These terms are between you (“you” or “Affiliate”) and FMI Guild. “FMI Guild” means Natalie Minh Management LLC. with a principal place of business 3502 E. Chapman Ave, Orange, CA 92869. (the “Affiliate,” and together with the FMI Guild, the “Parties”). In order to participate in the affiliate program, you must first agree to these terms. Affiliate understands and agrees that FMI Guild has the right to accept or deny in its sole discretion its entry into the program based on Affiliate's application. The effective date of this Agreement is the date upon which FMI Guild accepts Affiliate's entry into the program (the “Effective Date”). You represent and warrant that you have the necessary and full right, power, authority, and capability to accept these terms, to bind your organization, and to perform your obligations hereunder. You can accept the terms by clicking to accept or agree to these terms, where this option is made available to you by FMI Guild in the user interface. You may not participate in the affiliate program and may not accept the terms if (a) you are not of legal age to form a binding contract with FMI Guild, or (b) you are a person barred from participating in the affiliate program under the laws of the United States or other countries including the country in which you are resident or from which you participate in the affiliate program. You may not participate in the affiliate program if you do not accept the terms. By accepting the terms, you agree as follows:
Affiliate wishes to include certain materials promoting FMI Guild, and to include a link to FMI Guild’s website within those materials on Affiliate’s website;
NOW THEREFORE, in consideration of the mutual promises, covenants, warranties, and other good and valuable consideration set forth herein, the Parties agree as follows:
1. Promotional Materials. FMI Guild shall make available to Affiliate FMI Guild’s approved logo, button links, text links, and/or other graphic or textual material for display and use on the Affiliate website (the “Promotional Materials”). Affiliate shall display the Promotional Materials on Affiliate’s website prominently and as Affiliate sees fit, provided that the manner of display shall be subject to the terms and conditions of this Agreement. Affiliate shall also include a link from the Promotional Materials to FMI Guild’s website, as specified by FMI Guild.
2. 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 FMI Guild’s website, products or services other than the Promotional Materials, unless FMI Guild agrees to such other materials in writing prior to their display.
(b) Affiliate may only use the Promotional Materials for the purpose of promoting FMI Guild’s website (and the products and services available thereon), and for linking to FMI Guild’s website.
(c) Affiliate will not alter, add to, subtract from, or otherwise modify the Promotional Materials as they are prepared by FMI Guild. If Affiliate wishes to alter or otherwise modify the Promotional Materials, Affiliate must obtain prior written consent from FMI Guild for such alteration of modification.
(d)The Promotional Materials will be used to link only to FMI Guild’s website, to the specific page and address as specified by FMI Guild.
3. License. FMI Guild 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.
4. Intellectual Property. FMI Guild retains all right, 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 3.
5. Relationship of Parties. This Agreement shall not be construed to create any employment relationship, agency relationship, or partnership between FMI Guild and Affiliate. Affiliate shall provide services for FMI Guild as an independent contractor. Affiliate shall have no authority to bind FMI Guild into any agreement, nor shall Affiliate be considered to be an agent of FMI Guild in any respect.
6. Commissions. (a)In exchange for Affiliate’s display of the Promotional Materials, and for Affiliate’s compliance with and performance of the terms and conditions of this Agreement, FMI Guild shall pay to Affiliate a commission (the “Commission”) in the amount of a percentage of product sold to a user that accesses FMI Guild’s website through a link on Affiliate’s website. The current percentage posted is 30%. This percentage is subject to change by the FMI Guild at any time. Notification to Affiliate of any change in commission percentage will be given by FMI Guild at the email address on hand for the Affiliate. Commission will be based on purchases made by a user for any new and recurring purchases for the life of the registered user.
(b)FMI Guild shall keep accurate and up-to-date records of the data used to determine the total amount of Commissions owed to Affiliate. Affiliate shall be given reasonable access to these records upon request, and is available through the affiliate area on the member page at http://fmiguild.org/affiliates/. Any discrepancy between the amount of Commissions owed according to these records, and the actual amount of Commissions paid to Affiliate in any period or periods shall be rectified by FMI Guild within 14 days of discovering such discrepancy.
(c)Commissions are held for a period of 2 months from any purchase to protect FMI Guild in the event of any chargeback that may occur. FMI Guild shall pay all Commissions accrued and payable to Affiliate within 7 days of the first day of each month (the “Commission Payment Date”). If on any Commission Payment Date, the amount of total Commissions accrued and payable to Affiliate is less than $10.00, then such accrued and payable balance shall be held over to the following month, and paid together with the Commissions due for that month. If at any time, the balance of accrued and payable Commissions is held over for 2 consecutive months, then FMI Guild shall pay all accrued and payable Commissions to Affiliate in the third month, regardless of the total amount owed. Payment is made via the Affiliate PayPal account.
(d)In the event that Affiliate materially breaches this Agreement and FMI Guild terminates this Agreement within 30 days of such breach, then any accrued and payable Commissions owing to Affiliate shall be forfeited, and FMI Guild shall not be obligated to pay such Commissions to Affiliate.
7. Affiliate’s Representations and Warranties.
(a)Affiliate represents and warrants the following:
(i) 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.
(ii) Affiliate’s website does not contain any materials that are:
(i) Sexually explicit, obscene, or pornographic;
(ii) Offensive, profane, hateful, threatening, harmful, defamatory, libelous, harassing, or discriminatory (whether based on race, ethnicity, creed, religion, gender, sexual orientation, physical disability, or otherwise);
(iii) Graphically violent, including any violent video game images; or
(iv) Solicitous of any unlawful behavior
(b)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.
(c)Affiliate will not use the Promotional Materials in any manner other than those set forth in Section 2 above.
(d)Affiliate will not make any claim to ownership of the Promotional Materials, or of the copyright, trademark, or other intellectual property therein.
(e)Affiliate will not publish or otherwise distribute any advertising materials for Affiliate’s website that reference FMI Guild or FMI Guild’s website unless FMI Guild gives prior written consent to the distribution of such materials. Affiliate will not use FMI Guild’s name (or any name that is confusingly similar to FMI Guild’s name) for any purpose on its website, in its promotional materials, or in any other context except to promote FMI Guild’s website as specified in this Agreement. Affiliate will not register any domain name that incorporates FMI Guild’s name, or that is confusingly similar to FMI Guild’s name.
(f)Affiliate will not engage in the distribution of any unsolicited bulk emails (spam) in any way mentioning or referencing FMI Guild or FMI Guild’s website.
8. Indemnification. Affiliate shall indemnify FMI Guild and hold harmless FMI Guild from any claim, damage, lawsuit, action, complaint, or other costs arising out of any breach of Affiliate’s warranties set forth in Section 7 above. Affiliate shall also indemnify and hold harmless FMI Guild for any damage, loss or other cost arising out of the use or misuse by Affiliate of the Promotional Materials.
9. Confidentiality. The Affiliate agrees, during the Term and [for a period of 5 years] thereafter, to hold in strictest confidence and not to use, except for the benefit of the FMI Guild or as required by law, or to disclose to any person, firm, or corporation without the prior written authorization of the FMI Guild, any Confidential Information of the FMI Guild. “Confidential Information” means any of the FMI Guild’s proprietary information, technical data, trade secrets, or know-how, including, but not limited to, research, product plans, products, services, customer lists, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, or other business information disclosed to the Affiliate by the FMI Guild either directly or indirectly. The Affiliate may use the Confidential Information to the extent necessary for negotiations, discussions, and consultations with the FMI Guild’s personnel or authorized representatives or for any other purpose the FMI Guild may hereafter authorize in writing. At the request of the FMI Guild, the Affiliate must promptly return all copies of Confidential Information received from the FMI Guild, and must promptly destroy all other Confidential Information prepared by the Affiliate, including, without limitation, any notes, reports, or other documents.
10. Intellectual Property.
(a) No Intellectual Property Infringement by FMI Guild. The FMI Guild represents to the Affiliate and unconditionally guarantees that all text, graphics, photos, designs, trademarks, or other content comprising any (i) Link and (ii) the FMI Guild Website are owned by the FMI Guild, or that the FMI Guild has permission from the rightful owner to use each of these elements, and will hold harmless, protect, indemnify, and defend the Affiliate and its subcontractors from any liability (including attorneys’ fees and court costs), including any claim or suit, threatened or actual, arising from the use of such elements furnished by the FMI Guild. The FMI Guild further represents to the Affiliate that the Link does not infringe, dilute, or otherwise violate third-party rights or trademarks.
(b) No Intellectual Property Infringement by Affiliate. The Affiliate represents to the FMI Guild and unconditionally guarantees that all text, graphics, photos, designs, trademarks, hyperlinks, or other content on the Affiliate Website are owned by the Affiliate, or that the Affiliate has permission from the rightful owner to use each of these elements, and will hold harmless, protect, indemnify, and defend the FMI Guild and its subcontractors from any liability (including attorneys’ fees and court costs), including any claim or suit, threatened or actual, arising from the use of such elements furnished by the Affiliate. The Affiliate further represents to the FMI Guild that the Affiliate Website’s domain name or URL listing does not infringe, dilute, or otherwise violate third-party rights or trademarks.
(c) FMI Guild Property Rights. All text, graphics, photos, designs, trademarks, service marks, trade names, or other content comprising the Link provided, leased, or licensed to the Affiliate with respect to the Affiliate’s performance of the Services are the sole property of the FMI Guild, and the Affiliate has no ownership or other intellectual property rights in or to such items. Without the prior written consent of the FMI Guild, the Affiliate will not use or mention the FMI Guild’s name, or publish or distribute any materials provided, leased, or licensed to the Affiliate, for any purpose not specified in this Agreement.
(d) Affiliate Property Rights. All text, graphics, photos, designs, trademarks, hyperlinks, or other content on the Affiliate Website are the property of the Affiliate and the FMI Guild has no ownership rights or other intellectual property rights to such items.
(a) This Agreement shall take effect immediately, and shall remain in full force and effect indefinitely, or until terminated pursuant to this Section 10.
(b) Either Party shall have the right to terminate this Agreement at any time and for any cause. The terminating Party must give written notice to the other Party at least 30 days prior to the intended date of termination.
12. Taxes. FMI Guild shall not be responsible for any taxes owed by Affiliate arising out of Affiliate’s relationship with FMI Guild as set forth in this Agreement. FMI Guild shall not withhold any taxes from the Commissions paid to Affiliate.
13. Laws Affecting Electronic Commerce. From time to time, governments enact laws and levy taxes and tariffs affecting Internet electronic commerce. Each Party agrees that it is solely responsible for complying with such laws, taxes, and tariffs, and will hold harmless, protect, and defend the other Party and its subcontractors from any claim, suit, penalty, tax, or tariff arising from the other Party’s exercise of Internet electronic commerce.
14. Limitation of Liability. FMI Guild 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 FMI Guild 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. Governing Law. This Agreement shall be governed by the laws of the state of California. In the event that litigation results from or arises out of this Agreement or the performance thereof, the Parties agree to reimburse the prevailing Party’s reasonable attorneys’ fees, court costs, and all other expenses, whether or not taxable by the court as costs, in addition to any other relief to which the prevailing Party may be entitled.
16. 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.
17. 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.
18. Headings. The headings for section herein are for convenience only and shall not affect the meaning of the provisions of this Agreement.
19. Entire Agreement. This Agreement constitutes the entire agreement between FMI Guild 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.