Indieclix Affiliate Participation Agreement
This IndieClix Affiliate Participation Agreement ("Agreement") is made among and between Magic Rock Inc. ("Magic Rock") and the Affiliate identified by his/her IndieClix account, hereinafter referred to as the "Affiliate." This Agreement commences upon the date of execution of Affiliate´s Electronic Signature, and terminates per the terms of the "Termination of this Agreement" section. Magic Rock and IndieClix, on the one hand, and Affiliate on the other hand are referred hereinafter collectively as the "Parties."
1 Recitals
1.1 WHEREAS IndieClix and www.IndieClix.com ("IndieClix"), are a service and website, respectively, owned by Magic Rock with an interest in partnering with the Affiliate and its website;
1.2 WHEREAS the Affiliate owns and/or operates a website of its own and has the right to authorize the display of an IndieClix banner, advertisement, or other marketing technology, as further explained and defined below;
1.3 WHEREAS the Parties seek a mutually beneficial arrangement whereby Affiliate posts advertisements, banners, and notices on its website, linking to Merchants for the purpose of directing internet traffic to said Merchants´ websites;
THEREFORE the Parties agree to the following terms and conditions:
2 Definitions
2.1 "Content" means text, images, sound and/or other media which reaches or is intended to reach the End-User via a device such as the internet, digital player, television, phones, pdas, or similar media delivering technology.
2.2 "End user" is a person or entity who consumes Content.
2.3 "Merchant" means any person or entity that owns or operates a Site and/or other business that seeks to acquire customers or other types of End Users.
2.4 "Merchant Program" or "Program" is any particular program in the IndieClix Service, set up by a Merchant which permits authorized Affiliates to receive compensation, or the opportunity for compensation, of a kind and quantity as defined by the Merchant for that particular Program, in exchange for the Affiliate´s placement of a Program Link on the Affiliate´s website.
2.5 "Program Link" means any code or other technology that (i) hyperlinks between two Sites, or (ii) otherwise causes an electronic device to display to its End User a banner, button, text-mention, word, phrase, logo or other textual or graphical material that, when activated by the End User, causes a Site to be served by IndieClix to an End User. The Program Link is tracked so that a Merchant can monitor the impressions, click-throughs and/or other activities related to the display, distribution and/or placement of such hyperlink.
2.6 "Service" or "IndieClix Service" is the method and system by which Program Links, and related IndieClix content and technology are administered, compensation is paid to Affiliates, and other related process occurs as contemplated by the terms, conditions, and mechanisms, set out and described in this Agreement.
2.7 "Tracked Activity" means any type of predefined web-activity occurring to a Program Link, such as web impressions, click-throughs, completed sale transactions, electronic downloads, etc., that can be tracked and quantified.
2.8 "Site" or "Website" is a collection of one or more web pages, associated together with a similar root URL displaying files accessible through the internet.
3 Affiliate Obligations and Representations
3.1 Service Enrollment Application. By submitting an Affiliate Application, attached hereto, Affiliate represents and warrants that all information contained in the Application is true and correct under penalty of perjury of the State of California. Affiliate acknowledges that Magic Rock and Merchants intend to rely upon information contained in the Application and do so based upon Affiliate´s representations as to that Application´s accuracy.
3.2 Additional Representations. Affiliate further represents and warrants:
3.2.1 The signatory to this Agreement and attached Application has the authority to enter into this Agreement, and make representations in Application on Affiliate´s behalf, is at least 18 years old, and acts as a proper authorized agent for Affiliate;
3.2.2 That Affiliate is the owner and/or authorized operator of a Website, Internet destination, mobile application, or other destination that is accessible by an internet connection, (collectively referred to as "Website" or "Webpage") and that Affiliate has authority to modify that Website;
3.2.3 That Affiliate intends to promote the IndieClix Program as described herein;
3.2.4 That Affiliate does not participate in the Program described herein for the purpose of acquiring Magic Rock, IndieClix, or Merchant´s trade secrets or to disrupt their businesses;
3.3 False Reports. Affiliate shall not endeavor to generate false reports regarding the frequency of the hits to the Program Link either by personally clicking on the Link, or otherwise.
3.4 Operating Standards for Affiliate´s Websites. Affiliate websites must conform to the following standards in order to participate in any Program. Violation of any of the following standards amounts to breach of this Agreement, the consequences of which shall include termination of Affiliate´s IndieClix account and removal from the IndieClix service. Accordingly, Affiliate shall:
3.4.1 State a clear online privacy policy, on its Website, to its visitors;
3.4.2 Refrain from violating state and/or federal law, including but not limited to violating intellectual property law such as copyright, patent, and trademark, or displaying on its Website any unlawfully threatening, harassing, defamatory, or obscene material;
3.4.3 Refrain from permitting the display of any pornographic materials whether permitted by law or not;
3.4.4 Refrain from violating ICANN rules;
3.4.5 Refrain from permitting, or through negligence allowing malicious code to be served on Affiliate Website, including but not limited to, viruses, Trojan horses, worms, time bombs, or cancelbots;
3.4.6 Refrain from displaying any materially false, inaccurate, fraudulent or misleading statements regarding the Merchant, IndieClix, Magic Rock, or the Service herein;
3.4.7 Refrain from violating the CAN SPAM Act, 15 U.S.C. § 7701 et seq.;
3.4.8 Refrain from installing spyware on a visitor´s computer, directly or indirectly;
3.4.9 Refrain from designing, engineering, or publishing any website, including but not limited to Affiliate´s Website in a manner that directs or redirects Internet traffic away from a Merchant Website;
3.4.10 Refrain from modifying, altering, the banner advertisement, HTML code, or images provided by Merchant to Affiliate associated with any Merchant Program;
3.4.11 Refrain from making any representations, either express or implied, or creating the appearance that a visitor to Affiliate´s Website is actually visiting the Merchant´s Website, (e.g., "framing" or "scraping" the Merchant website);
3.4.12 Refrain from using the words "official site" or otherwise suggest or imply that Affiliate site is an official Merchant site or partner, or otherwise expressly state or imply any relationship between Merchant and Affiliate except that of an Affiliate/Merchant relationship as defined in this Agreement;
3.4.13 Refrain from using Merchant content in a way that depicts the Merchant, Program or Service in a false way or in a poor light;
3.4.14 Refrain from using the IndieClix Service or the Program Link to make purchases from the Merchant for Affiliate´s own use, resale, or re-distribution;
3.4.15 Refrain from artificially inflating payout from Merchant to Affiliate through deceptive, fraudulent, or unlawful practices;
3.4.16 Refrain from placing Program Links in any website, blog, forum, e-mail blast, or Internet-based entity that Affiliate does not own or operate.
3.5 Maintenance of Links. To permit accurate tracking and reporting of Program activity on Affiliate Site, it is Affiliate´s responsibility to ensure and test that the Program Links between Affiliate Site and IndieClix are working properly. Neither IndieClix nor Merchant are responsible for Affiliate´s improperly formatted links or broken links. Affiliate hereby warrants that Affiliate is aware that a common reason for broken Program Links is that Merchant´s Program has changed and that the Affiliate has failed to update its Program Link appropriately. Affiliate shall update said links in a diligent manner when/if Affiliate is informed of any change to any given Program.
4 Affiliate Rights
4.1 Right to Access. During the term of this Agreement, Affiliate possesses a limited, non-exclusive, non-transferable, non-assignable right to access the Merchant Website through Program Links provided by the IndieClix Service. Affiliate agrees to abide by the Merchant´s terms of use agreement on Merchant´s Website. These Program Links are to be used solely for the purpose of generating sales of Merchant´s products from traffic originating from Affiliate´s Website per the terms of this Agreement.
4.2 Right to Payment on Timely Purchase Only. Affiliate shall be owed credit on a purchase made by End User at Merchant´s site, in the event that the End User makes her purchase within 30 days of having been directed to the Merchant site from the Affiliate´s Program Link. In the event that more than 30 days elapse between the End User linking to Merchant, via Affiliate´s Program Link, and that same End User´s ultimate purchase, then said purchase shall not be credited to Affiliate.
5 Program Terms
5.1 Signup Procedures. The Affiliate may enroll in any Merchant Program it chooses by visiting the IndieClix Website and following the directions located therein. Merchants may have their own local rules and policies, specific to the Merchant or specific to any particular Program. Affiliate is advised to review and understand those terms. By participating in any given Program with any given Merchant, said terms shall be presumptively binding on Affiliate. Note that, Magic Rock does not warrant any of the information provided by Merchant nor vouch for its truth nor accuracy. In the event that Affiliate has any questions regarding any particular Program information provided by Merchant, the Affiliate is advised to contact the Merchant directly.
5.2 Merchant Terms Vary Over Time. Merchants may unilaterally change the terms of any given Program—including Payout rates—at any time without first noticing Affiliate. Affiliate understands that it is advised to periodically check back with Merchant to determine if any material terms for any particular Program have been altered.
5.3 Admission to Merchants´ Programs. Acceptance or denial of Affiliates into any particular Merchant Program is at the pleasure of the Merchant. As a general policy, neither IndieClix nor Magic Rock seeks to control nor influence a Merchant´s determination, to admit or deny any given Affiliate to any particular Program. Affiliates who wish to appeal the Merchant´s decision to deny Affiliate participation in any given Program should contact that Merchant directly.
5.4 Termination of Programs. Programs and offers may be unilaterally discontinued by the Merchant, at any time. At the termination of any particular Program, Affiliate shall remove Program Links, and related images, media, and content specific to that Program. Removal of said material shall occur within one week of written notification, by Merchant and/or IndieClix to Affiliate. After that one week period, Affiliate shall cease all promotion activities related to the terminated Program Link.
6 Payout and Accounting Terms
The terms and conditions under which Affiliate shall be compensated for his/her participation in the IndieClix service, the process of accounting for said payout, and related matters are posted on the IndieClix webpage. Those terms and conditions are subject to change, upon IndieClix´s unilateral option, without prior notice.
7 Term and Termination of Agreement.
7.1 Term. This Agreement shall run the length of one (1) month, beginning on the first day of the month and ending on the last day of the month; referred to hereinafter as a "Term." At the end of the Term, the Agreement shall automatically renew itself for another single Term of identical length. In the event that this Agreement commences on a day other than the first day of the month, then the Agreement shall run from the date of commencement and run until the last day of the month, and thereafter the Term shall run regularly, and be automatically renewed regularly. Automatic renewal shall occur indefinitely, unless terminated per the terms of the sub-section, below.
7.2 How Terminated. This Agreement may be terminated in two ways, either through breach, or through notice of termination.
7.2.1 Notice of Termination. Automatic renewal, as discussed in the above sub-section, shall occur indefinitely, unless, prior to the automatic renewal date, one of the Parties provides written notice to the other of its intent to terminate this Agreement. Said written notice must (1) be sent by the other Party at least thirty (30) days prior to the last day of the Term, (2) express its intent to terminate, and (3) properly state the date of termination. Upon the passage of the properly noticed termination date, this Agreement shall terminate. Notice of termination may be issued by either Party for any reason or for no reason at all.
7.2.2 Termination Via Breach. Violation of any of the terms, conditions or prohibitions contained in this Agreement shall result in the immediate termination of this Agreement. This Agreement may also be terminated by a Party´s anticipatory breach: i.e. an expression by a Party that, although it has not yet, it does intend to breach the Agreement in the future.
7.3 Damages. In the event that this Agreement is terminated for whatever reason, including breach, the Parties shall be limited to a recovery of damages only.
7.4 Shifting Fees. In the event of any breach of this Agreement, or a cause of action, or arbitration occurring related to this Agreement, any Party aggrieved thereby shall be entitled to recover, as the prevailing Party, not only the amount of any judgment which may be awarded in favor of such Party, and against the losing Party, but also such other damages, costs and expenses as may be incurred by such Party, including court costs, reasonable attorney´s fees, arbitration fees, and other costs and expenses, taxable or otherwise, incurred in preparing for litigation or litigating such action, in establishing or maintaining the applicability of this Agreement or any provision hereof, or in prosecuting any cross-complaint based hereon. This section shall also apply in the event a Party seeks to appeal an arbitration award.
8 Indemnification and Limitation of Liability
8.1 Non-liability for Affiliate Negligence. Neither Magic Rock nor any of its sister businesses, parent, nor daughter companies, if any, principals, nor agents (collectively the "Magic Rock Indemnitees") shall be answerable or accountable in any manner for any harm or damage that may occur to any third party as a direct or indirect result of Affiliate´s negligence, carelessness, or recklessness, whether in act or omission related to Affiliate´s Website, internet presence, or other electronic or non-electronic communication. Said harm or damage includes but is not limited to Affiliate´s: defamation of another, violation of copyright or patent law, violation of law pertaining to privacy rights, false advertising, misrepresentation, violation of laws covering electronic communication, such as the Digital Millennium Copyright Act, the CAN SPAM Act, or other laws or rules pertaining to the internet such as those issued by foreign governments or non-governmental authority.
8.2 Indemnification. To the fullest extent permitted by law, Affiliate shall indemnify and hold harmless the Magic Rock Indemnitees against any and all claims for damages, costs, liabilities, losses, expenses, liens, demands, and causes of action pertaining or related to a third party arising out of Affiliate´s negligence, carelessness, or recklessness, whether in act or omission, related to Affiliate´s Website, internet presence, or other electronic or non-electronic communication. Similarly, Affiliate shall indemnify and hold harmless the Magic Rock Indemnitees against any and all costs, expenses, attorney´s fees and liability incurred by the Magic Rock Indemnitees in defending against such claims, alleged by a third party whether the same proceed to judgment or not.
8.3 Defense. In the event of any such action as contemplated in this section, is filed against the Magic Rock Indemnitees, then the Magic Rock Indemnitees shall either permit Affiliate to conduct a defense, at Affiliate´s own expense, under the provisions of this Agreement, or shall, at the Magic Rock Indemnitees´ unilateral option, choose to mount its own defense in accordance with Cal. Civ. Code § 2778. In the event the Magic Rock Indemnitees desire the Affiliate to so defend, then Magic Rock Indemnitees shall provide notice of same in writing, and shall cooperate with Affiliate in good faith for the purposes of defending the suit.
8.4 Effect of Settlement on Indemnity. In the event the Magic Rock Indemnitees tender their defense to Affiliate in writing as set out in the previous sub-section, and in the event Affiliate declines to offer a defense to the Magic Rock Indemnitees, or declines to reimburse the Magic Rock Indemnitees for same, then any subsequent settlement between the Magic Rock Indemnitees and the third parties bringing suit establishes conclusive evidence of Affiliate liability, for which indemnity is owed under the terms of this section.
8.5 Liability Re Merchant Website. Magic Rock shall not be held accountable for loss of sales of any kind caused by a failure of Merchant´s website, a failure of Merchant to supply goods and/or services, or otherwise any other problem or delay caused by a Merchant´s inability to fulfill orders. In the event that sales are lost as a result of any given Merchant´s actions or omissions causing a loss of revenue to Affiliate, then Affiliate may not recover as against Magic Rock, even in the event that it is determined that Magic Rock contributed toward causing the Merchant´s improper action or omission, whether purposeful or negligent, whether directly or indirectly.
8.6 Promissory Estoppel Liability. Affiliate understands and acknowledges that involving itself with the Service in general or any particular Merchant Program in particular may cause Affiliate to expend time, energy, and/or resources in creating, maintaining, or altering its Website. Other unforeseen expenses may result as well. Affiliate further understands that, given these foreseeable and unforeseeable expenses, participation in the Service or any particular Merchant Program may or may not result in net profit for Affiliate. Affiliate assumes the risk that gross expenditures of this sort may exceed profits. Affiliate further understands that given the Termination Clause, above, as well as the ever-present threat of other unforeseen events, Affiliate may be removed from the Service or any particular Program prior to profitability. Affiliate assumes the risk of that possibility as well. In short, Affiliate relies upon no certitude not clearly stated in this Agreement regarding profitability from participation in the IndieClix Service, or any particular Merchant Program and waives any right to allege promissory estoppel against Magic Rock or any of its sister businesses, parent, or daughter companies, if any, principals, or agents, for any promise not explicitly made herein.
9 Arbitration
9.1 Arbitration Before JAMS. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in Los Angeles County, before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures, amended and superseded only by the following Rules.
9.1.1 No Discovery. The Parties have no right to demand discovery from each other in any form qualified by the following exceptions. Discovery may be demanded pertaining to:
9.1.1.1 Unprivileged documents that a Party intends to introduce as exhibits at the Arbitration Hearing;
9.1.1.2 Names and contact information of any individual with knowledge about the dispute or claim;
9.1.1.3 Names of all experts who may be called upon to testify or whose report may be introduced at the Arbitration Hearing.
9.1.2 Excluded Evidence. Documents that were not previously exchanged, or witnesses and experts that were not previously identified, may not be considered by the Arbitrator at the Hearing, unless agreed by the Parties or upon a showing of good cause.
9.2 Entry of Award. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
9.3 Allocation of Fees and Costs. The arbitrator may, in the Award, allocate all or part of the costs of the arbitration, including the fees of the arbitrator and the reasonable attorneys´ fees of the prevailing party.
9.4 Alter Ego. In the event that either Party alleges alter ego against the other, or seeks to pierce the corporate veil, by bringing into any given action individuals named personally, then those personally named individuals, whether signatories to this Agreement or not, are authorized to invoke this arbitration clause, and, in that event, said clause shall continue to be binding on all Parties to this Agreement.
10 Miscellaneous Terms
10.1 Ambiguities. This Agreement, and each of the provisions hereof, has been reached as the result of negotiations between the Parties. Each of the Parties hereto expressly acknowledges and agrees that this Agreement shall not be deemed to have been prepared by or drafted by any particular Party or Parties, and that the normal rule of construction to the effect that ambiguities are to be resolved against the drafting Party or Parties shall not be employed in the interpretation of this Agreement.
10.2 Binding. This Agreement shall be binding upon, and shall inure to the benefit of, each Party hereto, each Party´s respective subsidiaries and affiliated companies, heirs, successors, and/or assigns.
10.3 Modification. No modification or amendment of this Agreement shall be of any force or effect unless in writing and executed by all Parties hereto.
10.4 Independent Contractors. All Affiliates, and Merchants are each independent contractors. Neither this Agreement, nor any other document, nor any other course of dealing, nor any other oral representations shall create any form of partnership, joint venture, agency, franchise, sales representative, or employment relationship between and/or among the Parties.
10.5 Controlling Law. This Agreement shall be construed in accordance with and be governed by the laws of the State of California, without regard to the conflicts of law principles thereof. Any lawsuit arising from this Agreement shall be brought in the federal or state courts located in Los Angeles County, California.
10.6 Publicity Solicitation. Affiliate shall not issue any press release or make any other similar public announcement that in any way makes any reference to IndieClix or Magic Rock without Magic Rock´s prior written consent.
10.7 Force Majeure. The Parties´ performance under this Agreement shall be excused to the extent that such performance is hindered, delayed or made commercially impractical by causes beyond the respective Parties´ reasonable control.
10.8 No Waiver. The failure of any Party to enforce strict performance of any provision of this Agreement shall not constitute a waiver of that Party´s right to subsequently enforce said provision or any other provision of this Agreement.
10.9 Entire Agreement. This Agreement contains the entire Agreement of the Parties with respect to the matters covered hereby, and supersedes any oral or written understandings or Agreements between the Parties with respect to the subject matter of this Agreement. No person or Party is authorized to make any representations or warranties except as set forth herein, and no agreement, statement, representation or promise by any Party hereto which is not contained herein shall be valid or binding.
10.10 Representations. Each Party to this Agreement acknowledges that it has not relied upon any warranties, representations, statements or promises by any of the other Parties herein.
10.11 Counterparts. This Agreement may be executed simultaneously or in any number of counterparts, each of which shall be deemed an original, equally admissible in evidence, but all of which together shall constitute one and the same Agreement, notwithstanding that the signatures, or Electronic Signatures of each Party or their respective representatives do not appear on the same page of this Agreement.
10.12 Severance. If any provision, or any part of any provision, of this Agreement is, for any reason, held to be invalid, unenforceable, or contrary to any public policy, law, statute or regulation, then the remainder of this Agreement shall not be affected thereby, and shall remain valid and fully enforceable.
10.13 Written Notice. Written notice as described herein shall include not only paper documents delivered via U.S. Mail or reliable delivery service but shall also include written documents delivered by reliable servers to e-mail address or documents sent via facsimile.
So Agreed. When Affiliate selects the "Submit" button, associated with this Agreement, Affiliate acknowledges that he/she has read and understood the terms and conditions of the Agreement, and agrees to be bound by the terms and conditions. Affiliate further acknowledges and consents to the validity of this "Electronic Signature" as represented by clicking on the "Submit" button, which operates in the exact same way as if the Affiliate had used a pen and executed this Agreement with a signature to the Agreement, in his/her own hand.
MAGIC ROCK INC.
By:
[authorized representative] [date]
[representative´s title]
Magic Rock Entertainment
2385 Buena Vista Street,
Irwindale, California 91010
T: 626.227.7127
F: 626.226.4059
AFFILIATE
By:
[name + title] [date]
Name of Business
Address
Phone