I indicate my approval of this Agreement and desire to become an Affiliate under these terms by filling out and submitting the Music Discovery Network Affiliate Program signup form.
Music Discovery Network Affiliate Program Agreement
This Affiliate Agreement (the "Agreement") is between Ron Wallace Enterprises, Inc. d/b/a Music Discovery Network ("MDN"), an Illinois corporation, and you (or the entity which you have legal authorization to represent), the joining Affiliate ("Affiliate"). This Agreement contains the complete terms and conditions of the "Music Discovery Network Affiliate Program" ("Program")
BY SELECTING ON THE "I AGREE WITH THE TERMS" ON THE SIGNUP APPLICATION, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT AND AGREE TO BE BOUND BY IT. AFFILIATE REPRESENTS TO MDN THAT AFFILIATE IS AT LEAST 18 YEARS OLD AND IS AUTHORIZED TO ENTER INTO THIS AGREEMENT, IS ENTERING INTO THIS AGREEMENT ON AFFILIATE'S OWN BEHALF, HAS INDEPENDENTLY EVALUATED THE DESIRABILITY OF ENTERING INTO THIS AGREEMENT, IS NOT RELYING ON ANY REPRESENTATION, GUARANTEE OR STATEMENT OTHER THAN AS EXPRESSLY SET FORTH IN THIS AGREEMENT AND THE AFFILIATE RELATIONSHIP WILL NOT BE USED IN CONNECTION WITH ANY ILLEGAL PURPOSE. AFFILIATE ACKNOWLEDGES THAT NOTHING IN THIS AGREEMENT SHOULD BE CONSTRUED AS GUARANTEEING THE PURCHASE OF ANY PRODUCT, OR THE GENERATION OF ANY COMMISSIONS FROM AFFILIATE'S OPERATION OF THE AFFILIATE PROGRAM OR THE DISPLAY OF BANNERS. AT ANY TIME UPON REQUEST BY MDN, AFFILIATE AGREES TO SIGN A NON-ELECTRONIC VERSION OF THIS AGREEMENT.
1. Joining the Program
To join the Program, you will submit a complete Affiliate Program application here on our site. We will evaluate your application in good faith and will notify you of your acceptance or rejection. We may reject your application if we determine (in our sole discretion) that your site is unsuitable for the Program. Unsuitable sites include those that: promote sexually explicit materials, promote violence, promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, promote any illegal activity, otherwise violate intellectual property rights.
If we reject your application, you are welcome to reapply to the Program at any time. You should also note that if we accept your application and your site is thereafter determined (in our sole discretion) to be unsuitable for the Program, we may terminate this Agreement.
2. Affiliate Links
Once you have been notified that your site has been accepted into the program, you may use graphic and text links both on your website and in emails. The site may also be advertised "offline" in classified ads, magazines, and newspapers.
You may only use the graphics, text, links and ads provided to you by us. We will provide you with guidelines and graphical artwork to use in linking to our page. To permit accurate tracking, reporting, and referral fee accrual, we will provide you with affiliate "tagged" link formats to be used in all links between your site and our site. You must ensure that each of the links between your site and our site properly utilizes such affiliate link formats. Links to our site placed on your site pursuant to this Agreement and which properly utilize such affiliate link formats are referred to as "Affiliate Links." You will earn referral fees only with respect to activity on our site occurring directly through Affiliate Links; we will not be liable to you with respect to any failure by you to use Affiliate Links, including to the extent that such failure may result in any reduction of amounts that would otherwise be paid to you pursuant to this Agreement.
3. Qualifying Products
A Qualifying Product "Product" is any product listed on our site that is fulfilled by us, This excludes any product or service offered through our site not fulfilled by us, such as any and all products sold by us through other affiliate or associate programs and any products sold by a third party through a site linked to from our site. This also excludes any service-type charges including, but not limited to, membership or advertising or sponsorship charges in the Creative Musicians Coalition, MDN or other associated organizations. Also excluded are: Gift Certificates, Deep Discounted (above 30% discount) or Closeout Items, Coupons. Dutch Auction items are included.
4. Order Processing
We will process Product orders placed by customers who follow Affiliate Links from your site to our site. We reserve the right to reject orders that do not comply with any requirements that we may establish periodically. We will be responsible for all aspects of order processing and fulfillment. Among other things, we will prepare order forms, process payments, cancellations, and returns, and handle customer service. We will track sales made to customers who purchase Products by using Affiliate Links from your site to our site and will make available to you reports summarizing this sales activity. The form, content, and frequency of the reports may vary from time to time in our discretion.
5. Referral Fees
We will pay you referral fees (as specified below) on qualifying Product sales to third parties. For a Product sale to be eligible to earn a referral fee, the customer must click-through an Affiliate Link from your site to our site, and add the Product to his or her shopping cart during a session. The session ends upon one of the following events: (a) 24 hours elapses from the customer's initial click-through, (b) the customer orders the Product, or (c) the customer follows a third party's Affiliate Link. We will only pay referral fees on such Products after order, payment and shipping have occurred.
We will not, however, pay referral fees on any Products that are added to a customer's Shopping Cart or are purchased via any other method other than through an Affiliate Link, even if the customer previously followed a link from your site to our site.
You may not purchase products during sessions initiated through the links on your site for your own use, for resale or commercial use of any kind. This includes orders for customers or on behalf of customers or orders for products to be used by you or your friends, relatives, or associates in any manner. Such purchases may result (in our sole discretion) in the withholding of referral fees or the termination of this Agreement. Products that are eligible to earn referral fees under the rules set forth above are referred to as "Qualifying Products."
In addition, although a unique circumstance, we will not pay referral fees that come from sales, even if through your Affiliate Link, for customers that have already been registered as MDN Customers by an Authorized MDN Sales Associate. It should be understood that MDN Sales Associates have the first right to register customers through personal contact and when doing so, they become their sole customers for a period as specified by the MDN Sales Associate Agreement.
In addition, you may not: (a) directly or indirectly offer any person or entity any consideration or incentive (including, without limitation, payment of money (including any rebate), or granting of any discount or other benefit) for using Affiliate Links on your site to access our site (e.g., by implementing any "rewards" program for persons or entities who use Affiliate Links on your site to access our site); (b) read, intercept, record, redirect, interpret, or fill in the contents of any electronic form or other materials submitted to us by any person or entity; (c) in any way modify, redirect, suppress, or substitute the operation of any button, link, or other interactive feature of our site; (d) make any orders or subscription requests, or engage in other transactions of any kind on our site on behalf of any third party, or authorize, assist, or encourage any other person or entity to do so; (e) take any action that could reasonably cause any customer confusion as to our relationship with you, or as to the site on which any functions or transactions (e.g., search, order, browse, and so on) are occurring; or (f) post or serve any advertisements or promotional content around or in conjunction with the display of our site (e.g., through any "framing" technique or technology or pop-up windows), or assist, authorize, or encourage any third party to take any such action. If we determine, in our sole discretion, that you have engaged in any of the foregoing activities, we may (without limiting any other rights or remedies available to us) withhold any referral fees otherwise payable to you under this Agreement and/or terminate this Agreement.
6. Referral Fees Schedule
You will earn referral fees based on Qualifying Revenues according to referral fee schedules to be established by us. "Qualifying Revenues" are revenues derived by us from our sales of Qualifying Products, excluding costs for shipping, handling, gift-wrapping, taxes, service charges, credit card processing fees, returns and bad debt. The current referral fee schedule is:
20% of Qualifying Revenues from the sale of each Product that, on the date of order, is listed in our catalog and that is added to the customer's Shopping Cart directly from following your Affiliate Link.
Referral Fee Payment
We will pay you referral fees on a quarterly basis. Approximately 30 days following the end of each calendar quarter, we will send you a check for the referral fees earned. However, if the referral fees payable to you for any calendar quarter are less than $25 ($100 for Affiliates from Foreign Countries), we will hold payment until the total amount due is at least $25 ($100 Foreign) or (if earlier) until this Agreement is terminated. In calculating referral fees, we will deduct the corresponding referral fee from your next quarterly payment if a Product that generated a referral fee is returned by the customer. If there is no subsequent payment, we will send you a bill for the referral fee.
8. Policies and Pricing
Customers who buy products through this Program will be deemed to be customers of MDN. Accordingly, all MDN rules, policies, and operating procedures concerning customer orders, customer service, and product sales will apply to those customers. We may change our policies and operating procedures at any time. Product prices and availability may vary from time to time. We will use commercially reasonable efforts to present accurate information, but we cannot guarantee the availability or price of any particular product.
9. Identifying Yourself as an MDN Affiliate
You may not issue any press release with respect to this Agreement or your participation in the Program; such action may result in your termination from the Program. We will make available to you a small graphic image that identifies your site as a Program participant. You must display this logo or the phrase "Music Discovery Network Affiliate" somewhere on your site. We may modify the text or graphic image of this notice from time to time. In addition, you may not in any manner misrepresent or embellish the relationship between us and you, or express or imply any relationship or affiliation between us and you or any other person or entity except as expressly permitted by this Agreement (including by expressing or implying that MDN supports, sponsors, endorses, or contributes money to any charity or other cause). You may not use any 3rd party material in your promotions or web site without prior written permission. You must secure permission to use any of our members' copywritten material, including, but not limited to, album graphic covers, photos, promotional wording and sound samples.
10. Limited License
We grant you a nonexclusive, revocable right to use the graphic image and text described in Section 9 and such other text or images for which we grant express permission, solely for the purpose of identifying your site as a Program participant and to assist in generating Product sales. You may not modify the graphic image or text, or any other of our images, in any way. We reserve all of our rights in the graphic image and text, any other images, our trade names and trademarks, and all other intellectual property rights. You agree to follow our Trademark Guidelines, as those guidelines may change from time to time. We may revoke your license at any time by giving you written notice.
11. Terms of the Agreement
The term of this Agreement will begin upon your signup in the Affiliate Program including the acceptance of this Agreement and will end when terminated by either party. Either you or we may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination. Upon the termination of this Agreement for any reason, you will immediately cease use of, and remove from your site, all links to our site, and all MDN trademarks and logos, and all other materials provided by or on behalf of us to you pursuant hereto or in connection with the Program. You are eligible to earn referral fees only on our sales of Qualifying Products that occur during the term, and referral fees earned through the date of termination will remain payable only if the related orders are not canceled or returned. We may withhold your final payment for a reasonable time to ensure that the correct amount is paid.
12. Liability
We will not be liable for indirect or accidental damages (loss of revenue, commissions) due to affiliate tracking failures, loss of database files, and any results of "intents of harm" to the program or our website. We do not make any expressed or implied warranties with respect to the affiliate program and/or products sold at this site. We make no claim that the operation of the affiliate program and our website will be error-free and we will not be liable for any interruptions or errors.
13. Modification
We may modify any of the terms and conditions contained in this Agreement, at any time and in our sole discretion, by posting a change notice or a new agreement on our site. Modifications may include, for example, changes in the scope of available referral fees, referral fee schedules, payment procedures, and Program rules. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING OUR POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON OUR SITE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.
14. Relationship of Parties
You and we are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. You will have no authority to make or accept any offers or representations on our behalf. You will not make any statement, whether on your site or otherwise, that reasonably would contradict anything in this Section.
15. Limitation of Liability
We will not be liable for indirect, special, or consequential damages (or any loss of revenue, profits, or data) arising in connection with this Agreement or the Program, even if we have been advised of the possibility of such damages. Further, our aggregate liability arising with respect to this Agreement and the Program will not exceed the total referral fees paid or payable to you under this Agreement.
16. Disclaimers
We make no express or implied warranties or representations with respect to the Program or any products sold through the Program (including, without limitation, warranties of fitness, merchantability, noninfringement, or any implied warranties arising out of a course of performance, dealing, or trade usage). In addition, we make no representation that the operation of our site will be uninterrupted or error-free, and we will not be liable for the consequences of any interruptions or errors.
17. Independent Investigation
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU UNDERSTAND THAT WE 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 COMPETE WITH YOUR WEB SITE. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.
18. Arbitration
Any dispute relating in any way to this Agreement (including any actual or alleged breach hereof), any transactions or activities under this Agreement or your relationship with us or any of our affiliates shall be submitted to confidential arbitration in Peoria, Illinois, except that, to the extent you have in any manner violated or threatened to violate our intellectual property rights, we may seek injunctive or other appropriate relief in any state or federal court in the state of Illinois (and you consent to non-exclusive jurisdiction and venue in such courts) or any other court of competent jurisdiction. Arbitration under this agreement shall be conducted under the rules then prevailing of the American Arbitration Association. The arbitrator's award shall be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under this Agreement shall be joined to an arbitration involving any other party subject to this Agreement, whether through class arbitration proceedings or otherwise.
19. Miscellaneous
This Agreement will be governed by the laws of the United States and the state of Illinois, without reference to rules governing choice of laws. You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns. 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.
ACKNOWLEDGED AND AGREED TO BY THE PARTIES:
Affiliate Program Director
Music Discovery Network
PO Box 6205
Peoria, IL 61601-6205
I indicate my approval of this Agreement and desire to become an Affiliate under these terms by filling out and submitting the Music Discovery Network Affiliate Program signup form.
