Fan1st Affiliate Agreement
Terms and Conditions
This Fan1st Affiliate Program Agreement (the "Agreement") sets forth the terms and conditions regarding the Fan1st Affiliate Program (the "Program") of Fan1st Inc. ("Fan1st").
BY CLICKING ON THE "APPLY" BUTTON AT THE END OF THE AFFILIATE APPLICATION, YOU (IF YOU ARE ACTING ON BEHALF OF YOURSELF AS AN INDIVIDUAL) OR YOUR COMPANY (IF YOU ARE ACTING ON BEHALF OF YOUR COMPANY) (THE "AFFILIATE") AGREE(S) TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. PLEASE READ THIS ENTIRE AGREEMENT CAREFULLY BEFORE ACCEPTING ITS TERMS.
1. Definitions. Capitalized terms in this Agreement will have the meanings set forth below or attributed to them in various sections of the Agreement. However, use of the term "Affiliate" in this Agreement shall not be interpreted or construed to mean that any party to this Agreement is an "affiliate" of any other party for purposes of any federal and state securities laws.
"Affiliate Originated Visitor" means a unique end-user who accesses the Fan1st Site through an Affiliate Link on the Affiliate Site.
"Fan1st Brand Features" means Fan1st trade names, trademark, service mark and/or logo authorized by Fan1st and found at Fan1staffiliate.com.
"Fan1st Content" means Fan1st-provided articles and other content.
"Fan1st Product" means the Fan1st Diamond Season Membership and Diamond Monthly Membership.
"Fan1st Site" means the Fan1st World Wide Web site which is the destination of the URL included by Fan1st in the Link.
"Intellectual Property Rights" means all rights in and to trade secrets, patents, copyrights, trademarks, know-how, as well as moral rights and similar rights of any type under the laws of any governmental authority, domestic or foreign, including rights in and to all applications and registrations relating to any of the foregoing.
"Link" means a hypertext and/or graphical link, to or from one Web site to another Web site which allows an Affiliate Originated Visitor to automatically transfer from the Affiliate Site to the Fan1st Site.
2. Enrollment in the Program. To begin the enrollment process, Affiliate will submit and complete Affiliate Program application via Fan1st.com. Fan1st will evaluate Affiliate's application and notify you of your acceptance or rejection of your application. Fan1st may reject your application and reserves the right to terminate this Agreement for any reason with or without notice to Affiliate including but not limited to a determination that the Affiliate Site is unsuitable for or incompatible with the Program.
3. Links. Affiliate agrees to promptly post at least one Link (the "Affiliate Link(s)") to the Fan1st Site at one (or more) Web sites owned or operated by Affiliate (the "Affiliate Site(s)") in no event later than five (5) business days following Fan1st's acceptance of Affiliate into the Program. Affiliate Links may not be placed in newsgroups, unsolicited e-mail, banner networks, counters, chatrooms or guestbooks. Any Affiliate Link placed must be done so in such a way that it is not misleading to any Affiliate Originated Visitor and done so with the intention of delivering users to the Fan1st Site for that Link. Affiliate acknowledges that the Affiliate Site will include the Fan1st Brand Features, and Affiliate has no right to alter, remove, or customize the Fan1st Brand Features. Affiliate will not use or display the Link(s) or the Fan1st Brand Features in a manner that is defamatory, misleading, libelous, and obscene or otherwise potentially damaging to the reputation of Fan1st, or the goodwill associated with the Fan1st Brand Features.
4. Affiliate Obligations and Restrictions. Affiliate will be solely responsible for the development, operation and maintenance of Affiliate Site and for all materials that appear on Affiliate Site, including but not limited to: (a) the accuracy and appropriateness of materials posted on Affiliate Site; and (b) ensuring that materials posted on Affiliate Site do not violate or infringe upon the rights of any third party. Affiliate agrees to refrain from the following: (a) purchasing and/or using domain name(s) that incorporate any portion of the Fan1st Brand Features; (b) purchasing any search engine keywords that outrank and/or outbid any of the Fan1st Brand Features; (c) identifying the Affiliate site as an "official site" ("affiliate" or "authorized affiliate" are permitted uses); and (d) changing any Fan1st Product price and/or offering any additional Affiliate discounts or rebate on any Fan1st Product. Affiliate hereby agrees to indemnify, defend and hold harmless Fan1st, its shareholders, officers, directors, employees, agents, partners, successors and assigns, from and against any and all claims, losses, liabilities, damages or expenses (including, without limitation, attorneys' fees) arising from the development, operation, maintenance and contents of Affiliate Site.
5. Competitive Services. If you are approved as an Affiliate, Fan1st would prefer that you not be an affiliate or otherwise promote, market or sell any products that are competitive with Fan1st Products. If you do market competitive products and services, you agree to place our Link, banners, and any other content identifying Fan1st and/or describing the our products and services (the "Content") in a location and in a manner on your Site that is equal to or better than the location and manner in which you place a competitor's Content.
6. Order Processing. Fan1st will process orders placed by users who follow the Links from Affiliate's Site to Fan1st's Web Site. Fan1st reserves the right to reject or withhold acceptance or fulfillment of orders for any reason or for no reason, including but not limited to the failure of any customer making an order to comply with our terms and conditions of sale, (which we may revise periodically without notice to you). Fan1st will be responsible for all aspects of order processing and fulfillment. The amount of sales generated using the Affiliated Links from Affiliate Site to Fan1st Site will be tracked by Kowabunga (the "Tracking Data"). Affiliate will have access to Kowabunga reporting center at http://Fan1staffiliate.com, where Affiliate can check the Affiliate Site's sales activity on a daily basis. To permit accurate tracking and reporting, Affiliate must ensure that the Links between Affiliate Site and Fan1st Site are properly formatted and are maintained.
7. Commissions.
Fan1st Product Commission Rate
Fan1st Diamond Season Member $25.00
Fan1st Diamond Monthly Member $10.00
8. Payments. Subject to Section 7 above, Fan1st will pay Affiliate the Commissions and Bounties earned which payments will be calculated on a monthly basis. Approximately forty-five (45) days following the end of each calendar month during the agreement, Fan1st will send Affiliate a check for the Commissions and Bounties earned in such month, less any other fees or reduction for returns that Fan1st is required by law to withhold, and excluding fraudulent, redundant, or non-qualifying Commissions or Bounties. If the Commissions and Bounties payable to Affiliate for any calendar month are less than $50.00, Fan1st will hold those fees until the total amount due is at least $50.00 (unless this Agreement is terminated). Affiliate may be taxed on the accrual of Commissions or Bounties, depending on the tax laws of Affiliate's federal, state, and local jurisdictions. Affiliate shall be responsible for any and all tax liability arising out of your accrual or receipt of Commissions or Bounties and Affiliate hereby agrees to indemnify and hold Fan1st harmless from any and all claims, damages and expenses (including, without limitation, attorneys' fees) arising from such tax liability.
9. License Grant. Fan1st hereby grants to Affiliate a limited, non-exclusive, royalty-free, nontransferable, worldwide license, without the right to sublicense, to use, reproduce, publicly perform, distribute and display the Fan1st Brand Features and Fan1st Content at the Affiliate Site solely in the form delivered by Fan1st. Affiliate is only entitled to use the Fan1st Brand Features and Fan1st Content to the extent that the Affiliate is a member in good standing in the Program.
10. Reservation of Rights. Fan1st reserves all rights other than those expressly granted in this Agreement, and no licenses are granted except as expressly set forth herein. Fan1st retains all right, title, and interest in and to the Fan1st Brand Features and the Fan1st Site, together with all Intellectual Property Rights thereto. In addition, Fan1st shall establish all Fan1st Product pricing and associated fees. Fan1st may, in its sole discretion, change the Fan1st Product pricing with or without notice.
11. Program Information. Fan1st will own all rights, title and interest in and to all information that is created or collected in the operation of the Fan1st Site including, without limitation: (i) any contact information collected from any Affiliate Originated Visitors, (the "Contact Information"); and (ii) any information collected about product sales at the Fan1st Site generated through the Affiliate Link(s), (the "Sales Information"). Fan1st (will/can) not share contact information with Affiliates and/or other third parties. Fan1st will make certain Sales Information available online to Affiliate from time to time. Affiliate will not disclose any Sales Information to any third party without Fan1st's prior approval. Subject to the terms and conditions of this Agreement, Fan1st grants to Affiliate a worldwide, non-exclusive, royalty-free license to use Sales Information solely in the manner and subject to the restrictions set forth in this Section. Each party shall comply with its respective privacy policies and statements in handling, using and disclosing any Contact Information and Sales Information.
12. Termination. This Agreement will become effective on the Effective Date and ends when terminated by either party in accordance with this Agreement. This Agreement may be terminated (i) by Fan1st, with or without cause, and with or without notice to Affiliate, and (ii) by Affiliate, with or without cause, by removing the Fan1st Brand Feature from the Affiliate Site, and notifying Fan1st of its intention to terminate the Agreement. Upon termination or expiration of the Agreement: (i) all licenses granted herein shall terminate; (ii) Affiliate shall immediately remove any Affiliate Link(s) and Fan1st Brand Features from Affiliate Site; (iii) Fan1st will pay Affiliate any accrued and unpaid Fees, provided such fees exceed $25; and (iv) Sections 14, 15, 16, 17, 18, 20, and 21 and this sentence will survive. If Fan1st should terminate this Agreement because Affiliate is in breach of a material term, Fan1st may withhold Commissions or Bounties payable to Affiliate in an amount equal to the amount by which Fan1st believes in good faith that we have been damaged by such breach, including prospective damages and damages resulting from claims by third-parties caused by such breach.
13. Modification. At any time and in Fan1st's sole discretion, Fan1st may modify any of the terms and conditions contained in this Agreement by (i) posting a change notice or a new agreement on Fan1st.Fan1st.com and/or (ii) e-mailing a revised agreement to Affiliate. If any modification is unacceptable to Affiliate, Affiliate's only recourse is to terminate this Agreement. Affiliate's continued participation in the program following Fan1st's posting of a change notice or new agreement on Fan1st.Fan1st.com and/or affiliate's receipt of a revised agreement will constitute binding acceptance of the modification.
14. Disclaimer. THE FAN1ST SITE AND RELATED SERVICES ARE PROVIDED "AS IS" WITH NO WARRANTY, AND FAN1ST EXPRESSLY DISCLAIMS ANY WARRANTY, EXPRESS OR IMPLIED, REGARDING THE FAN1ST SITE, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. IN ADDITION, FAN1ST MAKES NO REPRESENTATION OR WARRANTY THAT THE LINKS, THE TRACKING DATA, THE OPERATION OF FAN1ST'S SITE, OR BE FREE'S PROCEDURES AND SYSTEMS FOR TRACKING AND REPORTING SALES GENERATED BY YOUR SITE WILL BE UNINTERRUPTED OR ERROR-FREE, AND FAN1ST SHALL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS, INCLUDING, WITHOUT LIMITATION, LOSS OF DATA. FAN1ST SHALL HAVE NO LIABILITIES OR OBLIGATIONS UNDER WARRANTY OR OTHERWISE TO ANY OF YOUR CUSTOMERS FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE DELIVERY, USE OR PERFORMANCE OF FAN1ST'S PRODUCTS.
15. Limitation of Liability. UNDER NO CIRCUMSTANCES WILL FAN1ST BE LIABLE WHETHER IN TORT, CONTRACT OR OTHERWISE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES FOR ANY LOSS OF REVENUE, PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR DATA, LOSS OF GOODWILL, WORK STOPPAGE, HARDWARE OR SOFTWARE FAILURE, OR OTHER PECUNIARY LOSS) ARISING FROM OR RELATING TO ANY PROVISION OF THIS AGREEMENT OR THE PROGRAM. WITHOUT LIMITING THE FOREGOING, FAN1ST'S AGGREGATE LIABILITY ARISING WITH RESPECT TO THIS AGREEMENT WILL NOT EXCEED THE TOTAL FEES PAID OR PAYABLE TO AFFILIATE UNDER THIS AGREEMENT.
16. Indemnification. AFFILIATE WILL DEFEND, INDEMNIFY, AND HOLD FAN1ST AND ITS OFFICERS, DIRECTORS, AGENTS, AFFILIATES, DISTRIBUTORS, FRANCHISEES, AND EMPLOYEES HARMLESS FROM AND AGAINST ANY AND ALL THIRD PARTY CLAIMS, LOSSES, DAMAGES, ACTIONS, LIABILITIES, EXPENSES, OR COSTS (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEY�S FEES) ARISING OUT OF ANY CLAIM, DEMAND, ACTION, SUIT, INVESTIGATION, ARBITRATION, OR OTHER PROCEEDING BY A THIRD PARTY OUT OF THE INDEMNIFYING PARTY�S MATERIAL BREACH OF ANY DUTY, REPRESENTATION OR WARRANTY. AFFILIATE IS SOLELY RESPONSIBLE FOR ANY LEGAL LIABILITY ARISING OUT OF OR RELATING TO (I) THE AFFILIATE WEB SITE; AND/OR (II) ANY MATERIAL TO WHICH A USER CAN LINK THROUGH THE WEB SITE. AFFILIATE WILL BE RESPONSIBLE FOR ANY COSTS AND/OR FEES RELATED TO AND/OR ARISING OUT OF �SPAM� COMPLAINTS RELATED TO THE DELIVERY OF EMAIL AND/OR MANAGEMENT OF THE WEB SITE. ANY COSTS AND/OR FEES CHARGED TO FAN1ST BY ITS INTERNET SERVICE PROVIDER FOR COSTS RELATED TO RESPONDING TO AND/OR MANAGING ALLEGATIONS OF �SPAM� WILL BE BORNE EXCLUSIVELY BY THE AFFILIATE. NOTWITHSTANDING THE FOREGOING, FAN1ST RESERVES THE RIGHT TO RESPOND TO ANY SUCH ALLEGATIONS, AND THE AFFILIATE AGREES TO COMPENSATE FAN1ST FOR ALL RELATED EXPENSES INCLUDING, BUT NOT LIMITED TO, REASONABLE ATTORNEY�S FEES. AFFILIATE WILL INDEMNIFY, DEFEND, AND HOLD HARMLESS FAN1ST AND ITS OFFICERS, AGENTS, AFFILIATES AND EMPLOYEES FROM AND AGAINST ALL CLAIMS, ACTIONS, LIABILITIES, LOSSES, EXPENSES, DAMAGES, AND COSTS (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS� FEES) THAT MAY AT ANY TIME BE INCURRED BY ANY OF THEM BY REASON OF ANY CLAIMS, SUITS, OR PROCEEDINGS FOR THE FOLLOWING: (I) ANY LIBEL, DEFAMATION, VIOLATION OF RIGHTS OF PRIVACY OR PUBLICITY, COPYRIGHT INFRINGEMENT, TRADEMARK INFRINGEMENT, OR OTHER INFRINGEMENT OF ANY THIRD PARTY RIGHT, FRAUD, FALSE ADVERTISING, MISREPRESENTATION, PRODUCT LIABILITY, OR VIOLATION OF ANY LAW, STATUTE, ORDINANCE, RULE, OR REGULATION THROUGHOUT THE WORLD IN CONNECTION WITH THE WEB SITE, INCLUDING, WITHOUT LIMITATION, ANY ACTION BROUGHT PURSUANT TO ANTI-SPAMMING LEGISLATION, OR ANY OTHER LEGISLATION RELATED TO INTERNET ADVERTISING OR ELECTRONIC ADVERTISING, OR ELECTRONIC COMMERCE PASSED BY ANY LOCAL, STATE, OR FEDERAL GOVERNMENT, FOREIGN GOVERNMENT, OR OTHER JURISDICTION, AND AFFILIATE FURTHER AGREES TO INDEMNIFY AND HOLD FAN1ST HARMLESS FROM ANY LITIGATION RESULTING FROM ANY EMAILS THAT HAVE BEEN SENT ON BEHALF OF THE AFFILIATE, WHETHER SENT DIRECTLY BY FAN1ST, OR BY A THIRD-PARTY PROVIDER OF FAN1ST; (II) ANY MATERIAL BREACH BY AFFILIATE OF ANY DUTY, REPRESENTATION OR WARRANTY UNDER THIS AGREEMENT; (III) ANY MATERIAL BREACH BY FAN1ST OF ANY DUTY, REPRESENTATION OR WARRANTY UNDER AGREEMENT TO PLACE THE WEB SITE ON THE INTERNET DUE TO ANY BREACH BY AFFILIATE OF THIS AGREEMENT; (IV) ANY DAMAGES RESULTING FROM A CONTAMINATED FILE, VIRUS, WORM, OR TROJAN HORSE ORIGINATING FROM THE WEB SITE; OR (V) RELATING TO ANY SPYWARE USED BY OR ON BEHALF OF AFFILIATE. IF FAN1ST DECIDES TO DEFEND SUCH ACTION IT WILL HAVE CONTROL OF THE DEFENSE. FAN1ST AND ITS COUNSEL IN THE DEFENSE, WILL HAVE THE RIGHT, BUT NOT BE REQUIRED, TO PARTICIPATE FULLY IN THE DEFENSE OF SUCH ACTION. ANY COMPROMISE OR SETTLEMENT OF AN ACTION WILL REQUIRE THE PRIOR WRITTEN CONSENT FAN1ST WHICH WILL NOT BE UNREASONABLY WITHHELD OR DELAYED.
17. Authority. If the person entering into this Agreement is acting on behalf of his or her company, such person represents to Fan1st that he or she has all requisite corporate power and authority to enter into this Agreement on behalf of Affiliate, that this Agreement has been duly authorized by Affiliate and that this Agreement will constitute the legal, valid and binding obligation of Affiliate. Such person hereby agrees to indemnify and hold Fan1st harmless from any and all claims, damages and expenses (including, without limitation, attorneys' fees) arising from any breach of this Section. If the person entering into this Agreement is acting on one's behalf, such person represents to Fan1st that he or she is an individual, 18 years of age or older, who is a U.S. citizen or permanent resident and is not a citizen or permanent resident of Cuba, Iran, Iraq, North Korea, Libya, Sudan or Syria.
18. Publicity. Affiliate shall not create, publish, distribute, or permit any written material that makes reference to Fan1st without first submitting such material to Fan1st and receiving written consent from Fan1st.
19. Relationship of Parties. Affiliate and Fan1st are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship, or the relationship of principal and agent between the parties. Affiliate will have no authority to make or accept any offers or representations on Fan1st's behalf. Affiliate will not make any statement, whether on Affiliate Site or otherwise, that reasonably would contradict anything in this Section. Affiliate, as an independent contractor, will have sole responsibility for its expenses, employees, sales representatives and agents.
20. Communications. Affiliate agrees that by becoming a Fan1st Affiliate, Fan1st will contact you on a periodic basis with information about Fan1st's affiliate programs.
21. Geographic Scope. All the rights and obligations of both Fan1st and Affiliate are valid only within the United States.
22. Miscellaneous. This Agreement shall be interpreted in accordance with the laws of the State of Nevada without reference to conflicts of laws provisions, and any legal proceeding arising out of this Agreement will occur in San Francisco, California. This Agreement will be binding on and will inure to the benefit of the legal representatives, successors and valid assigns of the parties hereto. This Agreement contains the entire agreement between Fan1st and Affiliate with respect to the subject matter hereof, and supersedes all prior and/or contemporaneous agreements or understandings, written or oral, between Fan1st and Affiliate with respect to the subject matter hereof. Affiliate may not assign all or any part of this Agreement without Fan1st's prior written consent. Except as set forth in Section 13, this Agreement may not be modified without the prior written consent of both parties.
23. Notice. Any notice to be given hereunder will be in writing and given by facsimile, postpaid registered or certified mail return receipt requested, or electronic mail. The date of receipt shall be deemed the date on which such notice is given. Notice to Fan1st will be directed to Fan1st Inc., 2535 Garcia Avenue, Mountain View, CA 94043, Attn: General Counsel, Phone: (650) 944-6000, Fax: (650) 944-6622.
24. Assignment. 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 to this Agreement and their respective successors and assigns.
25. 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 PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.
