|
Affiliate Program – Terms and Conditions Agreement
Family Values Cinema Affiliate Program
This Agreement contains the terms and conditions that apply to your participation as an Affiliate in the FAMILY VALUES CINEMA (“FVC”) Affiliate Program and to the establishment of links from your Affiliate Web site to our Web site, "FAMILYVALUESCINEMA.com".
THIS IS A LEGALLY BINDING AGREEMENT. BY COMPLETING AND SUBMITTING THE ONLINE APPLICATION, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THIS OPERATING AGREEMENT.
1. Enrollment in the Program
To begin the enrollment process, you will submit a complete FVC Affiliate Program application via the Family Values Cinema.com web site. We will evaluate your application in good faith and will notify you of its acceptance or rejection. We may reject your application if we determine (in our sole discretion) that your site is unsuitable for the FVC Affiliate Program. Unsuitable sites include, but are not limited to, those that:
- promote sexually explicit materials
- promote violence
- promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age
- promote illegal activities;
- otherwise violate intellectual property rights.
By participating in the FVC Affiliate Program you agree that you will not engage in any such activities. If we reject your application, you are welcome to reapply to the FVC Affiliate 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 FVC Affiliate Program, we may terminate this Agreement. Participation in the FVC Affiliate Program is limited to parties that lawfully can enter into and form contracts under applicable law.
2. Term of Agreement
This Agreement shall begin upon FVC's acceptance of Affiliate's application. This Agreement shall remain in effect until terminated in writing by either party upon thirty (30) days written notice.
3. Rights Granted
a. Affiliate agrees to promote FVC, its services, updates and upcoming releases to Affiliate's members, constituents, mailing list, consumers and/ or customers (collectively "Members") via Affiliate's website, newsletters, electronic and printed mailings, correspondence and communications now established or hereafter devised, to its Members and where appropriate, during engagements (collectively "Promotion").
b. WE GRANT YOU A NON-EXCLUSIVE, NON-TRANSFERABLE, REVOCABLE RIGHT TO (i) ACCESS OUR SITE THROUGH THE LINKS SOLELY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT AND (ii) SOLELY IN CONNECTION WITH SUCH LINKS, TO USE THE FAMILY VALUES CINEMA TRADEMARK AND LOGO AND SIMILAR IDENTIFYING MATERIAL RELATING TO US BUT ONLY IN THE FORMS THAT WE PROVIDE TO YOU (COLLECTIVELY, THE "LICENSED MATERIALS"), FOR THE SOLE PURPOSE OF LINKING YOUR SITE TO OUR SITE, WHERE YOUR USERS CAN PURCHASE PRODUCTS FROM OUR SITE. YOU MAY NOT ALTER, MODIFY, OR CHANGE THE LICENSED MATERIALS IN ANY WAY. WE RESERVE ALL OF OUR RIGHTS IN THE LICENSED MATERIALS. YOU ACCEPT THESE RIGHTS AND LICENSES SUBJECT TO THE TERMS AND CONDITIONS IN THIS AGREEMENT.
c. You acknowledge FVC’s ownership in its Licensed Materials, agree that you will not do anything inconsistent with FVC’s ownership and that all of your use of the Licensed Materials will inure to the benefit of and be on behalf of FVC. You agree that nothing in this Agreement gives you any right, title or interest in the Licensed Materials other than the right to use the Licensed Materials in accordance with this Agreement. You also agree that you will not attack the title of FAMILY VALUE CINEMA to the Licensed Materials or the validity of the Licensed Materials or this Agreement.
d. You agree that the nature and quality of all services provided by you in connection with this Agreement and all related advertising and promotional uses shall conform to high standards of quality and will not impugn the goodwill of FVC or the Licensed Materials. You agree not to use the Licensed Materials in any manner that is disparaging or that otherwise portrays FVC in a negative light.
e. You agree to use the Licensed Materials only in the form and manner and with appropriate legends as provided from time to time by FVC, and not to use any other trademark or service mark in combination with the FAMILY VALUE CINEMA trademark or name.
f. You agree to not use, register or seek to register any trademark, service mark or domain name that contains the words "FamilyValuesCinema.com," "FVC.com," "FamilyValueCinima," “FamilyValueCenema," "Family", “Value” and "Cinema", or any variations or misspelling of them, or is any way confusingly similar to "Family Value Cinema”. If you do, you agree to transfer the registrations, at your expense, to Family Value Cinema at Family Value Cinema’s request and to cooperate by providing any information, signing any documents and providing appropriate authorizations necessary to accomplish the transfer. If you fail to cooperate, you hereby authorize Family Value Cinema to sign appropriate documentation on your behalf in order to effect the transfer.
g. You are only entitled to use the Licensed Materials to the extent that you are a member in good standing of the FVC Affiliate Program. If at any time there is a material breach, we may revoke your license by giving you written notice. If we give you such notice, you must immediately discontinue all use of the Licensed Materials.
h. You grant to us a non-exclusive license, for the term of this Agreement, to utilize your names, titles, and logos, as the same may be amended from time to time to advertise, market, promote, and publicize in any manner our rights hereunder; provided, however, that we shall not be required to so advertise, market, promote, or publicize.
i. FVC retains approval rights over Affiliate's materials and announcements relating to FVC. Included among these rights are advertising, promotional, publicity and clip rights. These rights include FVC's right to reproduce in any manner any media segment, print or media related to Affiliate and/or FVC. Affiliate shall assist FVC in securing any necessary clearances and approvals to exercise the foregoing rights.
j. You agree not to use or display the trademarks of any organization or company listed on our website, or otherwise infringe their intellectual property rights.
4. Exclusivity
Affiliate further agrees to grant FVC exclusivity in the family filmed DVD of the month clubs or other product that may be construed as directly competitive with FVC.
5. Promotion of Affiliation
All Promotions and promotional activities undertaken by Affiliate hereunder to promote FVC shall be made in accordance with all applicable laws and regulations. In addition to the foregoing grant of rights, Affiliate shall promote FVC and its services with the following approved promotional activities:
a. FVC will make available to Affiliate a variety of graphic and textual links ("Links" or "Link"), which, subject to the terms and conditions of this Agreement, may be displayed as often and in as many areas on Affiliate’s site as desired. The Links will serve to identify your site as a member of our Affiliate Program and will establish a link from your site to ours.
b. Affiliate will distribute an initial introductory Promotion to its Members.
c. Web Address: Affiliate shall in a prominent and conspicuous manner, include FVC’s website address, currently, www.familyvaluescinema.com (“FVC Website”) on Affiliate's Promotions as stated above.
d. Website: Affiliate will provide a link to FVC Website on Affiliate's present and future websites via a link, banner advertisement (still or rotating), button link, or similar link in accordance with (5) d. i. below.
i. Website Links: FVC shall provide Affiliate with the graphics and text for such banner advertisements which you may display as often and in as many areas on your site as you desire. It is understood that these links and banner advertisements, will each provide a direct connection from Affiliate's website to the FVC Website and are hereinafter referred to collectively as "Links". Affiliate shall cooperate with FVC to establish and maintain such Links. Affiliate shall not alter, modify or expand any Link without FVC’s prior approval. FVC may monitor Affiliate's website at any time to ensure compliance. In addition, we encourage (but do not require) you to include a Link to the home page of our site.
e. New materials provided by FVC shall be replaced on Affiliate's website within ten (10) days of receipt. You also agree to comply with our requirements for removing Links on a timely basis. Any Links that promote deals or prices with an expiration date or that are time sensitive must be removed from your site upon expiration of the promotion or time period. We will not be required to pay you any commission for sales made pursuant to a Link referencing an expired promotion. Failure to remove expired Links may lead to your termination as an Affiliate.
f. Other Media/ Materials: In addition to promoting FVC to Affiliate's Members, where appropriate, Affiliate will promote FVC during Affiliate's media appearances such as via television, radio, print, speaking engagements, lectures, events, and so forth and on the accompanying materials.
g. Publicity: You shall not create, publish, distribute, or permit any written material that makes reference to FVC without first submitting such material to us and receiving our written consent.
h. We will make available to you a small graphic image that identifies your site as an FVC Affiliate Program participant. You must display this logo or the phrase "In association with Family Values Cinema" somewhere on your site. We may modify the text or graphic image of this notice from time to time.
i. You may not in any manner misrepresent or embellish the relationship between FVC and you, or express or imply any relationship or affiliation between FVC and you or any other person or entity except as expressly permitted by this Agreement or first receiving FVC’s written consent.
j. Affiliate Identification: All Affiliates will be required to display a graphic (which we will provide) on their website indicating their Affiliate relationship to Family Values Cinema.
k. Audio Bytes: When available and reasonably requested, Affiliate will record clips, including audio bytes for use by Affiliate and FVC on website, advertisements and other media.
l. Customer Feedback: When reasonably requested, Affiliate will provide FVC with feedback from Affiliate's Members relating to FVC, its services and/or enable FVC to survey Affiliate's Members. When reasonably requested, Affiliate will make records available to FVC that verify the recipients consent to receive the e-mails and mailings set forth herein available for FVC's review and inspection subject to the confidentiality provisions.
m. Cross Promotion: FVC may, but is under no obligation to, promote Affiliate's organization (including services, products, etc.) to FVC’s membership and provide advertising (banner) space and hotlinks available to Affiliate's organization via FVC’s website. All materials provided by Affiliate to FVC for posting on FVC Website or for dissemination shall be deemed approved and clear for use when provided.
6. Name & Likeness
Further to paragraph 5(j) above, Affiliate agrees that FVC may utilize Affiliate's approved name and likeness (including audio bytes) in connection with press clips, FVC's website, product packaging and all other FVC marketing and promotional materials. The following uses and variations thereof are hereby approved for all FVC materials: "Affiliate encourages membership in the the Family Values Cinema DVD of the Month Club."
7. Performance
Affiliate understands that Affiliate's cooperation and Promotional efforts are material inducements of this Agreement. Affiliate will cooperate with planning and executing FVC's marketing strategies. Affiliate may not broker or sublicense any of the advertising or other materials (including Links) to any third party without FVC's written consent. It is expressly agreed that affiliate may only send e-mails and promotional material relating to FVC to people who have opted in to or voluntarily joined affiliate's e-mail list or lists or other methods of communication. Affilliates may not send or distribute unsolicited communications (e.g. "spam" e-mail advertising, mailing, and telephone calls) relating to FVC or any of its products or services. Any breach by Affiliate of the foregoing performance obligations will result in the immediate termination of this agreement by FVC without notice.
8. FVC Responsibilities
We will be responsible for providing the information necessary to allow you to make appropriate Links from your site to our site. We will be solely responsible for: (i) processing every order placed by a customer following a special Link from your site; (ii) tracking the volume and amount of sales generated by your site; and (iii) providing information to FVC Affiliate Program members regarding sales statistics. Our order processing obligations will include order entry, payment processing, shipping, cancellations, returns and related customer service. Sales transaction data will be provided once daily, and reflects data through the previous day; once a month, all returns/refunds/cancels will be provided, deducted from the overall sales transacted for the Affiliate Program member.
9. Consideration
In consideration for the rights and privileges granted hereunder, the sufficiency of which is hereby acknowledged, FVC shall pay Affiliate a commission fee for each person who has become an FVC Member as a result of clicking through Affiliate’s website or referring to the Affiliate on their membership application.
a. Commission: FVC shall pay Affiliate a commission for Memberships sold through the Affiliate's referrals, in the amount of equal to 10% of the monthly subscription fee per paid member per month beginning in month 2 and thereafter, until the referred FVC Member cancels their subscription or this Agreement is terminated. For purposes of clarity, Affiliate will only receive the commission for members who join FVC either via a link on Affiliate's website or who refer to Affiliate on the FVC's Member sign up sheet. In the event an FVC Member refers to two (2) or more affiliates, the first affiliate listed on the sign up sheet shall be deemed to receive the commission. FVC reserves the right at any time to reduce or increase the commission amount paid to Affiliate for any reason which may include, increased DVD costs, operational costs, market evaluation and/or the increase/decrease of membership fees. FVC shall notify Affiliate if such increase or decrease will go in effect.
10. Commission Payments
Unless otherwise provided, FVC shall provide a detailed statement along with Affiliate's payment for commissions owed, if any, on a quarterly basis (less any taxes required to be withheld under applicable law). Affiliate will also receive a statement at the end of the year. Such commission checks and statements of activity will be sent approximately fifteen (15) business days after the end of any calendar month in which accumulated earned commissions exceed seventy-five dollars ($75).
a. Deferment. In the event Affiliate's accrued commissions for a particular quarter are less than seventy-five dollars ($75), FVC reserves the right to defer such amount and pay Affiliate during a subsequent period in which the commissions owed are seventy-five dollars ($75) or more. No interest shall accrue on such deferred amount.
b. Tracking. FVC will track sales of Affiliate Memberships from the FVC website, bounce backs, in-bound and out-bound telemarketing efforts. Upon FVC's acceptance of Affiliate's application, Affiliate will receive a secured password to access certain sales reports and traffic information. FVC will not be responsible for any delays, mistakes or errors resulting from the tracking software. All tracking information will be deemed confidential.
c. Returns. In accordance with customary business practices, FVC may withhold future payments with an amount equal to the commissions paid and/or payable in circumstances of product returns, duplicate entry or other clear error, or non-receipt of payment from, or refund of payment to, the FVC member by FVC.
11. W-9 Information
Affiliate will provide FVC with a completed W-9 form attached hereto as www.irs.gov/pub/irs-pdf/fw9.pdf within 5 days from when this Agreement is submitted. Notwithstanding anything in this Agreement to the contrary, if Affiliate fails to deliver the completed W-9, FVC may withhold any and all payments until such time the form is received by FVC in order to comply with IRS regulations.
12. Member Policies
Customers who buy products from the FVC web site through the Affiliate Program will be deemed to be customers of FVC. Accordingly, all of our rules, policies, and operating procedures concerning customer orders, customer service, privacy, and FVC product sales will apply to those customers.
13. Pricing & Product Policies
We may change our policies and operating procedures at any time. For example, we will determine the prices to be charged for products sold by the FVC web site under the Affiliate Program in accordance with our own pricing policies. Prices and availability of products on the FVC web site may vary from time to time, and the availability and price of any particular product cannot be guaranteed. YOU MAY NOT PLACE INDIVIDUAL PRODUCT PRICING OR LOGOS, IMAGES, OR DESCRIPTIONS RELATED TO PRODUCTS ON YOUR SITE WITHOUT OUR EXPRESS PRIOR WRITTEN PERMISSION.
14. Responsibility for Your Site
- You will be solely responsible for the development, operation, and maintenance of your site and for all materials that appear on your site. For example, you will be solely responsible for:
- the technical operation of your site and all related equipment
- creating and posting Product descriptions on your site and linking those descriptions to the FVC site catalog
- the accuracy and appropriateness of materials posted on your site (including, among other things, all Product-related materials)
- ensuring that materials posted on your site do not violate or infringe upon the rights of any third party (including, for example, copyrights, trademarks, privacy, or other personal or proprietary rights)
- ensuring that materials posted on your site are not libelous or otherwise illegal
- ensuring that your site accurately and adequately discloses, either through a privacy policy or otherwise, how you collect, use, store, and disclose data collected from visitors, including, where applicable, that third parties (including advertisers) may serve content and/or advertisements and collect information directly from visitors and may place or recognize cookies on visitors' browsers.
We disclaim all liability for these matters.
15. Indemnity
Affiliate will defend, indemnify, save and hold harmless FVC, it's successors, licensees and assigns and their respective officers, agents, affiliates, employees, from any and all claims, damages, costs, including, reasonable attorney's fees,
judgments, penalties, expenses and other losses arising from a breach of Affiliate's duties hereunder and/ or relating to the development, operation, maintenance and/or content of Affiliate's website, materials, products and services. FVC shall indemnify Affiliate
from any claims in the manner set forth above arising in relation to FVC's obligations hereunder. It is understood that FVC shall not be liable for mistakes, errors or delays arising from FVC's third party tracking software.
a. Defense: Any party seeking indemnification shall promptly notify the other party in writing of the claim and shall reasonably cooperate with the indemnifying party with respect to such claim.
16. Notices
Affiliate shall provide FVC with current contact information throughout the term of this Agreement. Notices and other communications to Affiliate, pursuant to this Agreement, shall be posted on the secured affiliate network site or sent via email to the email address provided to FVC and shall be deemed effective upon posting or emailing, as applicable. Any notice or communications to FVC will be sent to info@familyvaluescinema.com and deemed effective one (1) day after e-mailing.
17. Approvals
All approvals to be given hereunder will be given within ten (10) business days after receiving the request or materials for review. If a response is not given within this time, approval shall not be deemed to have been given.
18. Compliance with Laws
As a condition to your participation in the FVC Affiliate Program, you agree that while you are an FVC Affiliate you will comply with all laws, ordinances, rules, regulations, orders, licenses, permits, judgments, decisions or other requirements of any governmental authority that has jurisdiction over you, whether those laws, etc. are now in effect or later come into effect during the time you are an FVC Affiliate Program participant. Without limiting the foregoing obligation, you agree that as a condition of your participation in the FVC Affiliate Program you will comply with all applicable laws (federal, state or otherwise) that govern marketing email, including without limitation, the CAN-SPAM Act of 2003 and all other anti-spam laws.
19. Amendment/ Modification
This Agreement and FVC's Terms of Use may be amended at any time by FVC and Affiliate should periodically refer to FVC's posting of this Agreement and the Terms of Use for updates. Modifications may include, for example, changes in the scope of available commissions, commission schedules, payment procedures, and Program rules. YOUR CONTINUED PARTICIPATION IN THE FVC AFFILIATE PROGRAM FOLLOWING OUR POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON THE FVC WEB SITE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.
20. Termination of the Agreement
Either party may terminate this Agreement without notice. Upon termination, all rights under this Agreement shall cease and FVC shall have no further obligations to Affiliate. Upon receiving notice of termination, Affiliate shall promptly remove any Links or other references to FVC on Affiliate's website, and return or destroy any confidential information, FVC artwork or any other materials. If this Agreement is
terminated because of a material breach, Affiliate shall not receive any additional payments, including for commissions earned during the month prior to the date of termination. If this Agreement is terminated for any other reason, Affiliate will only receive commissions earned during the Term of the Agreement. For the avoidance of doubt, Affiliate shall not continue to receive fees even if FVC Members who subscribed via Affiliate remain FVC Members after termination. FVC may withhold final payment to ensure that the terms of this paragraph 20 are complied with. You are eligible to earn commissions only on sales of Qualifying Products that occur during the term, and commissions 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.
21. Governing Law
This Agreement will be governed by the laws of the United States and the state of California, 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.
22. 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 Ventura County, California, 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 California (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.
23. Relationship of Parties
FVC and Affiliate are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. Affiliate will have no authority to make or accept any offers or representations on FVC’s behalf. The parties shall not make any statement which may cause confusion as to the relationship of FVC and Affiliate.
24. 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 FVC Affiliate 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 FVC Affiliate Program will not exceed the total commissions paid or payable to you under this Agreement.
25. Assignment
FVC shall have the right to assign this Agreement.
26. Headings
The captions herein are inserted for reference only and in no way define, limit or describe the scope of this Agreement or interfere with the provisions.
27. Disclaimers
We make no express or implied warranties or representations with respect to the FVC Affiliate Program or any products sold through the FVC Affiliate 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 the FVC.com site will be uninterrupted or error-free, and we will not be liable for the consequences of any interruptions or errors.
28. Confidential & Proprietary Information
Neither party may directly or indirectly disclose to the public or to the trade any of the terms of this Agreement without the prior written consent of the other. Upon approval by FVC, you may issue publicity relating to FVC so long as such publicity does not contain any confidential or proprietary information. Affiliate may not at any time during the Term refer to FVC in any derogatory or knowingly false manner. If at any time FVC is provided with access to your mailing lists or vice versa such information shall be deemed confidential and shall not be disclosed to any third parties without the prior written consent of the other party. You agree that all customer information related to the FVC Affiliate Program belongs to FVC. You agree to protect as secret all FVC Affiliate Program customer information and Affiliate Program business and sales information related to us, you, or our suppliers, including, without limitation, information relating to sale pricing, promotions and weekly specials (collectively, "Information"), not to disclose Information to any third parties, and not to use Information for any purpose other than the purposes of this Agreement. You agree to protect Information using methods at least as protective as those you use to protect your own information of a confidential nature, but in no event, using less than a standard of reasonable care.
29. 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.
30. Authority to Enter
Each party represents that it has the authority and capacity to enter into this Agreement.
31. Entire Agreement
This Agreement contains the entire understanding between the parties and supersedes all prior oral and written understandings of the parties hereto relating to the subject matter herein.
AFFILIATE'S SUBMISSION OF THIS APPLICATION SHALL CONSTITUTE
AFFILIATE'S AGREEMENT TO BE BOUND BY THIS AGREEMENT.
Effective as of May 15, 2008.
|
