policy, linked conspicuously, at a minimum, on the Affiliate Site’s home page, marked with the words “Privacy”, “Legal” “Terms” or similar language.  

4.7.  Affiliate agrees that it will not place or use any Content of Cingular except with the intention of delivering valid Shipped Orders.  The use of forced or automated clicks and/or cookies to inflate the number of Qualifying Links or other specified compensable actions by any method is strictly prohibited.  Such prohibited methods include, but are not limited to, using hidden frames, java pop-ups, Web bot, robot, automatic redirecting of users, autospawning of browsers, or any other technique or means of generating automated click-throughs, requiring visitors to click on a Qualifying Link before entering any area of the Affiliate Site, or placing or including promotions or links on pages of the Affiliate Site that automatically reload or go to another page without interaction from the user (for example, client pull or server push technology, METATAG reload, or refresh command on page html) on any page that is not generally accessible to all internet users.  Affiliates violating this paragraph will be terminated without notice and will forfeit all outstanding and future commissions owed under any Engagement.  

4.8.Affiliate may not bid on any key word/search terms for which Cingular owns a trademark, service mark, or other intellectual property ownership.  Cingular will provide Affiliate with a list of such key words or search terms.  Cingular may change or amend this list every 30 days.  

4.9.Affiliate may not utilize the services of any contextual network (AKA behavioral networks.) Contextual (or behavioral) networks are defined as any party serving pop-up ads, banner ads, page views or other forms of media based on user behavior, including search queries or visits to specific URLs, as a result of software downloaded by the user. Contextual networks forbidden include but are not limited to Claria, WhenU, HotBar, Exact Advertising, 180 Solutions, MarketMaker, Best Offers, Zone Media, Tremor Network and Contextweb.


5. Commissions.

5.1. Cingular agrees to pay Affiliate the commission specified in the Engagement if
Cingular sells a service that is the subject of the Engagement to a Customer and that Customer accessed the Cingular Site and purchased the service via a Qualifying Link.  Cingular will only pay the specified commission to Affiliate for Shipped Orders.  Notwithstanding anything herein to the contrary, GoPhone service orders are not shipped already activated and Cingular will only pay a commission  in connection with the sale of GoPhone service if a Customer activates at least (1) new line of service with a GoPhone rate plan within 30 days of receipt of the phone.


5.2. Notwithstanding anything herein to the contrary, Affiliate will not be eligible for a commission under the following circumstances: a) Customer comes to the Cingular Site through the Affiliate Site and returns more than 30 days later by entering a Cingular URL directly; b) Customer has prevented cookies from being saved on Customer’s computer; c) Customer cannot be tracked by Cingular’s online ordering system for any reason. 


5.3.Cingular will pay commissions earned in accordance with this Agreement on a monthly basis.  Commission payments for Shipped Orders that have been returned within 30 days from purchase will be deducted from commission payments earned in the month that the Shipped Order(s) are returned. Commission payments will be made approximately 45 days after the end of each month. 

5.4.  Cingular shall have the sole right and responsibility for taking and processing all orders placed by Customers.  Cingular shall also have the right, in its sole discretion, to reject any request for service or products from Customers.  Affiliate acknowledges that all agreements relating to sales to Customers shall be between Cingular and the Customer.  Prices for the services and products will be set solely by Cingular in its discretion.

5.5. All determinations of whether a commission is payable will be made solely by Cingular based on Cingular’s records and information and will be binding on Affiliate.

6.  Use of Marks; Ownership.

6.1. Cingular grants Affiliate a revocable, non-exclusive, license to use, reproduce and transmit the names, logos, trademarks, service marks, trade names or similar markings which Cingular owns or is licensed to use (collectively, “Cingular Marks”)  on the Affiliate Site solely for the purpose of creating links from the Affiliate Site to the Cingular Site during Engagements.  Notwithstanding anything herein to the contrary, Affiliate may use the Cingular Marks only as specifically provided, authorized and directed in the Cingular provided Content contained within each Engagement.  Affiliate may not copy, distribute, modify, reverse engineer, or create derivative works from the same.  Affiliate may not sublicense, assign or transfer any such licenses for the use of the same, and any attempt at such sublicense, assignment or transfer is void.  

6.2.  Affiliate acknowledges that all of the Cingular Marks are the exclusive property of Cingular.  Affiliate acknowledges that this Agreement does not transfer any rights to use any Cingular Marks except to the limited extent expressly set forth in this Agreement, and that this Agreement does not and will not confer any goodwill or other interest in any Cingular Mark upon Affiliate.  Affiliate will not challenge Company's ownership of the Cingular Marks in any way.

6.3.  Any unauthorized use of the Cingular Marks by Affiliate or its respective employees, affiliates or agents, constitutes infringement of Cingular’s and a material breach of this Agreement.  Upon expiration or termination of this Agreement for any reason, Affiliate must immediately discontinue use of the Cingular Marks.

6.4.  Affiliate must not in any way disparage Cingular’s service or devices and all use of the Cingular Marks by Affiliate must not injure or diminish the goodwill associated with the Cingular Marks.  Affiliate must conform to the highest ethical standards for advertising and take all reasonable steps to make sure that its advertising complies with all applicable laws.

7.  E-Mail Solicitation.  Affiliate may under certain limited circumstances send emails using Content provided by Cingular if the following conditions are met: 

a.The “From” line of each email must contain Affiliate’s name.  Cingular’s name must not be included or referenced in any way in the “From” line.  The email must be designed so as to be clear that it is being sent from Affiliate and not Cingular.  Among other things, the Cingular Content must be only one element of the email and the primary purpose of the email may not be the marketing of Cingular’s services.  Only Content provided by Cingular may be used in the emails.

b.Affiliate will create a process by which email recipients may opt-out of receiving future email from Affiliate.  Affiliate must have the necessary processes in place to immediately remove such email address from its email list.  Among other things, Affiliate must maintain a “do not email list” and every opt-out request must be placed on this list.  

c.If Affiliate intends to generate email through a third party supplier, Affiliate must disclose the identity of that supplier to Cingular.  Affiliate is responsible for all emails generated on Affiliate’s behalf by a third party and such emails must comply with all requirements set forth in this Agreement.

d.Affiliate must submit for Cingular approval a marketing plan describing how many times and how often an email will be generated to any one email address.  Affiliate is not permitted to send an email to any one email address more than once in any 30-day period.  The entire content of each email that will be generated under an email campaign must be submitted to Cingular in advance for review and written approval.  

e.Affiliate must comply in all respects with the CAN-SPAM Act of 2003.  Among other things, Affiliate must have all lists scrubbed against its “do not email” list before any email campaign begins and at least every 10 days during each campaign.

f.Cingular may request that Affiliate immediately stop any email campaign containing Cingular’s Content or Cingular Marks, for any reason, in its sole discretion.   

g.At Cingular’s request, Affiliate must provide the statistics regarding each email campaign including, the number of emails sent and the number of recipients who clicked through.

8. Term and Termination.

8.1. The term of this Agreement will commence as of the Effective Date and continue until the termination of the Master Services Agreement between Cingular and LinkShare Corporation, unless terminated earlier in accordance with this Agreement.

8.2. Either party may terminate any Engagement at any time by deleting their acceptance of the Engagement through The Network.   Termination of an Engagement shall not terminate this Agreement or any other Engagement.

8.3. Either party may terminate this Agreement at any time, for any reason, provided that they provide at least five day's prior written notice of such termination to the other party.  Notwithstanding anything herein to the contrary, Cingular may terminate this Agreement at any time, with no prior written notice, in the event that Affiliate is in breach of this Agreement.  Termination of this Agreement shall also terminate any outstanding Engagements.  However, all rights to payment accrued prior to termination, causes of action and any provisions which by their terms are intended to survive termination, shall survive termination of this Agreement.


9. Representations.

9.1. Each party represents to the other that (a) it has the authority to enter into this Agreement and sufficient rights to grant any licenses granted hereby, and (b) any material which is provided to the other party and displayed on the other party's site will not (i) infringe on any third party's copyright, patent, trademark, trade secret or other proprietary rights or right of publicity or privacy; (ii) violate any applicable law, statute, ordinance or regulation; (iii) be defamatory or libelous; (iv) be lewd, pornographic or obscene; (v) violate any laws regarding unfair competition, antidiscrimination or false advertising; (vi) promote violence or contain hate speech; or (vii) contain viruses, trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines.

9.2.  EXCEPT FOR THE ABOVE REPRESENTATIONS NEITHER PARTY MAKES ANY
REPRESENTATIONS OR WARRANTIES TO THE OTHER PARTY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

10. Indemnification.

10.1. Affiliate shall indemnify, defend and hold Cingular harmless from and against all damages, claims, losses or expenses (including court costs, reasonable outside attorneys’ fees and expenses of Cingular) incurred by Cingular which may in any way arise out of or result from any claim, suit or proceeding brought against Cingular by a third party arising out of or resulting from a breach, or alleged breach, of any of Affiliate’s representations or obligations herein or arising out of the development, operation, maintenance, activities, contents and links of or on Affiliate’s Site.  Affiliate agrees to maintain insurance coverage to protect both parties under the terms of this Section and to provide evidence of same to Cingular, at Cingular's request. 

10.2. Cingular shall promptly notify Affiliate in writing of any claim which Cingular becomes aware of and for which Cingular believes Affiliate is responsible under this Section 10.  Affiliate shall, if it so elects, have sole control of the defense of any claim for which Affiliate is responsible under this Section 10.  Affiliate shall have sole authority to settle, at Affiliate’s sole expense, any claim, suit or other action for which Affiliate is responsible under this Section 10, provided that such settlement shall not limit, unduly interfere with or otherwise adversely affect the rights granted herein or Affiliate’s obligations under this Agreement or impose any additional liability on Cingular.  Cingular reserves the right to employ counsel at its own expense and participate in the defense and/or settlement of any claim for which Affiliate is responsible under this Section 10.

11. Limitation of Liability.

11.1. Cingular will have no liability of any sort arising from any interruptions or errors in Cingular’s Site. CINGULAR WILL HAVE NO LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR ANY LOST REVENUES, DATA OR PROFITS ARISING UNDER OR WITH RESPECT TO THIS AGREEMENT OR THE AFFILIATE PROGRAM, EVEN IF WE WERE ADVISED OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. Further, Cingular’s aggregate liability arising under or with respect to this Agreement or the affiliate program shall in no event exceed the total amount of commissions paid or payable to Affiliate under this Agreement. 

CINGULAR HEREBY DISCLAIMS, AND AFFILIATE HEREBY RELEASES CINGULAR, FROM ANY AND ALL LIABILITY FOR DOWNTIME OR OTHER INTERRUPTIONS IN SERVICE REGARDING THE LINKS AND/OR CINGULAR’S SITE.  WITHOUT LIMITING THE FOREGOING, THE LINKS, ALL CONTENT AND THE LICENSED TRADEMARKS ARE PROVIDED TO AFFILIATE "AS IS" WITHOUT ANY WARRANTY OR ANY KIND. CINGULAR MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND WITH REGARD TO THE AFFILIATE PROGRAM OR ANY CONTENT, SERVICES OR PRODUCTS, EXPRESS OR IMPLIED, STATUTORY, ARISING BY LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. CINGULAR DOES NOT WARRANT THAT CINGULAR’S SITE, SERVICES OR PRODUCTS WILL BE ERROR FREE, FUNCTION WITHOUT INTERRUPTION OR THAT ANY ERRORS WILL BE CORRECTED. IF AS A MATTER OF LAW CINGULAR MAY NOT DISCLAIM ANY WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY SHALL BE THE MINIMUM PERMISSIBLE UNDER APPLICABLE LAW. 

12. General.

12.1. Each party shall act as an independent contractor and shall have no authority to obligate or bind the other in any respect.

12.2. All personal information regarding the Customer is the sole and exclusive property of Cingular and shall not be provided to Affiliate.  

12.3. Cingular may modify any of the terms and conditions contained in this Agreement at any time, in its sole discretion, upon notice to Affiliate. Notice of any change to this Agreement delivered by e-mail, to Affiliate’s address on record with Cingular shall be considered sufficient notice.  Affiliate’s sole recourse if the finds the modification unacceptable is the termination of this Agreement. Affiliate’s continued participation in the affiliate program following notice of the change will constitute binding acceptance of such change. 

12.4. This Agreement has been made in and shall be construed and enforced in accordance with the laws of the state of Georgia.  Any action to enforce this Agreement shall be brought in the federal or state courts located in that state.  

12.5.  Except as otherwise provided in this Agreement, notices required or permitted to be given hereunder shall be in writing and shall be delivered: (a) personally; (b) by certified mail, return receipt requested; (c) by an overnight courier service having a record of receipt; or (d) by facsimile, with a confirming copy sent by one of the other three methods described in this sentence.   Notices to Cingular shall be addressed to: Dawn Intili, 5565 Glenridge Connector, Suite 1535.A, Atlanta, GA 30620, with a copy to SCM Legal Counsel at the same address.  Communication to Cingular, other than official notices under this Agreement, may be provided via email to Dawn Intili @ dawn.intili@cingular.com.  Notices to Affiliate shall be addressed to the address on record with Cingular.
Either party hereto may change its address by a notice given to the other party hereto in the manner set forth above.  All notices given under this Agreement shall be considered to have been received five (5) days after the mailing thereof or on the date of receipt thereof, whichever occurs first.  

12.6. AFFILIATE UNDERSTANDS THAT CINGULAR MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) SOLICIT CUSTOMER REFERRALS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT OR OPERATE WEB SITES THAT ARE SIMILAR TO OR COMPETITIVE WITH AFFILIATE’S SITE. AFFILIATE HAS INDEPENDENTLY EVALUATED THE DESIRABILITY OF ENTERING INTO THIS AGREEMENT AND IS NOT RELYING ON ANY REPRESENTATION, GUARANTEE OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT. 

12.7. Affiliate and Cingular agree to settle any dispute arising out of or related to this Agreement through consultation and negotiation in good faith and in the spirit of mutual cooperation.  If the parties are unable to settle such disputes, they must be resolved by submission to binding arbitration to be decided under the then current JAMS commercial arbitration rules.  

12.8. Affiliate may not assign this Agreement, by operation or law or otherwise, without Cingular’s prior written consent and any such purported assignment shall be null and void. Subject to such restriction, this Agreement will be binding upon, inure to the benefit of and be enforceable against the parties and their respective successors and assigns. 

12.9. Affiliate will comply with all applicable laws, rules and regulations in the performance of its rights or responsibilities under this Agreement.  If any provision herein is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. 

12.10. Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement. This Agreement constitutes the entire agreement between the parties regarding its subject matter and supersedes any other agreements or understandings between them.


BY SELECTING THE “ACCEPT” BUTTON BELOW, AFFILIATE IS ACKNOWLEDGING THAT IT HAS CAREFULLY REVIEWED THE FOREGOING AGREEMENT AND AGREES TO ALL OF THE TERMS AND CONDITIONS CONTAINED THEREIN.  AFFILIATE ACKNOWLEDGES THAT THIS AGREEMENT WILL ONLY BE EFFECTIVE UPON CINGULAR’S ACCEPTANCE OF AFFILIATE’S ONLINE APPLICATION FOR PARTICIPATION IN THE CINGULAR AFFILIATE PROGRAM.