By signing up for the Music Supervisor Rebate Program (MSRP) And Music Supervisor Referral Program (MSRPII) you may be entitle to 5% cash back on music that you are licensing through MSRPO. If you refer a music supervisor and you have signed up and been approved for the MSRP and MSRPII program you may be entitled to a 2% commission on music licensed by music supervisors you have referred.
Prior to being accepted into MSRP and MSRPII you must agree to the terms and conditions set forth and fax back to us IRS Form W9.
This Affiliate Agreement ("Agreement") is made between Music Supervisor, Inc. ("MSPRO") and the entity or person who applied to become an affiliate of MSPRO and who MSPRO accepted to be an affiliate ("Affiliate").
Now, therefore, the parties agree as follows:
1. Offers and Engagements.
1.1. In its discretion, MSPRO may offer to pay Affiliates a specified commission on Qualifying Transactions (as defined below) completed as a result of a Music Supervisor (“Client”) (as defined below) making a transaction generated by an Affiliate using the specific URL provided by MSPRO for such link (the "URL Code") and through which a client purchases music and is identified by a unique code generated by a URL provided by MSPRO.
1.2. If an Offer is accepted by Affiliate and such acceptance is agreed to and confirmed by MSPRO, all in accordance with MSPRO’s terms and conditions an "Engagement" is formed. Each Engagement shall be governed by the terms and conditions of this Agreement.
1.3 At any time prior to Affiliate providing a Qualifying Link, MSPRO may with or without notice (a) change, suspend or discontinue any aspect of an Offer or an Engagement.
2.1. Affiliate will use the URL Code specified in the Engagement. How the Affiliates shall use URL Code shall comply with any requirements specified herein, but otherwise will be in the discretion of Affiliate. MSPRO may remove, alter, or modify any URL Code for any Offer at any time in its sole discretion. Affiliate agrees to promptly update any affected URL Code. Affiliate shall not, and shall not permit or assist any other party to, modify all or any part of any URL Code or make copies of all or part of any URL Code, except as may be expressly and clearly permitted by this Agreement.
2.2. Affiliate agrees not to make any representations, warranties or other statements concerning MSPRO, MSPRO's sites, any of MSPRO's products or services, or MSPRO's site policies, except as expressly authorized in a specific Engagement.
2.3. Affiliate is responsible for notifying MSPRO of any malfunctioning URL Code or other problems with Affiliate's participation in the Engagement.
2.4. Clents who click through to MSPRO's site through a Qualifying URL Code shall experience MSPRO's site exactly as presented by MSPRO. Without limiting the foregoing, Affiliate shall not "frame" users' access of MSPRO's site in any manner, including without limitation, with advertisements, branding or other material. Additionally, Affiliate shall not transmit any so-called "interstitials," "ParasiteWare™," "Parasitic Marketing," "Shopping Assistance Application," "Toolbar Installations/Add ons," "Shopping Wallets" or "deceptive pop ups/unders" to Consumers from the time the Consumer clicks on a Qualifying Link until such time as the Consumer has fully exited MSPRO's site (i.e., no page from MSPRO's site or any MSPRO content or branding is visible on the Consumer's screen).
As used herein a. "ParasiteWare™" and "Parasitic Marketing" shall mean an application that (a) through accidental or direct intent causes the overwriting of affiliate and non affiliate commission tracking cookies through any other means than a customer initiated click on a Qualifying Link on a web page or email; (b) intercepts searches to redirect traffic through an installed software, thereby causing, pop ups, commission tracking cookies to be put in place or other commission tracking cookies to be overwritten where a user would under normal circumstances have arrived at the same destination through the results given by the search (search engines being, but not limited to, Google, MSN, Yahoo, Overture, AltaVista, Hotbot, LookSmart and similar search or directory engines); (c) set commission tracking cookies through loading of MSPRO site in IFrames, hidden links and automatic pop ups that open the MSPRO site; (d) targets text on web sites, other than those web sites 100% owned by the application owner, for the purpose of contextual marketing; (e) removes, replaces or blocks the visibility of Affiliate banners with any other banners, other than those that are on web sites 100% owned by the owner of the application.
2.5. Affiliate shall not, and shall not permit any companies with links on Affiliate's site(s) to, offer for sale any illegal goods or services, pornographic or adult-themed material, get rich quick schemes, gambling or any other goods or services that MSPRO, in its sole discretion, may deem inappropriate.
2.6. Except and only to the extent specifically set forth in this Agreement, Affiliate shall not acquire any right under this Agreement to use the URL Code or the name "Music Supervisor, Inc.": (a) in any advertising, publicity, or promotion; (b) to express or to imply any endorsement of Affiliate's products or services; or (c) in any other way.
2.7. Affiliate sites that use pop ups/unders for the purpose of aiding shoppers may not use such pop ups/unders to set or overwrite a commission tracking cookie, deceive the shopper or redirect the shopper from MSPRO site at anytime for any purpose. Pop ups/unders must be free of any kind of link.
2.8. Affiliate shall not at any time register or use a domain name that is derived, in whole or in part, from MSPRO Properties (as defined below).
2.9. Affiliate shall not automatically set tracking cookies on the Client’s computer in any way.
2.10. Affiliate shall not at any time use MSPRO Properties in cost per click, pay per click, paid listings, paid online advertising or any other capacity within search engines or web directories; including, without limitation trademarked names and common misspellings of such trademarks.
2.11. Affiliate shall not initiate or cause in any way a "Drive by Installation" on a Consumer's computer. A "Drive by Installation" program that is downloaded or installed without the Consumer requesting such download or installation.
2.12. Affiliate shall not distribute any email containing a Qualifying Link or MSPRO Properties without MSPRO's prior written approval.
2.13. Any breach of any of the provisions of this Section shall be deemed a material breach by Affiliate of its Engagement and this Agreement and MSPRO reserves the right to immediately terminate all Engagements and this Agreement.
3. Referral Fees.
3.1. MSPRO agrees to pay Affiliate a referral fee as specified in the Engagement if a visitor to MSPRO's site (a "Consumer") completes a Qualifying Transaction. A Qualifying Transaction shall not be considered complete until such transaction has been validated through MSPRO's internal system, and in no event shall a terminated transaction be considered complete; all determinations of whether a Qualifying Transaction is complete shall be made by MSPRO, and shall be deemed conclusive. A referral fee shall not be paid for any Qualifying Transaction that is completed as a result of a breach by Affiliate of any provision of Section 2 above. If a referral fee is paid on a Qualifying Transaction that is later terminated or is determined to be a result of a breach by Affiliate of Section 2 above, Affiliate shall immediately repay any commission previously received for such transaction. As used herein a "Qualifying Transaction" is a completed music licensing agreement and completed payment or any other transaction for which MSPRO agrees to pay a referral fee as defined in an Offer and if that Consumer has accessed MSPRO's site and completed the Qualifying Transaction via a Qualifying Link.
A "Qualifying Link" is a link from Affiliate's site or email to MSPRO's using one of the Required SPECAIL URLs or any other URL provided by MSPRO for use in The MSPRO Affiliate Program if the Consumer completes a Qualifying Transaction during a Session; however, if a Consumer links from another affiliate during a Session, the Qualifying Link shall be considered to be from the last affiliate site the Consumer visited prior to completing the Qualifying Transaction. A "Session" is the period of time beginning from a Consumer's initial contact with MSPRO's site via a link from the Affiliate's site and terminating at midnight Pacific time within 90 days. All determinations of completed Qualifying Links and whether a referral fee is payable will be made by MSPRO based upon MSPRO’s Affiliate reports, and shall be deemed conclusive.
3.2. MSPRO agrees to pay the referral fees to Affiliate on a quarterly basis; provided however that a payment will not be made until Affiliate has accrued over $100 in referral fees.
3.3. MSPRO shall have the sole right and responsibility for processing all orders made by Clients. Affiliate acknowledges that all agreements relating to music sales to Clients shall be between MSPRO and the Client.
4. Ownership and Licenses.
4.1. Affiliate acknowledges that MSPRO is the exclusive owner of the URL Code, any trademarks, trade names, service marks and logos therein (the "Trademarks"), and any trademark incorporating all or any part of the Trademarks. Without limiting the foregoing, Affiliate hereby assigns to MSPRO all right, title and interest in the Trademarks, together with the goodwill attaching thereto that may inure to Affiliate in connection with this Agreement or from Affiliate's use of the Trademarks hereunder. Affiliate agrees to execute and deliver such documents as MSPRO requires to register Affiliate as a registered or permitted user of the Trademarks and to follow MSPRO's instructions for the proper use thereof. Affiliate agrees and acknowledges that in the event Affiliate breaches any term or condition of this Section 4, MSPRO's remedy at law will not be entirely adequate, and Affiliate hereby agrees that in the event of any such breach and commencement of an action against it by MSPRO, it shall, at the request of MSPRO, consent to the entry of an injunction prohibiting Affiliate use, in any way, of the Trademarks and URL Code during the pendency of the action brought in said court by MSPRO in connection with the aforesaid breach.
4.2. Except as expressly set forth herein, MSPRO does not grant Affiliate any right or license in the URL Code, the Trademarks, MSPRO's sites, any MSPRO merchandise or any portion of any of the foregoing (collectively "MSPRO Properties"). MSPRO retains all right, title and interest in the MSPRO Properties, and all materials related to the foregoing, including without limitation, all copyright, trade secret, trademark and other intellectual property rights therein. Except as expressly set forth in this Agreement or permitted by applicable law, Affiliate may not copy, distribute, modify, reverse engineer, or create derivative works from the MSPRO Properties.
4.3. Affiliate will not, nor will it encourage or assist a third party to, register or attempt to register as a copyright, trademark, service mark, design patent or industrial design any MSPRO Properties, or derivations or adaptations thereof, or any work, symbol or design which is so similar thereto as to suggest association with or sponsorship by MSPRO or any MSPRO affiliate. In the event of any breach of the foregoing, Affiliate agrees, at its sole expense and at MSPRO's request, immediately to terminate the unauthorized registration activity and promptly to execute and deliver, or cause to be delivered, to MSPRO such assignments and other documents as MSPRO may require to transfer to MSPRO all rights to the registrations, patents or applications involved. Affiliate will not, nor will it encourage or assist a third party to, challenge the validity or ownership of any patent, copyright, trademark, or other intellectual property registration of MSPRO or any MSPRO affiliate.
4.4. MSPRO grants Affiliate a revocable, nonexclusive, nontransferable license, without right of sublicense, to use and reproduce the URL Code on Affiliate's site or email solely for the purpose of creating Qualifying Links pursuant to the Engagement.
4.5. MSPRO shall own and retain all right, title and interest in all names, addresses and other identifying information of Clients visiting MSPRO's sites ("Client Data") which is collected by MSPRO, including without limitation, Consumers who access MSPRO's sites through Qualifying Links, and Affiliate shall have no right to return, collect or use any Consumer Data.
5.1. The Engagement shall commence on the date MSPRO confirms its acceptance of Affiliate's acceptance of the applicable Offer and shall extend in perpituity unless otherwise terminated on the parties' mutual agreement.
5.2. Either party may terminate this Agreement at any time, for any reason, provided that it provides written notice via designated e-mail address of such termination to the other party. Termination of this Agreement shall also terminate any outstanding Engagement. MSPRO shall have the right to terminate this Agreement immediately, (a) upon a breach of any obligation hereunder by Affiliate; (b) in the event Affiliate becomes insolvent (i.e., unable to pay its debts in the ordinary course as they come due); (c) MSPRO determines, in its sole discretion, that compliance with this Agreement would cause MSPRO or any of its affiliates to violate or potentially violate any local, state or federal law or regulation or any court order; (d) any representation made or information provided to MSPRO by Affiliate was false or misleading at the time of such disclosure; or (e) there is a material adverse change in Affiliate's financial condition, business prospects or any other condition as MSPRO may determine.
5.3. Upon the expiration or termination of this Agreement for any reason, (a) Affiliate shall immediately remove all Qualifying Links and MSPRO Code from its site or email and cease all use of the URL Code; (b) Affiliate shall immediately destroy all copies of and erase the URL Code from all computer memories and storage devices within its possession or control, and certify in a writing signed by an officer of Affiliate that such materials have been so destroyed and erased; (c) all rights herein granted shall revert to MSPRO; and (d) any provisions of this Agreement which are to be performed after termination to effectuate their intent and purpose shall survive termination of this Agreement, including, but not limited to, the following sections: 2, 3, 4, 5, 6 and 7.
6. Representations and Warranties.
6.1. Affiliate represents and warrants that (a) it has the right, power and authority to enter into this Agreement and the Engagement and to fully perform its obligations hereunder; (b) the making of this Agreement and any Engagement by it does not violate any agreement existing between it and any other person or entity; (c) it complies, and at all times shall comply, with all applicable laws, rules and regulations in effect during the term of this Agreement pertaining to its operation of its sites, distribution of emails (including, but not limited to, the Federal CAN-SPAM Act of January 1, 2004) and to the subject matter hereof; and (d) it is not a direct competitor of MSPRO.
6.2. MSPRO represents and warrants that the URL Code is owned or licensed by MSPRO and does not violate or infringe any right of privacy or publicity or any copyright, trademark, patent or other intellectual property right, or contain any libelous, defamatory, obscene or unlawful material, or otherwise violate or infringe any other right of any third party.
6.3. EXCEPT AS EXPRESSLY SET FORTH HEREIN, MSPRO DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE URL CODE, THE TRADEMARKS, MSPRO'S MERCHANDISE AND SITES OR ANY OTHER MATERIALS (TANGIBLE OR INTANGIBLE) AND SERVICES SUPPLIED HEREUNDER, AND MSPRO HEREBY EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES WITH RESPECT THERETO, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MSPROABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
7.1. Affiliate agrees to and shall indemnify, defend and hold harmless MSPRO and its successors and assigns from and against any and all claims, demands, suits, judgments, damages, costs, losses, expenses (including reasonable attorneys' fees and expenses) and other liabilities incurred by MSPRO arising from (a) any breach of any of the representations, warranties or agreements made by Affiliate under this Agreement; (b) any unauthorized use by Affiliate or any of its subcontractors of any MSPRO Properties; (c) Affiliate's sales and marketing practices or those of its representatives and agents, including without limitation, any material misrepresentation, warranty or guarantee made by Affiliate or its agents or representatives regarding MSPRO services; or (d) any other claim with respect to Affiliate's sites or any products sold through Affiliate's sites other than a claim for which MSPRO is obligated to indemnify Affiliate under Section 7.2 below. MSPRO shall promptly notify Affiliate of any such claim. Affiliate shall bear full responsibility for the defense (including any settlements) of any such claim; provided however, that (i) Affiliate shall keep MSPRO informed of, and consult with MSPRO in connection with the progress of such litigation or settlement; and (ii) Affiliate shall not have any right, without MSPRO's written consent, to settle any such claim if such settlement arises from or is part of any criminal action, suit or proceeding or contains a stipulation to or admission or acknowledgment of, any liability or wrongdoing (whether in contract, tort or otherwise) on the part of MSPRO or any of its Affiliates.
7.2. MSPRO agrees to and shall indemnify, defend and hold harmless Affiliate from and against any and all claims, demands, suits, judgments, damages, costs, losses, expenses (including reasonable attorneys' fees and expenses) and other liabilities incurred by Affiliate as a result of a third party claim arising from any breach by MSPRO of Section 6.2. Affiliate shall promptly notify MSPRO of any such claim. MSPRO shall bear full responsibility for the defense (including any settlements) of any such claim; provided however, that (i) MSPRO shall keep Affiliate informed of, and consult with Affiliate in connection with the progress of such litigation or settlement; and (ii) MSPRO shall not have any right, without Affiliate's written consent, to settle any such claim if such settlement arises from or is part of any criminal action, suit or proceeding or contains a stipulation to or admission or acknowledgment of, any liability or wrongdoing (whether in contract, tort or otherwise) on the part of Affiliate.
7.3. MSPRO SHALL NOT BE LIABLE TO AFFILIATE OR ANY THIRD PARTY FOR ANY LIQUIDATED, INDIRECT, CONSEQUENTIAL, EXEMPLARY OR INCIDENTAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE) ARISING OUT OF THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO CASE SHALL MSPRO'S AGGREGATE LIABILITY FOR ALL MATTERS ARISING OUT OF THE SUBJECT MATTER OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED FIFTEEN THOUSAND DOLLARS ($15,000).
8.1. Nothing herein shall restrict either party from entering into any agreement with any other party, even if similar to or competitive with the transactions contemplated hereunder. Without limitation of the foregoing, nothing herein shall constrain MSPRO from marketing and promoting MSPRO services and MSPRO's site in any manner.
8.2. The parties are independent contractors with respect to each other. Each party is not and shall not be deemed to be an employee, agent, partner or legal representative of the other for any purpose and shall not have any right, power or authority to create any obligation or responsibility on behalf of the other.
8.3. This Agreement and the Engagement constitute the complete, final and exclusive agreement between the parties with respect to the subject matter hereof, and supersede any and all prior or contemporaneous oral or written representation, understanding, agreement or communication between the parties concerning the subject matter hereof.
8.4. This Agreement, the Engagement and the rights, duties and obligations of Affiliate under the foregoing are personal to Affiliate and may not be assigned, delegated or otherwise transferred, whether by operation of law or otherwise, without the prior written consent of MSPRO. Any attempted assignment, delegation or other transfer by Affiliate in violation of this Section 8.4. shall be void and shall constitute a material breach of this Agreement.
8.5. This Agreement shall be fairly interpreted and construed in accordance with its terms and without strict interpretation or construction in favor of or against any party. Each party has had the opportunity to consult with counsel in its contemplation of this Agreement.
8.6. If any restriction, covenant or provision of this Agreement shall be adjudged by a court of competent jurisdiction to be void, such restriction, covenant or provision shall apply with such modifications as may be necessary to make it valid and effective and the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired.
8.7. The construction, interpretation and performance of this Agreement, as well as any case or controversy arising out of the parties' relationship that is related to or contemplated by this Agreement, shall be governed by and construed in accordance with the domestic laws of the State of California without regard to its conflict of law provision. The parties agree that any action at law or in equity arising out of or relating to this Agreement shall be filed only in the state or federal courts located in Los Angeles County. The parties hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action.
9.1. All material and information supplied by MSPRO to Affiliate under this Agreement, including, without limitation, information concerning MSPRO's marketing plans, technological developments, objectives and financial results and other materials developed by the parties related to the Agreement, are confidential and proprietary to MSPRO (collectively, "Confidential Information"). Confidential Information shall be used by Affiliate solely in the performance of its obligations under this Agreement and Affiliate agrees not to disclose Confidential Information to any third party, except as may be necessary to perform its obligations pursuant to this Agreement. Affiliate shall return to MSPRO all Confidential Information upon request or termination of this Agreement. Affiliate agrees not to disassemble, decompile or reverse engineer any software provided by MSPRO under this Agreement.
9.2. Affiliate agrees that it will not issue any press release, make any public announcement or otherwise advertise, publish, or disclose the entry into or execution of this Agreement, its nature or the terms and conditions hereof, without the prior written approval of MSPRO.
10. Independent Investigation
10.1. Affiliate acknowledges and agrees that it has read this agreement and agrees to all its terms and conditions. Affiliate understands that MSPRO may at any time (directly or indirectly) solicit third party referrals on terms that may differ from those contained in this agreement or operate businesses that are similar to or compete with Affiliate's business. Affiliate has independently evaluated the desirability of participating in the program and is not relying on any representation, guarantee, or statement other than as set forth in this agreement.
IN WHEREOF, the parties have entered into this Agreement as of the date of the creation of the first Engagement between the parties.