Please read the following Affiliate Operating Agreement in its entirety. After reading, select the "I Agree" link at the bottom of the page if you agree to the terms and wish to continue the application process.
This Agreement contains the complete terms and conditions that apply to your participation as an Affiliate in the Affiliate Network of HomeGrownMusic.net ("HGMN"), and the establishment of links from your affiliate web site to our web site, "HomeGrownMusic.net."
1. Enrollment in the Affiliate Network
To begin the enrollment process, you will submit a complete Affiliate Network application via our site. We will evaluate your application and will notify you of your acceptance or rejection in a timely manner. We may reject your application if we determine (in our sole discretion) that your site is unsuitable for the Affiliate Network for any reason, including, but not limited to, inclusion of content that is in any way unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically, or otherwise objectionable.
2. Promotion of Our Affiliate Relationship
a. As an Affiliate Site, you may utilize HGMN's affiliate web site which includes a variety of graphic and textual links (each of these links sometimes being referred to herein as "Links" or, individually, as a "Link"), which, subject to the terms and conditions hereof, you may display as often and in as many areas on your site as you desire. The Links will serve to identify your site as a member of our Affiliate Network and will establish a link from your site to ours.
b. Agreements Regarding Links: In utilizing the Links, you agree that you will cooperate fully with us in order to establish and maintain such Links and/or a music store, as the case may be. You also agree that you will display in your site only those graphic or textual images (indicating a Link) that are provided by us, and you will substitute such images with any new images provided by us from time to time throughout the term of this Agreement. All Affiliate Sites shall display such graphic and/or textual images prominently in relevant sections of their site. All Links may be modified and/or expanded from time to time throughout the term of this Agreement pursuant to the mutual agreement of the parties hereto. Each Link connecting users of your site to the pertinent area of our site will in no way alter the look, feel, or functionality of our site.
3. Our Responsibilities
We will be responsible for providing all information necessary to allow you to make appropriate Links from your site to our site. We will be solely responsible for processing every order placed by a customer following a special Link from your site, for tracking the volume and amount of sales generated by your site. We will be responsible for order entry, payment processing, shipping, cancellations, returns, and related customer service.
4. Other Responsibilities and Opportunities of Affiliate Sites
a. If you qualify and agree to participate as an Affiliate Site, you shall display Links prominently throughout your site as you see fit and with our consent.
b. Contests and Promotions: As an Affiliate Site, you will be entitled to participate and promote on your site any sweepstakes, contests, and special promotions we may offer, and in connection therewith, we shall make such contests and promotions available to users of your site. In addition, you will be entitled to earn commissions as set forth in sections 6 and 7 below.
c. Compliance with the Agreement: We have the right in our sole discretion to monitor your site at any time and from time to time to determine if you are in compliance with the terms of this Agreement.
5. Commission Determination
Only HGMN Products that are (i) sold by us, (ii) purchased by users linking to our site from your site pursuant to a Link ("Linked Users"), (iii) shipped by us, and (iv) for which we have received full payment will qualify for a commission (each, a "Qualifying Purchase"). Commission rates will be based on the aggregate amount actually paid to us for Qualifying Purchases of the HGMN Products, excluding amounts collected by us for sales taxes, duties, gift-wrapping, shipping, handling, and similar charges, amounts due to credit card fraud and bad debt, and credits for returned goods ("Net Sales"). All available items on our site will be included in the computation of Net Sales. Commission rates are as follows:
i. Products: Commission rates on products sold by HGMN will be equal to five percent (5%) of Net Sales for Qualifying Purchases of Products.
ii. Gift certificates: . Commission rates on gift certificates will be equal to five percent (5%) of Net Sales for Qualifying Purchases of gift certificates.
6. Commission Payment
a. When the total commissions due to you (based on Section 5 above) exceed twenty-five dollars ($25.00) for all products and gift certificates, we will send a commission check for the applicable commission (less any taxes required to be withheld under applicable law) and a statement of activity to you. Such commission checks and statements of activity will be sent approximately thirty (30) days after the end of each three-month anniversary of the date hereof.
b. You may not purchase products during sessions initiated through the links on your site for your own use, for resale or commercial use of any kind. This includes orders for customers or on behalf of customers or orders for products to be used by you or your friends, relatives or associates in any manner. Such purchases may result (in our sole discretion) in the withholding of referral fees or the termination of this Agreement. Products that are eligible to earn referral fees under the rules set forth above are referred to as "Qualifying Purchases."
c. In addition, you may not: (a) directly or indirectly offer any person or entity any consideration or incentive (including, without limitation, payment of money (including any rebate), or granting of any discount or other benefit) for using Links on your site to access our site (e.g., by implementing any "rewards" program for persons or entities who use Links on your site to access our site); or (b) post any Links on any Web site or other platform that is accessible through any Internet Access Appliance. If we determine, in our sole discretion, that you have offered any person or entity any such consideration or incentive, or posted Links on any such Web site or platform, we may (without limiting any other rights or remedies available to us) withhold any referral fees otherwise payable to you under this Agreement and/or terminate this Agreement.
7. Reports of Sales
HGMN will send an email to you each time a product is ordered from their site. At present this is your only method of tracking your sales, and your are responsible for keeping such emails for such purpose. In the future, you may be given a password and have the ability to enter a password-protected site to receive your sales statistics on a daily basis.
8. Policies and Pricing
Customers who buy HGMN Products through the Affiliate Network will be deemed to be customers of HGMN. Accordingly, all of our rules, policies, and operating procedures concerning customer orders, customer service, and HGMN Product sales will apply to those customers. We may change our policies and operating procedures at any time. For example, we will determine the prices to be charged for HGMN Products sold under the Affiliate Network in accordance with our own pricing policies. Prices and availability of HGMN Products may vary from time to time. Because price changes may affect products that you already have listed on your site, you may not include price information in your product descriptions. We will use commercially reasonable efforts to present accurate information, but we cannot guarantee the availability or price of any particular product.
You shall not create, publish, distribute, or permit any written material that makes reference to us without first submitting such material to us and receiving our written consent, which we agree shall not be unreasonably withheld.
10. Licenses and Use of the HGMN Logos and Trademarks
a. 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 HGMN TRADEMARK AND LOGO AND SIMILAR IDENTIFYING MATERIAL RELATING TO US (BUT ONLY IN THE FORM(S) THAT THEY APPEAR ON OUR AFFILIATE SITE OR AS WE OTHERWISE PRESENT THEM TO YOU) (COLLECTIVELY, THE "LICENSED MATERIALS"), FOR THE SOLE PURPOSE OF LINKING YOUR SITE TO OUR SITE, WHERE YOUR USERS CAN PURCHASE HGMN PRODUCTS. YOU MAY NOT ALTER, MODIFY, OR CHANGE THE LICENSED MATERIALS IN ANY WAY. YOU ARE ONLY ENTITLED TO USE THE LICENSED MATERIALS TO THE EXTENT THAT YOU ARE A MEMBER IN GOOD STANDING OF THE AFFILIATE NETWORK.
b. You shall not make any specific use of any Licensed Materials for purposes other than selling HGMN Products on your site for HGMN, without first submitting a sample of such to us and obtaining the prior written consent of your HGMN account executive, which consent shall not be unreasonably withheld. You agree not to use the Licensed Materials in any manner that is disparaging or that otherwise portrays us in a negative light. We reserve all of our rights in the Licensed Materials and of our other proprietary rights. We may revoke your license at any time, by giving you written notice.
c. You grant to us a non-exclusive license to utilize your names, titles, and logos, as the same may be amended from time to time (the "Affiliate Trademarks"), 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. This license shall terminate upon the effective date of the expiration or termination of this Agreement.
11. Obligations Regarding Your Site
a. You will be solely responsible for the development, operation, and maintenance of your site and for all materials that appear on your site. Such responsibilities include, but are not limited to, 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 store; the accuracy and propriety of materials posted on your site (including, but not limited to, all HGMN Product-related materials); 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.
b. We disclaim all liability for all such matters. Further, you will indemnify and hold us harmless from all claims, damages, and expenses (including, without limitation, attorneys' fees) relating to the development, operation, maintenance, and contents of your site.
c. You hereby agree that your site will not, in any way, copy or resemble the look and feel of any HGMN site nor will you create the impression that your site is our site or is a part of our site, nor will you frame any page on the HGMN Site being viewed by a user of your site who links to the HGMN Site through a Link. Linking to our store through a frame compromises security features and is strictly prohibited.
d. You also hereby agree that your site will not contain any content of our site or any materials which are proprietary to HGMN, except (i) with our prior permission, or (ii) materials which are obtained by you via the HGMN affiliate site in accordance with the provisions hereof or the policies or instructions thereon. You further hereby agree that (i) your domain name does not and will not contain the words "HomeGrown," "Leeway," "Kind Music," and/or "Home Grown" "HGMN" or any variation thereof (collectively, the "HGMN marks"), and (ii) that you will not purchase or otherwise contract with a third party to exploit any of the HGMN marks for the purpose of causing the Affiliate site to appear as a search result or for any other reason.
e. Identifying Yourself as an Associate: We will make available to you a small graphic image that identifies your site as a program participant. You must display this logo or the phrase "In association with the Home Grown Music Network or HomeGrownMusic.net" somewhere on your site. We may modify the text or graphic image of this notice from time to time. In addition, we encourage (but do not require) you to include a Link on your site to the HomeGrownMusic.net home page at http://www.HomeGrownMusic.net . You may not make any press release with respect to this Agreement or your participation in the Program without our prior written consent, which may be given or withheld in our sole discretion. In addition, you may not in any manner misrepresent or embellish the relationship between us and you, or express or imply any relationship or affiliation between us and you or any other person or entity except as expressly permitted by this Agreement (including by expressing or implying that Home Grown Music Network supports, sponsors, endorses or contributes money to any charity or other cause).
12. Term of the Agreement
The term of this Agreement will begin upon our acceptance of your Affiliate Network application and will end when terminated by either party. Either you or we may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination. Written notice may be made via email. You are only eligible to earn commission on sales occurring during the term, and commissions earned through the date of termination will remain payable only if the related HGMN Product orders are not cancelled or returned. We may withhold your final payment for a reasonable time to ensure that the correct amount is paid.
We may modify any of the terms and conditions contained in this Agreement at any time in our sole discretion. You will be notified by email and a change notice will be posted on our site. Modifications may include, but are not limited to, changes in the scope of available commissions, commission schedules, payment procedures, and Affiliate Network rules. If any modification is unacceptable to you, your only recourse is to terminate this agreement. Your continued participation in the Affiliate Network following our posting of a change notice or new agreement on our site will constitute binding acceptance of the change.
14. Relationship of Parties
You and HGMN are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. You will have no authority to make or accept any offers or representations on our behalf. You agree and represent that will not make any statement, whether on your site or otherwise, that reasonably would contradict anything in this Section.
We make no express or implied warranties or representations with respect to the Affiliate Network or any HGMN Products sold through the Affiliate Network (including, without limitation, warranties of fitness, merchantability, non-infringement, or any implied warranties arising out of 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.
16. Representations and Warranties
You hereby represent and warrant to us as follows:
a. This Agreement has been duly and validly executed and delivered by you and constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms.
b. The execution, delivery, and performance by you of this Agreement and the consummation by you of the transactions contemplated hereby will not, with or without the giving of notice, the lapse of time, or both, conflict with or violate (i) any provision of law, rule, or regulation to which you are subject, (ii) any order, judgment, or decree applicable to you or binding upon your assets or properties, (iii) any provision of your by-laws or certificate of incorporation, or (iv) any agreement or other instrument applicable to you or binding upon your assets or properties.
c. You are the sole and exclusive owner of the Affiliate Trademarks and have the right and power to grant to us the license to use your trademarks in the manner contemplated herein, and such grant does not and will not (i) breach, conflict with, or constitute a default under any agreement or other instrument applicable to you or binding upon your assets or properties, or (ii) infringe upon any trademark, trade name, service mark, copyright, or other proprietary right of any other person or entity.
d. No consent, approval, or authorization of, or exemption by, or filing with, any governmental authority or any third party is required to be obtained or made by you in connection with the execution, delivery, and performance of this Agreement or the taking by you of any other action contemplated hereby.
e. There is no pending or, to the best of your knowledge, threatened claim, action, or proceeding against you, or any affiliate of yours, with respect to the execution, delivery, or consummation of this Agreement, or with respect to your trademarks, and, to the best of your knowledge, there is no basis for any such claim, action, or proceeding.
f. You are an adult of at least 18 years of age.
Except as otherwise provided in this Agreement or with the consent of the other party hereto, each of the parties hereto agrees that all information including, without limitation, the terms of this Agreement, business and financial information, customer and vendor lists, and pricing and sales information, concerning us or you, respectively, or any of our Affiliates provided by or on behalf of any of them shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by such party for its own business purposes or for any other purpose except and solely to the extent that any such information is generally known or available to the public through a source or sources other than such party hereto or its affiliates. Notwithstanding the foregoing, each party is hereby authorized to deliver a copy of any such information (a) to any person pursuant to a subpoena issued by any court or administrative agency, (b) to its accountants, attorneys, or other agents on a confidential basis, and (c) otherwise as required by applicable law, rule, regulation, or legal process including, without limitation, the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder, and the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
18. 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 NETWORK, 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 NETWORK WILL NOT EXCEED THE TOTAL COMMISSIONS PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT.
You hereby agree to indemnify and hold harmless HGMN and its subsidiaries and affiliates, and their directors, officers, employees, agents, shareholders, partners, members, and other owners, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' fees) (any or all of the foregoing hereinafter referred to as "Losses") insofar as such Losses (or actions in respect thereof) arise out of or are based on (i) any claim that our use of the Affiliate Trademarks infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party, (ii) any misrepresentation of a representation or warranty or breach of a covenant and agreement made by you herein, or (iii) any claim related to your site, including, without limitation, content therein not attributable to us.
20. 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 AFFILIATE NETWORK AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.
21. Governing Law
This Agreement will be governed by the laws of the United States and the State of North Carolina, without reference to rules governing choice of laws. Any action relating to this Agreement must be brought in the federal or state courts located in Pitt County, North Carolina, or, at the option and if so requested by HGMN, in any court of law located in a county of any state where HGMN has its principle place of business, and you, and you irrevocably consent to the jurisdiction of such courts. You agree to take necessary actions to effectuate the terms of this section, including, but not limited to, dismissing any action without prejudice filed outside the terms of this section and re-filing the same such that it complies with this section. 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 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 a provision or any other provision of this Agreement.