SmartXel Media Network

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DISTRIBUTION AGREEMENT AND TERM OF SERVICE
 
This Distribution Agreement (the "Agreement") is made for participation in a digital distribution network ("Network") from SmartXel LLC. ("SmartXel" and, together with SmartXel’s affiliates, “SmartXel Media Network”, "we" or "us"). This Agreement is a binding agreement between SmartXel and the individual or entity ("you" or "Blogger" or “Content Provider”) and contains the complete terms and conditions that apply to your participation in the Network. As used in this Agreement, SmartXel "affiliates" means any entity that directly or indirectly controls, is controlled by, or is under common control with. By submitting this form, you, hereby represent and warrant that:

•	If you are participating in the Network, you are at least 18 years of age and have FULL legal capacity to enter into this Agreement. 
•	ALL the information provided for is accurate, and states, without limitation, the real name, address and e-mail address of Content Proviider.

1.      Blogger Publications.  In this section we define what content is covered under the agreement. Or which you hereafter provide us permission (including via email) to include in the SmartXel Media Network. If the content provider ceases production and distribution of a Publication during the Term (i.e., the Publication is no longer available on your website or otherwise available online or through any digital distribution service), you may remove the Publication from the SmartXel Media Network by providing us Sixty (60) days advance written notice.

2.       Program Description.  The SmartXel Media Network sells subscriptions, content for digital delivery of each Publication to customers, syndication services, redistribution and online retailers.  Subscribers may be permitted to save, search, copy, paste, print and/or annotate any Publication or Article (as defined below).  We will be entitled to set all parameters for Subscriber use.

3.       Delivery Format.  “You” agree to deliver all content to SmartXel LLC in accordance with the electronic formatting and delivery requirements, as may be updated from time to time. All deliveries shall also be free and clear of viruses, worms and other potentially harmful or disrupting code. If you do not do so, you hereby authorize us to select, and license us to use, logos from the Publication as you deliver them to us or as you may otherwise publish the logos online.
 
4.       Delivery Timing.  “You” agree to give us ongoing updates during the Term by continuously delivering to us all new stories, articles, letters, columns and other discrete works of authorship for all Publications (each such discrete work of authorship an “Article”), as soon as reasonably possible following their completion and in any event at or prior to the time at which you make the Articles available through any other web site, XML feed, or otherwise available for electronic distribution or syndication.
 
5.       Subscription Pricing.  SmartXel LLC will have sole and complete discretion in controlling SmartXel Media Network and sale/resale, pricing terms, features, and pricing to Subscribers, and for all promotions and solicitations to be used in connection with the marketing and sale of Subscriptions. SmartXel LLC will be responsible for processing Subscription requests and payments, payment collection, subscription cancellations, refunds and related customer service and will have sole ownership and control of all data with respect to the same.  We may, but are not obligated to, make your Publications available at no charge as part of free trial subscription(s) or other promotional offer(s)  for up to thirty (30) days per Subscriber .

6.       Subscription Royalties.  For each calendar month during the Term, provided “You” are not in breach of your obligations under this Agreement, SmartXel LLC will pay you royalties equal to 70% (percent) of Subscription Sales Revenues actually received by us from sales of your Publications during the month, net of any bad debt, credits and returns.  “Sales Revenues” means only amounts actually received by us for the sale of Subscriptions to your Publications and excludes any fees paid for any product or service other than a Subscription, even if sold together with or required to make use of any Subscription.  We may sell a Subscription together with any other content subscription at one undistinguished price (the “Single Price).

7.       Payment Terms.  All payments will be due within one hundred and eighty (180) days following each calendar month of the Term or portion thereof in which Publisher Royalties have accrued.  We will provide quarterly statements during the applicable month. All payments shall be made in U.S. dollars and shall be paid by Electronic Funds Transfer (EFT) or via PayPal payment service.  All statements shall be conclusive, final and binding, unless You give SmartXel written notice stating the specific basis for objection within six (6) months after the date rendered.  You shall not maintain any action or proceeding against us with respect to any such statement unless you commence that action or suit within six (6) months following the date that you provide SmartXel with the written notice referred to in the immediately preceding sentence.   Any such action or proceeding shall be limited to a determination of the amount of monies, if any, payable by SmartXel to you for the accounting periods in question, and your sole remedy shall be the recovery of those monies with no interest thereon. 
  
8.       Taxes.  We are responsible for collecting and remitting all taxes imposed on sale of Publications to Subscribers.  You are responsible for any income or other taxes due and payable as a result of payments to you by us under this Agreement.  Accordingly, unless otherwise stated, the amounts due to you here under are inclusive of any taxes that may apply to such payments.  We maintain the right, however, to deduct or withhold any and all applicable taxes from such amounts, and the amounts due, as reduced by such deductions or withholdings, will constitute full payment and settlement to you.

9.       Rights Granted.  “You” hereby grant to SmartXel LLC, throughout the Term, a nonexclusive, irrevocable, worldwide right and license to distribute the Publications as described herein, such right to include, without limitation, the right to: (a) reproduce and store Licensed Digital Content (as defined below) on one or more computer facilities; (b) reformat (including by means of XML trans-coding), display, market, transmit, distribute, and otherwise digitally make available all or any portion of the Licensed Digital Content, through the SmartXel Properties (as defined below), for Subscribers to download, access, copy and paste, print, annotate and/or view on any Portable Device (as defined below); (c) display (i) your trademarks and logos in the form you provide them to us (with such modifications as are necessary to optimize their viewing on Portable Devices) and (ii) other limited portions of Licensed Digital Content, in each case on and through any SmartXel Properties and solely for the purposes of marketing, soliciting and selling Subscriptions; (d) use, reproduce, adapt, modify, and create derivative works of metadata for the purpose of improving categorization, recommendations, personalization features and other features of any SmartXel Properties; and (e) transmit, reproduce and otherwise use (or cause the reformatting, transmission, reproduction, and/or other use of) the Licensed Digital Content as mere technological incidents to and for the limited purpose of technically enabling the foregoing (e.g., caching to enable display).  In addition, you agree that we may permit our affiliates and independent contractors, and their affiliates’ independent contractors, to exercise the rights that you grant to us in this Agreement.  “Licensed Digital Content” means, for each Publication: each Article and information associated with such Article, and your trademarks and logos as they appear in such Licensed Digital Content or as you otherwise provide them to us. "SmartXel Properties" means the website with the primary home page identified by the URL http://www.smartxel.com, together with any successor or replacement thereto, and any other web sites and any web page widget or other web page real estate or online point of presence, on any platform, that is owned by us, or operated by or under license by us, or are co-branded SmartXel or with any brand we own, and any web site or online point of presence through which any SmartXel sites are syndicated, offered, merchandised, advertised or described. Publisher understands that we make no promise that we will include any of the Licensed Digital Content in the Program, and that nothing in this Agreement will restrict us from working with any other publisher or content provider, or promoting or selling subscriptions to any content not published or provided by Publisher.

10.   Term and Termination.  This Contract will be in effect until Smartxel LLC and/or “You” terminate the contract with 45 days notice to the other party. We shall be entitled to retain archival copies of the Digital Content after the Term and to utilize such content for customer service purposes and to complete customer transactions commencing during the Term. 
 
11.   Ownership and Control of SmartXel Properties. Subject to the authorizations granted to SmartXel LLC hereunder, as between SmartXel LLC and “You”. “You” retain all ownership rights in and to the copyrights and all other rights and interest in and to the Publications.  SmartXel LLC retains all ownership rights in and to the copyrights and all other rights and interests in and to the SmartXel Media Network and the SmartXel Properties.  SmartXel LLC is solely responsible for, and shall have full discretion with respect to the design and operation of the SmartXel Media Network and the SmartXel Properties and the marketing thereof; provided that our use of the Publications pursuant to the rights granted herein shall be subject to the terms of this Agreement.  SmartXel LLC shall have no obligation to sell, market or distribute the Publications, or any part thereof, or to continue the same, if and once commenced.

12.   Clearances.  With respect to all Publications, “You” shall obtain and pay for any and all necessary clearances and licenses for the Publications to permit our exercise of the rights granted hereunder without any further payment obligation by us, including, without limitation, all royalties and other income due to any copyright owner. 
 
13.   Representations, Warranties and Indemnities.  You represent and warrant that:  (i) it is an individual, a corporation or other entity or sole proprietorship domiciled in the United States and the information provided for You in this Agreement is accurate; (ii) it has the full right, power and authority to enter into and fully perform this Agreement and shall comply with the terms of this Agreement; (iii) prior to Blogger’s or its designee’s delivery of any content, it shall have obtained all rights that are necessary for SmartXel or its affiliates to exercise the rights granted hereunder; (iv) neither the exercise of the rights authorized hereunder nor any materials embodied in the content nor its sale or distribution as authorized herein will violate or infringe upon the intellectual property, proprietary or other rights of any person or entity, including, without limitation, contractual rights, copyrights, trademarks, common law rights, rights of publicity, or privacy, or moral rights, or contain defamatory material or violate any laws or regulations of any jurisdiction; (v) it will ensure that all digital files delivered to us hereunder comply with the technical delivery specifications provided by us; and (vi) it is and shall be solely responsible for accounting and paying any co-owners or co-administrators of any Licensed Digital Content any royalties with respect to the uses of the content and their respective shares, if any, of any monies payable hereunder.  Content Provider shall indemnify, defend and hold SmartXel, its officers, directors, employees, affiliates, subcontractors and assigns harmless from and against any loss, claim, liability, damage, action or cause of action (including reasonable attorneys’ fees) that arises from any breach of Content Provider’s  representations or warranties set forth herein.  We shall be entitled, at our expense, to participate in the defense and settlement of the claim or action with counsel of our own choosing.    SmartXel LLC represents and warrants that:  (i) it is a Limited Liability Corporation domiciled in the United States and the information provided for SmartXel in this Agreement is accurate; and (ii) it has the full right, power and authority to enter into and perform this Agreement.  SmartXel agrees to defend, indemnify and hold you, your officers, directors, employees, affiliates, subcontractors and assigns harmless from and against any loss, claim, liability, damage, action or cause of action (including reasonable attorneys’ fees) that arises from a third party claim to the extent such third party claim is caused by or based on (x) a breach of SmartXel’s foregoing representations or warranties or (y) any claim that the technology or intellectual property provided by us to deliver the Licensed Digital Content to Subscribers through the Program (excluding the Licensed Digital Content itself) infringes, misappropriates, or violates any intellectual property or proprietary right of any third party.

14.   Privacy Policy. All information provided by “You” or collected by SmartXel LLC during your access to this service is governed by our Privacy Policy which is hereby incorporated into these Terms by this reference.

15.   Limitation of Liability.  IN NO EVENT SHALL SmartXel LLC BE LIABLE FOR ANY LOSS OF DATA, LOSS OF PROFITS, COST OF COVER OR OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, EXEMPLARY OR RELIANCE DAMAGES ARISING FROM OR IN RELATION TO THIS AGREEMENT, OR FOR ANY EQUITABLE REMEDY OF DISGORGEMENT OR OTHERWISE, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY. IN NO EVENT SHALL OUR LIABILITY HEREUNDER EXCEED THE AMOUNT OF FEES DUE AND PAYABLE BY SMARTXEL UNDER THIS AGREEMENT FOR THE TWELVE-MONTH PERIOD PRECEDING SUCH CLAIM. WE SPECIFICALLY DISCLAIM, WITH RESPECT TO ALL SERVICES, SOFTWARE, LICENSED CONTENT OR PRODUCTS PROVIDED BY OR ON BEHALF OF US IN CONNECTION WITH THIS AGREEMENT, ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.  PUBLISHER ACKNOWLEDGES AND AGREES THAT SMARTXEL CANNOT ENSURE THAT LICENSED DIGITAL CONTENT DELIVERED BY OR ON BEHALF OF PUBLISHER WILL BE PROTECTED FROM THEFT OR MISUSE OR THAT SUBSCRIBERS WILL COMPLY WITH ANY CONTENT USAGE RULES SMARTXEL OR ITS AFFILIATES MAKE APPLICABLE IN CONNECTION WITH SUBSCRIBER USE OF THE LICENSED DIGITAL CONTENT AND SMARTXEL SHALL HAVE NO LIABILITY ARISING FROM A FAILURE OF SECURITY SYSTEM OR PROCEDURE OR OF ANY SUBSCRIBER TO COMPLY WITH ANY SUCH CONTENT USAGE RULES.

16.   Miscellaneous.

(A) General.  Content Provider agrees that the terms and conditions in this Agreement, as well as all non-public information it receives from us, constitute our “Confidential Information” (as that term is defined in the Mutual Nondisclosure Agreement at http://www.smartxel.com/nondisclosure_agreement.php and the parties agree that the NDA shall terminate no earlier than the end of the Term of this Agreement.  This Agreement constitutes the complete, final and exclusive agreement between the Parties with respect to the subject matter hereof, supersedes any and all prior or contemporaneous agreements of the parties with respect to the subject matter hereof and is not intended to confer upon any other person other than the parties any rights or remedies hereunder.  This Agreement may not be amended, except in writing signed by both parties. In the event that any provision of this Agreement is held invalid by a court with jurisdiction over the parties to this Agreement, such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and the remainder of this Agreement shall remain in full force and effect. The parties to this Agreement are independent contractors.  Neither party is an agent, employee representative, or partner of the other party.  Each party shall bear its own costs and expenses in performing this Agreement. We will send all notices and other communications to you at the e-mail address or the mailing address set forth above.  You must send all notices and other communication relating to this Agreement to SmartXel at the following e-mail address: info@smartxel.com, with a paper copy to SmartXel.com, Attention:  General Counsel, 113 Rock Creek Dr, Clifton, NJ 07014.  Neither party may assign any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of the other, except that (i) we may assign any of our rights and obligations under this Agreement without consent, and (ii) you  may assign all of your rights and obligations under this Agreement to any corporation or other entity domiciled in the United States without consent in connection with the sale of all or substantially all of the assets of a Publication; provided that you shall give SmartXel written notice of any such assignment no later than ten (10) business days following such assignment and if we object to such assignment, we may terminate this agreement upon five (5) business days prior written notice.  Subject to the foregoing limitation, this Agreement will be binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors and assigns.

(B) GOVERNING LAW, CONSENT TO JURISDICTION.  THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF NEW JERSEY, WITHOUT REFERENCE TO RULES GOVERNING CHOICE OF LAWS OR THE U.N. CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS.  CONTENT PROVIDER HEREBY IRREVOCABLY CONSENTS AND WAIVES ANY OBJECTION TO THE EXCLUSIVE JURISDICTION AND VENUE OF THE FEDERAL AND STATE COURTS LOCATED IN PASSAIC COUNTY, NEW JERSEY WITH RESPECT TO ANY CLAIMS, SUITS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

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