Affiliate Program Agreement
THIS IS A LEGAL AGREEMENT BETWEEN YOU AND INSTRUMENTPRO.COM. BY CLICKING ON THE "APPLY" BUTTON AT THE END OF THE AFFILIATE ONLINE APPLICATION, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. PLEASE READ THIS ENTIRE AGREEMENT CAREFULLY BEFORE ACCEPTING ITS TERMS.
This agreement contains the complete terms and conditions between Music Unlimited, a California company, ("Us") and you, the applicant "You"), regarding your application to participate in the Instrumentpro.com Affiliate Program (the "Affiliate Program"). Upon our acceptance of your application and execution of this agreement by You, or a duly authorized representative of yours, in the place provided below, this will be a legally binding agreement between You and Music Unlimited.
1. Enrolling in the Affiliate Program. To apply for participation in the affiliate Program, You must properly complete an Affiliate Program application and submit the Application to Us via our web site. We will review the Application and will notify You of our decision whether to accept the Application or reject it. We reserve the right to accept or reject the Application at our sole discretion.
An application will be automatically rejected if it is submitted from an entity that has a web site any of the following:
- Promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age
- Promotes sexually explicit materials
- Promotes violence
- Promotes unlawful activities
- Violates intellectual property rights
- Engages in Unsolicted Bulk Emailing (also known as spam).
If, at a later time after the Application is accepted, your web site is found to contain any of the above, we reserve the right, at our sole discretion, to terminate the Agreement.
2. Links to Our Web Site(s). After we have notified You of acceptance of the Application, You will provide one or more links from your site to our site(s). We will provide You with instructions and special link formats "Link Formats") designed for accurate tracking and reporting for all links between your site and our site(s) and You will be solely responsible for properly utilizing the Link Formats. Once established, the links utilizing the Link Formats ("Special Links") will be used to determine any fees that may be paid. Failure by You to maintain the links or use the Link Formats as instructed may result in a loss to You of fees.
We will process orders that are placed on our site by customers who follow the Special Links directly from your site to our site(s) (the "Referred Orders"), and will record those orders as being associated with a referral through the Special Links from your site. We will periodically make available to You a report summarizing that sales activity.
3. Affiliate Referral Fees. On a MONTHLY basis, we will pay a fee to you, in accordance with the Affiliate Referral Fee Schedule below (the "Affiliate Referral Fee"), based on the "Shipped" Referred Orders that have been recorded. For a Referred Order to generate a fee, the order must meet the following conditions (the "Qualified Referral Order"):
- A customer must have followed the Special Links from your site to our Site(s)
- A a customer must have chosen one or more products
- A customer must have ordered the products through our automated ordering system ("Shopping Cart") within 45 days of your referral
- That customer must have accepted delivery of and paid us in full for that order
Orders that are placed after a customer enters our site through a link other than the Special Links or by a means not through a link are not eligible for the Affiliate Referral Fee. Orders placed subsequent to the Referred Order other than through a Special Link as a Referred Order are not eligible for the Affiliate Referral Fee.
All customers who purchase product from us under the Affiliate Program shall be deemed customers of Instrumentpro.com Accordingly, those customers and their transactions with us shall be governed by all the policies, terms and conditions that customers of Instrumentpro.com are subject to. Instrumentpro.com does not ship international orders.
Orders placed by You or your representatives shall not be eligible for an Affiliate Referral Fee. Application by you for such fees may result in termination of your participation in the Affiliate Referral Program, at our sole discretion.
4. Affiliate Referral Fee Schedule. You will earn an Affiliate Referral Fee based on the net sales revenue of "Shipped" Qualified Referral Orders less shipping and handling charges, taxes collected, service contract revenue, and any other non-product charges on that order (the "Referral Order Revenue") as follows:
Referral fees shall be seven percent (7%) of Referral "Shipped" Order Revenue. At our sole discretion, we may establish other special referral rates for special promotions.
5. Affiliate Referral Fee Payment. Within approximately 30 days following the end of each calendar month, we will send You a check for the Affiliate Referral Fee earned on the Referral "Shipped" Order Revenue for products that were shipped during that calendar month. If the fees payable to you for any month are less than $25.00, we will hold payment until the next month in which the accumulated $25.00 minimum is met.
If a Qualified Referral Order is returned by a customer, the associated Affiliate Referral Fee will be deducted from the fees to be paid to you. In the case that the fees for returned products exceed the balance of fees to be paid to you, You may be billed for that excess.
6. Limited Licenses. During the Term (as defined below) of this agreement, we grant to You a nonexclusive, revocable, non-transferable, non-sublicenseable right and license to use (a) the Special Links for the sole purpose of displaying the Special Links on your website with the URL specified in your Application in order to connect your site to our site and (b) our other names, marks or symbols (the "Licensed Materials") for the sole purpose of advertising, promoting or marketing your affiliate relationship with us.
Prior to using any of the Licensed Materials, You will submit to us for approval a draft of all proposed material that incorporates the Licensed Materials (e.g., publicity copy, artwork and layout), together with a brief statement setting forth the proposed use of such materials and any other background or supporting material reasonably requested by us to allow us to make an informed judgment. All such materials will be submitted to us at least ten (10) days prior to the date of first intended use. We will notify You of our approval or disapproval of such materials within five (5) business days of our receipt of all information required to be submitted. The approval or disapproval of such materials will be in our sole discretion. Any materials not receiving our specific written preliminary approval will be deemed disapproved.
You will use the Special Links and the Licensed Materials only in the exact form, style and type approved by us, and You will include with the Special Links and the Licensed Materials such copyright, trademark or other notices as may be required by law or requested by us. We will have the right to alter, modify or discontinue the use of any of the Special Links or the Licensed Materials or the form, style or type thereof at any time in our sole discretion.
In addition to the foregoing control measures, we may implement additional control measures to protect our intellectual property rights in the Links and the Licensed Materials, and You agree to cooperate with us in our efforts to protect such intellectual property rights. You further agree to maintain a level of quality in connection with your use of the Links and the Licensed Materials that is consistent with general industry standards, and You acknowledge that we will periodically monitor your use of the Special Links and the Licensed Materials to confirm your maintenance of such quality levels.
You acknowledge that, except for the license expressly granted in this agreement, You have not acquired and will not acquire any right, interest or title to the Special Links or the Licensed Materials by reason of this agreement or through the exercise of any rights in the Special Links or the Licensed Materials granted to You hereunder. You further acknowledge that all proprietary rights in the Special Links and the Licensed Materials and the goodwill associated therewith are solely owned by and belong to us, and that all additional goodwill associated with the Special Links and the Licensed Materials created through their use by You will inure to our sole benefit.
As between You and us, we will be considered the creator of the Special Links and the Licensed Materials, and all rights in the Special Links and the Licensed Materials will be our property. In addition, You hereby grant, assign and convey to us any and all rights You may now have or may be deemed to have in the future with respect to the Special Links and the Licensed Materials or any portion of them. You agree not to register or attempt to register any brand, names, marks, or other elements of the Special Links or the Licensed Materials as a trademark, service mark, Internet domain name, trade name, or any similar trademarks or name, with any domestic or foreign governmental or quasi-governmental authority which would be likely to cause confusion with any of the Special Links or the Licensed Materials. You agree not to commit any act that would cause any of the Special Links or the Licensed Materials to vest in the public domain anywhere in the United States or Canada.
You acknowledge that Instrumentpro.com holds the rights to distribution and sale of all merchandise and has established said rights by securing specific dealer agreements with each manufacturer they represent. You also acknowledge that all transactions for such merchandise must be handled by Music Unlimited and transacted at the Instrumentpro.com web-site www.instrumentpro.com . You agree to only promote such products as Instrumentpro.com makes available to you at www.cj.com or http://www.instrumentproaffiliates.com within any promotion associated with Instrumentpro.com or utilizing the Instrumentpro.com logo. Instrumentpro.com neither grants nor implies permission to use any manufacturer's trademarks since any and all such trademarks are the intellectual property of said manufacturers.
Trademarks. Other than the right to display the links containing Instrumentpro.com trademarks, names and logos ("Instrumentpro.com Trademarks") on Affiliate's internet site in the manner prescribed by Instrumentpro.com, Affiliate shall have no right to otherwise utilize or display Instrumentpro.com Trademarks without prior written approval.
Predatory Advertising. Affiliate agrees not to use any predatory advertising methods in the promotion of Instrumentpro.com products, services or affiliate program.
Predatory advertising is defined as any method that creates or overlays links or banners on web sites, spawns browser windows, or any method invented to generate traffic from a web site without that web site owner's expressed, written permission.
Examples include, but are not limited to, keyword parsing browser plugins such as TopText and Surf+, banner replacement technology such as Gator, and browser spawning technology that is not web site dependent.
Participation in predatory advertising programs will be cause for affiliate's immediate termination and any unpaid commissions will be unearned, disallowed and/or charged back.
Search Engine Placement. Instrumentpro.com recognizes the need for affiliates to promote the Instrumentpro.com Affiliate Program through search engine placement. However, Instrumentpro.com reserves exclusive rights as to the advertising of our trademarked company name within all pay-for-placement and all other search engines. These names include: Instrumentpro.com, www.instrumentpro.com, etc and any variation of our trademarked name. Additionally, you may not claim to be Instrumentpro.com in any pay-for-placement or other search engines. Violations will be cause for affiliate's immediate termination and any unpaid commissions will be unearned, disallowed and/or charged back.
7. Indemnification. You agree that You will be solely responsible for, and that You will defend, indemnify and hold us and our officers, directors, agents, employees and representatives harmless from and against, any and all claims, suits, damages, losses, liabilities, obligations, penalties and expenses, including legal fees and expenses, relating to or based on the development, operation and maintenance of your site, including all materials that appear on your site; the technical operation of your site and all related equipment; creating and posting product reviews, descriptions and references on your site and linking those descriptions to our site; the accuracy and propriety of materials posted on your site; the sale or offering for sale, use or consumption of any products on your site; and ensuring that materials posted on your site do not violate or infringe upon the rights of any third party and are not libelous or otherwise illegal.
8. Term. The "Term" of this agreement will begin upon our acceptance of your program application and will end on the date this agreement is terminated by either party. Either You or we may terminate this agreement at any time, with or without cause, for any reason whatsoever, by giving the other party two days' 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 and Licensed Materials and any other names, marks, symbols, copyrights, logos, fanciful or other characters, designs, representations, figures, drawings, photographs, ideas or other proprietary designations or properties owned, developed, licensed or created by us and/or provided by or on behalf of us to You pursuant to this agreement or in connection with the Program. You will not receive any fees on product sales occurring following the end of the Term, and fees earned through the end of the Term 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.
9. Modification. We may modify any of the terms and conditions contained in this Affiliate Referral Agreement, at any time and at our sole discretion, by posting a change notice or a new agreement on our site. Modifications may include, for example, changes in the fee schedule, payment procedures nd 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.
10. 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 Affiliate Referral 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 Affiliate Referral Program will not exceed the total Affiliate Referral Fees paid or payable to You under this agreement.
11. 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.
12. Independent Investigation. YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, HAVE HAD AN OPPORTUNITY TO CONSULT WITH YOUR OWN LEGAL ADVISORS IF YOU SO DESIRED, AND AGREE TO ALL THE TERMS AND CONDITIONS SET FORTH HEREIN. YOU AGREE THAT, IN INTERPRETING THIS AGREEMENT, NO WEIGHT SHALL BE PLACED UPON THE FACT THAT THIS AGREEMENT HAS BEEN DRAFTED BY US, AND YOU SHALL NOT ASSERT THAT THIS AGREEMENT IS UNENFORCEABLE OR INVALID ON THE GROUNDS THAT IT IS A CONTRACT OF ADHESION, THAT IT IS UNCONSCIONABLE OR ANY SIMILAR THEORY. 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.
13. Entire Agreement. The provisions contained in this agreement constitute the entire agreement between the parties with respect to the subject matter of this agreement, and no statement or inducement with respect to such subject matter by any party which is not contained in this agreement shall be valid or binding between the parties.
14. Assignment. You may not assign or transfer this agreement or any interest herein, nor shall the same be assignable by operation of law, without our prior written consent. For this purpose, "assignment" shall include any sale of a majority of the voting power of your capital stock or any merger, consolidation or other comparable transaction following which you are not the surviving corporation.
15. Governing Law. This agreement shall be governed by, and construed in accordance with, the laws of the State of California. Any legal proceeding of any nature brought by either party against the other to enforce any right or obligation under this agreement, or arising out of any matter pertaining to this agreement, shall be submitted for trial, without jury, before the federal or state courts located in the State of California. The parties consent and submit to the jurisdiction of any such court and agree to accept service of process inside or outside the State of California in any matter to be submitted to any such court pursuant hereto.
16. Miscellaneous. No release, discharge or waiver of any provision of this agreement will be enforceable against or binding upon either party unless in writing and executed by the party granting such release, discharge or waiver. Neither the failure to insist upon strict performance of any of the agreements, terms, covenants or conditions hereof, nor the acceptance of monies due hereunder with knowledge of a breach of this agreement, shall be deemed a waiver of any rights or remedies that either party may have or a waiver of any subsequent breach or default in any of such agreements, terms, covenants and conditions.
If any term or provision of this agreement shall be found to be void or contrary to law, such term or provision shall, but only to the extent necessary to bring this agreement within the requirements of law, be deemed to be severable from the other terms and provisions hereof, and the remainder of this agreement shall be given effect as if the parties had not included the severed term herein.
THIS IS A LEGAL AGREEMENT BETWEEN YOU AND INSTRUMENTPRO.COM BY CLICKING ON THE "APPLY" BUTTON AT THE END OF THE AFFILIATE ONLINE APPLICATION, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. PLEASE READ THIS ENTIRE AGREEMENT CAREFULLY BEFORE ACCEPTING ITS TERMS.
Apply to the InstrumentPro Affiliate Program