Affiliate Program Agreement & Affiliate Partner Program Agreement
THIS AFFILIATE AGREEMENT (
"Agreement") contains the terms and conditions applicable to an
individual's or an organization's participation in any Festival Network
Affiliate Program ("AP") and is made and entered into by and
between such individual or organization and Festival Network
(FestivalNet). As used in this Agreement: "we", "us" or "our" refers
to Festival Network; "you" or "your" or "participant"
refers to the "AP" Affiliate; "our web site" refers to the
Festival Network web site, festivalnet.com;
"your web site" refers to the World Wide Web site or e-mail message
from which you will link to our web site; and "dollars" or "$" shall
mean United States dollars.
After receiving your e-mail notification and Affiliate Number ("AN"),
you are accepted into the "AP". We reserve the right to cancel your
participation if your web site contains material that we, in our sole
discretion, deem objectionable, or is not, in our opinion, consistent
with the high standards of quality associated with Festival Network
and the services that we offer our customers. You will be
responsible for any expenses you may incur in connection with your
participation in the "AP".
2. LINKING TO OUR SITE and TRACKING:
Once enrolled into the "AP", we will provide you with a unique URL (the
"Tracking URL") containing your "AN", which you will use on your web
site or in e-mail messages to permit users to link to our web site . We
will also provide you with the URL from which you may link a graphic
image. We will track individual users who access our site through the
Tracking URL by loading your Affiliate Number into each Referral's
browser by means of a cookie. We will be unable (and will have no
browsers do not support cookies, whose cookies are unusable (such as if
the cookie file is edited or deleted), or who join FestivalNet using a browser
that does not have the cookie containing your "AN". If we receive
Referrals for the same user from multiple Participants, the first
Participant from whom we receive a Referral will be credited. Each
cookie set by way of the Tracking URL will automatically expire one
year from the date it was set. Orders from a Referral any time during
the one year period will be credited to your "AN". It is your
responsibility to ensure that your Tracking URL is used on your web
pages and in e-mail messages.
3. RESPONSIBILITY FOR WEB SITE AND E-MAIL MESSAGES:
You are solely responsible for all content and activities relating to
your web site or e-mail messages sent containing your Tracking URL. We
do not condone e-mail "spamming" and will cancel your participation in
the "AP" if you participate in this activity.
4. TRADEMARK LICENSE:
You agree to display the Festival Network logo (the "Logo") on
the home page, or other pages of your web site, or in e-mail messages,
and we hereby grant you a non-exclusive license to use the Logo in such
manner and to otherwise display the Logo and the FestivalNet trademark and
name. We may terminate the foregoing license if, in our sole
discretion, your use of our name or logo does not conform to our
standards. You agree that title to and ownership of our name and logo
shall remain with us at all times. You shall use these exactly in the
form provided by us to you. You shall not take any action inconsistent
with our ownership of or goodwill associated with our name and logo.
You agree that any benefits and goodwill arising from your use of our
name and logo shall inure solely to our benefit.
5. AFFILIATE FEES:
For so long as you are a Participant in the "AP", we will pay you the
applicable fees, based on the terms of your program, for Referral
you. Affiliate Fees shall be paid quarterly by us within thirty (30)
following the end of the quarter in which the "AP" Participant had
orders. All payments will be in US dollars and drawn on a US bank.
6. AGREEMENT CANCELLATION:
Either party may cancel or terminate this Agreement at any time and for
any reason by written notice to the other party. Upon termination, all
licenses hereunder shall terminate and you shall discontinue any and
all uses of the FestivalNet Logo and name and Tracking URL.
7. AGREEMENT MODIFICATIONS:
We may modify any of the terms of this Agreement (including and without
limitation, the Affiliate Fee amount) by providing written notice
and/or posting notice on the FestivalNet web site (http://festivalnet.com). You agree to visit said web site at least twice
per year for as long as you participate in the "AP". Your continued
participation in the "AP" after any such notice shall be deemed
acceptance of the revised terms.
8. WARRANTY DISCLAIMER:
WE MAKE NO WARRANTIES OR REPRESENTATIONS OF ANY KIND WITH REGARD TO OUR
SERVICES, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, INCLUDING
WITHOUT LIMITATION ANY WARRANTIES OF FITNESS FOR A PARTICULAR USE OR
PURPOSE, NON-INFRINGEMENT, OR ARISING OUT OF THE COURSE OF PERFORMANCE,
OR USAGE OF TRADE. WE DO NOT WARRANT THAT OUR WEB SITE OR SERVICES WILL
BE ERROR FREE, FUNCTION WITHOUT INTERRUPTION OR THAT ANY ERRORS WILL BE
CORRECTED. If as a matter of law we may not disclaim any such warranty,
the scope and duration shall be the minimum permissible under
We shall indemnify and hold harmless the "AP" Participant against all
claims, losses, damages, liabilities, costs and expenses, including
reasonable attorneys' fees, which the Participant may incur as a result
of any claims relating to the infringement by our name or logo or
content of any third party copyright, trademark, trade secret or other
proprietary right, of use of or access to our web site or any services
provided by or through us.
10. LIMITATIONS ON LIABILITY:
WE WILL HAVE NO LIABILITY OF ANY SORT ARISING FROM ANY INTERRUPTIONS TO
OR ERRORS IN OUR SITE OR SERVICES. WE SHALL HAVE NO LIABILITY FOR ANY
INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR ANY LOSS OF
REVENUE OR PROFITS ARISING UNDER OR WITH RESPECT TO THIS AGREEMENT OR
THE "AP", EVEN IF WE WERE ADVISED OR SHOULD HAVE KNOWN OF THE
POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF
ESSENTIAL PURPOSE OF ANY REMEDY. FURTHER, OUR AGGREGATE LIABILITY
ARISING UNDER OR WITH RESPECT TO THIS AGREEMENT OR THE "AP" SHALL IN NO
EVENT EXCEED THE TOTAL AFFILIATE FEES PAID OR PAYABLE BY US TO YOU
UNDER THIS AGREEMENT.
11. ACCEPTANCE OF THE TERMS and NONEXCLUSIVITY:
By posting your Tracking URL and "AN" on a web site or in an e-mail
message you signify your acceptance of the terms of the "AP" Agreement
and acknowledge that you have read and reviewed this Agreement in its
entirety and agree to all its terms and conditions. This is a
nonexclusive arrangement, and nothing in this Agreement will be
construed to prevent either party from entering into agreements with
third parties that are similar to this Agreement.
12. GENERAL PROVISIONS:
12.1 Governing Law. This Agreement will be governed and construed in
accordance with the laws of the State of North Carolina as if applied
to an agreement made, entered into and performed entirely in the State
of North Carolina. Both parties hereby submit to the personal
jurisdiction of the Federal and State courts located in Buncombe
County, North Carolina and further agree that any cause of action
arising under this Agreement shall be brought in such courts.
Severability. If any provision
herein is held to be invalid or unenforceable for any reason, the
remaining provisions will continue in full force without being impaired
or invalidated in any way.
Independent Contractors. These
parties are operating as independent contractors, and no agency,
partnership, joint venture or employee-employer relationship is
intended or created by this Agreement. You shall make no warranties or
representations on our behalf.
Notice. Any notices hereunder
shall be given to Festival Network at P.O. Box 18839, Asheville,
NC 28814. Notices to you will be at the address specified upon your
enrolling, or at such other address as each party shall specify in
writing from time-to-time. Notice shall be deemed given: upon personal
delivery; if sent by fax or e-mail, upon confirmation of receipt; or if
sent by certified or registered mail, postage prepaid, 5 days after the
date of mailing.
Entire Agreement; Waiver. This
Agreement sets forth the entire understanding and agreement of the
parties, and supersedes any and all oral or written agreements or
understanding between the parties, as to the subject matter hereof. The
waiver of a breach of any provision of this Agreement will not operate
or be interpreted as a waiver of any other or subsequent breach.