AFFILIATE PROGRAM TERMS AND CONDITIONS
Please read the entire agreement. This is a legal agreement between you (the “Affiliate”) and Institute of Digital Music LLC (the “Company”), doing business on www.djcoursesonline.com (collectively, the “Parties”). By submitting the online application you are agreeing that you have read and understand the terms and conditions of this agreement and that you agree to be legally responsible for each and every term and condition.
1. Definitions. Throughout this Agreement, capitalized terms shall have the meaning ascribed to them in quotes. In addition, the following definitions apply:
a. “Advertising” or “Advertisements” means any and all banner advertisements, text links, or other solicitations provided by Company to Affiliate to promote the Company’s Services and/or which contain a Link to the Company’s Site.
b. “Link” means a Company-provided embedded graphic, icon, or text, containing a unique hypertext pointer to the URL address for the Company Site embedded in an Advertisement, and which identifies the number of consumers that become Subscribers as a direct result of an Advertisement.
c. “Services” means all of the services offered on the Company Site, including, but not limited to, any online and DVD training and tutorial services, and any other products or services as the Company may offer, modify, or amend, from time-to-time.
d. “Site” means a World Wide Web site. The “Company Site” means the Company’s website located at www.djcoursesonline.com, and/or any other additional, substitute or successor Site that may be designated by the Company.
e. “Subscriber” means a person who (i) subscribes to the Company’s Services directly using a Link and through such Link, successfully registers and becomes a paying member of the Company’s Services (i.e., with valid and accurate name, email address, and payment information) via the Company Site; (ii) does not cancel his/her subscription within the time permitted by the Company to do so; (iii) does not obtain a refund from the Company for such subscription; and (iv) has not previously subscribed to the Company’s Services (collectively, “Qualified Subscription”).
2. Description of the Program. The purpose of Company’s affiliate program (the “Program”) is to permit Affiliate to advertise and promote the Company’s Services on Affiliate’s Site and to earn Commissions for Qualified Subscriptions made by Affiliate’s end users. In order to facilitate Affiliate’s advertisement of the Services, Company may make available to Affiliate Advertisements, data, images, text, link formats, widgets, links and other linking tools, and other information in connection with the Program (“Promotional Materials”). All Promotional Materials are the Company’s intellectual property.
3. Program Enrollment Process. To begin the enrollment process, Affiliate will complete and submit the online application at www.djcoursesonline.com/dj-affiliate-program/. The fact that Company auto-approves all applications does not imply that Company may not re-evaluate Affiliate’s application at a later time. Company may reject Affiliate’s application at Company’s sole discretion. Company may cancel Affiliate’s application if Company determines that Affiliate’s site is unsuitable for the Program.
4. Use of Promotional Materials. The Affiliate’s use and display of the Promotional Materials on the Affiliate’s site shall conform to the following terms, conditions and specifications:
a. Affiliate may not use any graphic, textual or other materials to promote Company’s website, products or services other than the Promotional Materials, unless Company agrees to such other materials in writing prior to their display.
b. Affiliate may only use the Promotional Materials for the purpose of promoting Company’s website (and the products and services available thereon), and for linking to Company’s website.
c. Affiliate will not alter, add to, subtract from, or otherwise modify the Promotional Materials as they are prepared by Company. If Affiliate wishes to alter or otherwise modify the Promotional Materials, Affiliate must obtain prior written consent from Company for such alteration or modification.
d. The Promotional Materials will be used to link only to Company’s website, to the specific page and address as specified by Company.
5. License. Company hereby grants to Affiliate a nonexclusive, nontransferable license (the “License”) to use the Promotional Materials as specified under the terms and conditions of this Agreement. The term of the License shall expire upon the expiration or termination of this Agreement.
6. Intellectual Property. Company retains all rights, ownership, and interest in the Promotional Materials, and in any copyright, trademark, or other intellectual property in the Promotional Materials. Nothing in this Agreement shall be construed to grant Affiliate any rights, ownership or interest in the Promotional Materials, or in the underlying intellectual property, other than the rights to use the Promotional Materials granted under the License, as set forth in Section 5.
7. Relationship of Parties. This Agreement shall not be construed to create any employment relationship, agency relationship, or partnership between Company and Affiliate. Affiliate shall provide services for Company as an independent contractor. It is understood that the Company will not withhold any amounts for payment of taxes from the compensation of Affiliate and that Affiliate will be solely responsible to pay any and all applicable local, state or federal taxes from said payments, including payments owed to its employees or subagents. Affiliate shall have no authority to bind Company into any agreement, nor shall Affiliate be considered to be an agent of Company in any respect.
a. During the Term and with respect to Qualified Subscriptions, the Company will pay Affiliate a commission (the “Commission”) for each new Subscriber. The Company reserves the right to adjust the Commission payable to Affiliate to the extent of any reporting errors, Charge-backs, fraudulent Subscriptions or intentional manipulations of the registration process, all as determined in our reasonable, good faith discretion. For the purposes of this Agreement, a “Charge-back” of a Commission may occur in the following events: (i) a Subscriber receives a cash refund for the Services; (ii) a sale that is eligible for a Commission is later determined to be fraudulent, duplicate, false or otherwise unqualified by the Company; or (iii) the Company, in its sole discretion, determines that a Subscriber was acquired by an Affiliate in breach of the terms of this Agreement. Company is under no obligation to provide a mechanism of appeal to Affiliate for any Charge-backs.
b. In addition to all other remedies available to the Company, Company reserves the right to refuse to make any payment to Affiliate with respect to any Subscriber that the Company determines was obtained as a result of promotional efforts that were in breach of this Agreement. Unless otherwise expressly stated in writing by the Company, Commissions shall be in accordance with the pricing schedule set forth in the Affiliate Resource Center. The Company reserves the right to change the Commissions at any time by providing notice to Affiliate either via email or by a posting in the Affiliate Resource Center.
c. Commissions are held for a period of 30 days from any purchase to protect Company in the event of any Charge-back that may occur.
9. Affiliate’s Representations and Warranties. Affiliate represents and warrants the following:
a. Affiliate has the legal authority to enter into this Agreement and to be bound to the promises, covenants, and other duties set forth in this Agreement.
b. Affiliate’s website does not contain any materials that are:
- Sexually explicit, obscene, or pornographic;
- Offensive, profane, hateful, threatening, harmful, defamatory, libelous, harassing, or discriminatory (whether based on race, ethnicity, creed, religion, gender, sexual orientation, physical disability, or otherwise);
- Graphically violent, including any violent video game images; or
- Solicitous of any unlawful behavior
c. Affiliate has obtained any necessary clearances, licenses, or other permission for any intellectual property used on Affiliate’s website. Nothing on Affiliate’s website infringes upon the intellectual property rights of any person or entity. No person or entity has brought or threatened an action claiming such infringement, nor does Affiliate have any reason to believe that any person or entity will bring or threaten such a claim in the future.
d. Affiliate will not use the Promotional Materials in any manner other than those set forth in this Agreement.
e. Affiliate will not make any claim to ownership of the Promotional Materials, or of the copyright, trademark, or other intellectual property therein.
f. Affiliate will not publish or otherwise distribute any advertising materials for Affiliate’s website that reference Company or Company’s website unless Company gives prior written consent to the distribution of such materials. Affiliate will not use Company’s name (or any name that is confusingly similar to Company’s name) for any purpose on its website, in its promotional materials, or in any other context except to promote Company’s website as specified in this Agreement. Affiliate will not register any domain name that incorporates Company’s name, or that is confusingly similar to Company’s name.
g. Affiliate will not engage in the distribution of any unsolicited bulk emails (spam) in any way mentioning or referencing Company or Company’s website.
10. Indemnification. Affiliate shall indemnify Company and hold harmless Company from any claim, damage, lawsuit, action, complaint, or other costs arising out of any breach of Affiliate’s warranties set forth in Section 9 above. Affiliate shall also indemnify and hold harmless Company for any damage, loss or other cost arising out of the use or misuse by Affiliate of the Promotional Materials.
11. Confidentiality. Any information that Affiliate is exposed to by virtue of its relationship with Company under this Agreement, which information is not available to the general public, shall be considered to be “Confidential Company Information.” Affiliate may not disclose any Confidential Company Information to any person or entity, except where compelled by law, unless Affiliate obtains prior written consent for such disclosure from Company.
a. This Agreement shall take effect immediately, and shall remain in full force and effect indefinitely, or until terminated pursuant to this Section 12.
b. Either party shall have the right to terminate this Agreement at any time, with or without cause, by giving the other party written notice.
c. Upon termination of this Agreement, Affiliate must immediately cease serving Advertisements. No Commissions shall be due with respect to Subscribers who register after the date of the notice of termination. Company reserves the right to withhold Affiliate’s final payment for a reasonable period of time as necessary to calculate properly any amount due to Affiliate. Upon termination of this Agreement, all rights and obligations of the Parties under this Agreement will be extinguished, except for those rights and obligations that either by their express terms survive or that are otherwise necessary for the enforcement of this Agreement.
13. Taxes. Company shall not be responsible for any taxes owed by Affiliate arising out of Affiliate’s relationship with Company as set forth in this Agreement. Company shall not withhold any taxes from the Commissions paid to Affiliate.
14. Limitation of Liability. Company shall not be liable for any loss of profits or costs, or for any direct, indirect, special, incidental or consequential damages, including costs associated with the procurement of substitute goods or services (whether Company was or should have been aware or advised of the possibility of such damage), arising out of or associated with any loss, suspension or interruption of service, termination of this Agreement, use or misuse of the Promotional Materials, or other performance of services under this Agreement.
15. Counterparts. This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken together, shall constitute one agreement.
16. Severability. If any part or parts of this Agreement shall be held unenforceable for any reason, the remainder of this Agreement shall continue in full force and effect. If any provision of this Agreement is deemed invalid or unenforceable by any court of competent jurisdiction, and if limiting such provision would make the provision valid, then such provision shall be deemed to be construed as so limited.
17. Headings. The headings for section herein are for convenience only and shall not affect the meaning of the provisions of this Agreement.
18. Entire Agreement. This Agreement constitutes the entire agreement between Company and Affiliate, and supersedes any prior understanding or representation of any kind preceding the date of this Agreement. There are no other promises, conditions, understandings or other agreements, whether oral or written, relating to the subject matter of this Agreement.
19. Miscellaneous. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Georgia without regard to the conflicts of laws and principles thereof.