THE WOMEN'S INDEPENDENT CINEMA
AFFILIATE PROGRAM
TERMS AND CONDITIONS AGREEMENT
By agreeing to become an affiliate of THE WOMEN’S INDEPENDENT CINEMA, LLC ("WICinema") you and/ or your organization ("Affiliate") have read and agree to the WICinema's Terms of Use and agree to promote the WICinema and its services which include, but is not limited to, the distribution of home entertainment.
Affiliate agrees to the following terms and conditions:
1. Term: This Agreement shall begin upon the WICinema's acceptance of Affiliate's application. This Agreement shall remain in effect until terminated in writing by either party.
2. Rights Granted: Affiliate agrees to promote the WICinema, its services, updates and upcoming releases to Affiliate's members, constituents, mailing list, consumers and/ or customers (collectively "Members") via Affiliate's website, newsletters, electronic and printed mailings, correspondence and communications now established or hereafter devised, to its Members and where appropriate, during engagements (collectively "Promotion"). Affiliate will distribute an initial introductory Promotion to its Members. Further, Affiliate shall post a link to WICinema's website on Affiliate's website in a conspicuous manner. WICinema retains approval rights over Affiliate's materials and announcements relating to the WICinema. Included among these rights are advertising, promotional, publicity and clip rights. These rights include the WICinema's right to reproduce in any manner any media segment, print or media related to Affiliate and/ or the WICinema. Affiliate shall assist the WICinema in securing any necessary clearances and approvals to exercise the foregoing rights.
3. Promotion: All Promotions and promotional activities undertaken by Affiliate hereunder to promote the WICinema shall be made in accordance with all applicable laws and regulations. In addition to the foregoing grant of rights, Affiliate shall promote the WICinema and its services with the following approved promotional activities:
a. Website: Affiliate shall in a prominent and conspicuous manner, include the WICinema's website address, currently, WICinema.com ("WICinema Website") on Affiliate's Promotions as stated above. Affiliate will provide a link to WICinema Website on Affiliate's present and future websites via a link, banner advertisement (still or rotating), button link, or similar link in accordance with (3) a. i. below. New materials provided by the WICinema shall be replaced on Affiliate's website within ten (10) days of receipt.
i. Website Links: The WICinema shall provide Affiliate with the graphics and text for such banner advertisements along with any guidelines and shall retain approval over the same. It is understood that these links and banner advertisements, will each provide a direct connection from Affiliate's website to the WICinema Website and are hereinafter referred to collectively as "Links". Affiliate shall cooperate with the WICinema to establish and maintain such Links. Affiliate shall not alter, modify or expand any Link without the WICinema's prior approval. The WICinema may monitor Affiliate's website at any time to ensure compliance.
b. Other Media/ Materials: In addition to promoting the WICinema to Affiliate's Members, where appropriate, Affiliate will promote the WICinema during Affiliate's media appearances such as via television, radio, print, speaking engagements, lectures, events, and so forth and on the accompanying materials.
c. Audio Bytes: When available and reasonably requested, Affiliate will record clips, including, audio bytes for use by Affiliate and the WICinema.
d. Customer Feedback: When reasonably requested, Affiliate will provide the WICinema with feedback from Affiliate's Members relating to the WICinema, its services and/ or Women’s Independent Cinema and enable the WICinema to survey Affiliate's Members. When reasonably requested, Affiliate will make records available to the WICinema that verify the recipients consent to receive the e-mails and mailings set forth herein available for the WICinema's review and inspection subject to the confidentiality provisions.
e. Cross Promotion: The WICinema may, but is under no obligation to, promote Affiliate's products (books, seminars, etc.) to the WICinema's membership and provide advertising (banner) space and hotlinks available to Affiliate's organization via the WICinema's website. All materials provided by Affiliate to the WICinema for posting on WICinema Website or for dissemination shall be deemed approved and clear for use when provided.
4. Performance: Affiliate understands that Affiliate's cooperation and Promotional efforts are material inducements of this Agreement. Affiliate will cooperate with planning and executing WICinema's marketing strategies. Affiliate may not broker or sublicense any of the advertising or other materials (including Links) to any third party without the WICinema's written consent. It is expressly agreed that affiliate may only send e-mails and promotional material relating to WICinema to people who have opted in to or voluntarily joined affiliate's e-mail list or lists or other methods of communication. Affiliates may not send or distribute unsolicited communications (e.g. "spam" e-mail advertising, mailing, and telephone calls) relating to WICinema or any of its products or services. Any breach by affiliate of the foregoing performance obligations will result in the immediate termination of this agreement by WICinema without notice.
5. Consideration: In consideration for the rights and privileges granted hereunder, the sufficiency of which is hereby acknowledged, the WICinema shall pay Affiliate a referral fee based upon each WICinema member who i) has clicked through Affiliate's website; ii) has signed up as a member of the WICinema; and iii) is approved for membership by the WICinema (collectively "WICinema Member").
a. Referral Fee: The WICinema shall pay Affiliate a referral fee for Memberships sold through the Affiliate's referrals, in the amount of $10.00 for the initial sale and thereafter $2.00 per paid member per month, until the referred WICinema Member cancels their subscription or this Agreement is terminated. For purposes of clarity, Affiliate will only receive the fee for members who join the WICinema via a link on Affiliate's website. The WICinema reserves the right at any time to reduce or increase the referral fee amount paid to Affiliate for any reason which may include, increased DVD costs, operational costs, market evaluation and/ or the increase/ decrease of membership fees. The WICinema shall notify Affiliate if such increase or decreases will go in effect.
6. Payment. Unless otherwise provided, the WICinema shall provide a detailed statement along with Affiliate's payment for referral fees owed, if any, on a monthly basis. Affiliate will also receive a statement at the end of the year.
a. Deferment. In the event Affiliate's accrued referral fees for a particular month are less than seventy-five dollars ($ 75), the WICinema reserves the right to defer such amount and pay Affiliate during a subsequent period where the referral fees owed are seventy-five dollars ($ 75) or more. No interest shall accrue on such deferred amount.
b. Tracking. The WICinema will track the sales of the Affiliate via third party tracking software. Upon WICinema's acceptance of Affiliate's application, Affiliate will receive a secured password to access certain sales reports and traffic information. WICinema will not be responsible for any delays, mistakes or errors resulting from the tracking software. All tracking information will be deemed confidential.
c. Returns. In accordance with customary business practices, WICinema may withhold future payments with an amount equal to the referral fee(s) previously paid in circumstances of product returns, duplicate entry or other clear error, or non-receipt of payment from, or refund of payment to, the WICinema member by the WICinema.
7. W-9 Information: If Affiliate is an individual, Affiliate will provide the WICinema with a completed W-9 Form attached hereto as www.irs.gov/pub/irs-pdf/fw9.pdf within 5 days from when this Agreement is submitted. Notwithstanding anything in this Agreement to the contrary, if Affiliate fails to deliver the completed W-9, the WICinema may withhold any and all payments until such time the form is received by the WICinema in order to comply with IRS regulations.
8. Name & Likeness: Further to paragraph 3( e) above, Affiliate agrees that the WICinema may utilize Affiliate's approved name and likeness (including, audio bytes) in connection with press clips, WICinema's website, product packaging and all other WICinema marketing and promotional materials. The following uses and variations thereof are hereby approved for all WICinema materials.
9. Indemnity: Affiliate will defend, indemnify, defend, save and hold harmless the WICinema, it's successors, licensees and assigns and their respective officers, agents, affiliates, employees, from any and all claims, damages, costs, including, reasonable attorney's fees, judgments, penalties, expenses and other losses arising from a breach of Affiliate's duties hereunder and/ or relating to the development, operation, maintenance and/ or content of Affiliate's website, materials, products and services. The WICinema shall indemnify Affiliate from any claims in the manner set forth above arising in relation to the WICinema's obligations hereunder. It is understood that the WICinema shall not be liable for mistakes, errors or delays arising from WICinema's third party tracking software.
a. Defense: Any party seeking indemnification shall promptly notify the other party in writing of the claim and shall reasonably cooperate with the indemnifying party with respect to such claim.
10. Notices: Affiliate shall provide the WICinema with current contact information throughout the term of this Agreement. Notices and other communications to Affiliate, pursuant to this Agreement, shall be posted on the secured affiliate network site or sent via email to the email address provided to WICinema and shall be deemed effective upon posting or emailing, as applicable. Any notice or communications to WICinema will be sent to Affiliate@WICinema.com and deemed effective one (1) day after e-mailing.
11. Approvals: All approvals to be given hereunder will be given within ten (10) business days after receiving the request or materials for review. If a response is not given within this time, approval shall not be deemed to have been given.
12. Amendment/ Modification: This Agreement and the WICinema's Terms of Use may be amended at any time by the WICinema and Affiliate should periodically refer to the WICinema's posting of this Agreement and the Terms of Use for updates.
13. Governing Law: This Agreement shall be governed by the laws of the State of California. In the event that the parties cannot in good faith negotiations resolve a dispute, any proceedings, actions or litigations relating to this Agreement shall be instituted and prosecuted within the State of California.
14. Termination: Either party may terminate this Agreement without notice. Upon termination, all rights under this Agreement shall cease and the WICinema shall have no further obligations to Affiliate. Upon receiving notice of termination, Affiliate shall promptly remove any Links or other references to the WICinema on Affiliate's website, and return or destroy any confidential information, WICinema artwork or any other materials. If this Agreement is terminated because of a material breach, Affiliate shall not receive any additional payments, including for referral fees earned during the month prior to the date of termination. If this Agreement is terminated for any other reason, Affiliate will only receive referral fees earned during the Term of the Agreement. For the avoidance of doubt, Affiliate shall not continue to receive fees even if the WICinema Members who subscribed via Affiliate remain WICinema Members after termination. The WICinema may withhold final payment to ensure that the terms of this paragraph 14 are complied with.
15. Limitation of Liability: NEITHER PARTY WILL BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT.
16. Assignment: The WICinema shall have the right to assign this Agreement.
17. Headings: The captions herein are inserted for reference only and in no way define, limit or describe the scope of this Agreement or interfere with the provisions.
18. Confidential & Propriety Information: Neither party may directly or indirectly disclose to the public or to the trade any of the terms of this Agreement without the prior written consent of the other. Upon approval of the WICinema, you may issue publicity relating to the WICinema so long as such publicity does not contain any confidential or proprietary information. Affiliate may not at any time during the Term refer to the WICinema in any derogatory or knowingly false manner. If at any time the WICinema is provided with access to your mailing lists or vice versa such information shall be deemed confidential and shall not be disclosed to any third parties without the prior written consent of the other party.
19. Alternative Dispute Resolution. If any dispute arises pursuant to this Agreement that cannot be resolved through good faith negotiation between the parties it will be submitted to the American Arbitration Association in the State of California in accordance with the rules thereof.
20. No Joint Venture: Nothing herein shall be construed to place the parties in relationship of fiduciary, partner or joint ventures. Affiliate shall not be able to obligate or bind the WICinema in any manner and vice versa. The parties shall not make any statement which may cause confusion as to the relationship of WICinema and Affiliate.
21. Authority to Enter: Each party represents that it has the authority and capacity to enter into this Agreement.
22. Entire Agreement: This Agreement contains the entire understanding between the parties and supersedes all prior oral and written understandings of the parties hereto relating to the subject matter herein.
WICINEMA AFFILIATE'S SUBMISSION OF THIS APPLICATION SHALL CONSTITUTE AFFILIATE'S AGREEMENT TO BE BOUND BY THIS AGREEMENT.
Effective as of JULY 1ST, 2006.
