Updated: May 6, 2010
This Affiliate Program Agreement ("Affiliate Agreement") contains the terms and conditions that govern
your participation in the Gigshowcase.com™ Affiliate Program (the "Program").
YOU HAVE AGREED TO THE TERMS AND CONDITIONS OF THIS AFFILIATE AGREEMENT IF YOU:
- CLICKED "SIGNUP" INDICATING AGREEMENT, OR
- YOU HAVE CONTINUED TO PARTICIPATE IN THE PROGRAM FOLLOWING OUR POSTING OF A CHANGE NOTICE,
OR REVISED AFFILIATE AGREEMENT ON THE GIGSHOWCASE.COM WEBSITE.
By agreeing to the terms and conditions of this Affiliate Agreement, you:
- acknowledge and agree that you have independently evaluated the desirability of participating in the program and are not relying on
any representation, guarantee, or statement other than as expressly set forth in this Affiliate Agreement or on Gigshowcase.com™ website
(if there is a conflict between this Agreement and the Gigshowcase.com™ website, this Affiliate Agreement shall govern; and
- represent and warrant that you are lawfully able to enter into contracts (e.g., you are not a minor) and that you are and will remain
in compliance with this Affiliate Agreement.
In addition, if you are a company or other legal entity, then the person agreeing to this Affiliate Agreement on behalf of that
company or entity hereby represents and warrants that he or she is authorized and lawfully able to bind that company or entity to this
Affiliate Agreement.
1. Program Description
The purpose of the Program is to permit you to advertise Gigshowcase.com™ on your website and to earn advertising fees for
paid subscriptions placed through your site. In order to facilitate your advertisement of the Gigshowcase.com™ subscription-based service,
we may make available to you data, images, text, link formats, widgets, links, and other linking tools,
and other information and marketing tools in connection with the Program ("Content").
2. Enrollment
To begin the enrollment process, you must submit a complete and accurate Program application, including a valid e-mail address
(the use of an autoresponder e-mail address is prohibited). You must indicate where you plan to advertise or identify your website in your
application. We may reject your application if we determine that your site is unsuitable. Unsuitable sites include those that:
- promote or contain sexually explicit, obscene, or pornographic materials;
- promote violence or contain violent materials, including violent video game images;
- promote or contain profane, hateful, threatening, libelous or defamatory materials;
- promote discrimination, or employ discriminatory practices, based on race, sex, religion, nationality, disability, sexual orientation,
or age;
- promote or undertake illegal activities; or
- otherwise violate intellectual property rights.
If we reject your application, you may reapply at any time. However, if we accept your application and we later determine that
your site is unsuitable, we may terminate this Affiliate Agreement.
You will ensure that the information in your Program application and otherwise associated with your account,
including your email address and other contact information and identification of your site, is at all times complete, accurate,
and up-to-date. We may send notifications (if any), approvals (if any), and other communications relating to the Program and this
Affiliate Agreement to the email address then-currently associated with your Program account.
You will be deemed to have received all notifications, approvals, and other communications sent to that email address,
even if the email address associated with your account is no longer current.
3. Links on Your Site and Restrictions
You may earn advertising fees only as described below and on the Gigshowcase.com™ website and only with respect to activity on the
Gigshowcase.com™ website occurring directly through the Content or as otherwise provided in the
Program Details.
We will have no obligation to pay you advertising fees if you fail to properly format the links on your site to the Gigshowcase.com™ website.
You may not alter, add to, subtract from, or otherwise modify the Content or use it in any manner other than as contemplated by this
Affiliate Agreement without our prior written consent or use the Content in a disparaging or negative way. You may not use the Content to
create your own promotional material or to endorse your own services or products.
You may make referrals to the Gigshowcase.com™ subscription service only as permitted in this Affiliate Agreement and only with the
Content described in this Agreement or as otherwise approved in writing by us. You may not engage in the distribution of any unsolicited
bulk emails (spam) in any way mentioning or referencing Gigshowcase.com™ or the Gigshowcase.com™ website.
4. Program Requirements
You will provide us with any information that we request to verify your compliance with this Affiliate Agreement.
If we determine that you have violated Affiliate Agreement, we may (in addition to any other rights or remedies available to us)
withhold any advertising fees payable to you under this Affiliate Agreement, terminate this Affiliate Agreement, or both.
You hereby consent to us:
- sending you emails relating to the Program from time to time; and
- monitoring, recording, using, and disclosing information about your site and your activities that we obtain in connection with your
display and use of the Content to verify compliance with this Affiliate Agreement.
5. Responsibility for Your Site
You will be solely responsible for your site, including its development, operation, and maintenance and all materials that appear
on or within it. For example, you will be solely responsible for:
- the technical operation of your site and all related equipment;
- displaying Content on your site in compliance with this Affiliate Agreement and any agreement between you and any other person or entity
(including any restrictions or requirements placed on you by any person or entity that hosts your site);
- creating and posting, and ensuring the accuracy, completeness, and appropriateness of, materials posted on your site;
- using the Content, your site, and the materials on or within your site in a manner that does not infringe, violate,
or misappropriate any of our rights or those of any other person or entity (including copyrights, trademarks, privacy,
publicity or other intellectual property or proprietary rights);
- disclosing on your site accurately and adequately, either through a privacy policy or otherwise, how you collect, use, store,
and disclose data collected from visitors, including, where applicable, that third parties (including us and other advertisers)
may serve content and advertisements, collect information directly from visitors, and place or recognize cookies on visitors’ browsers; and
- any use that you make of the Content, whether or not permitted under this Affiliate Agreement.
We will have no liability for these matters or for any of your end users’ claims relating to these matters, and you agree to defend,
indemnify, and hold us, our affiliates and our and their respective employees, officers, directors, and representatives,
harmless from and against all claims, damages, losses, liabilities, costs, and expenses (including attorneys’ fees) relating to
(a) your site or any materials that appear on your site, including the combination of your site or those materials with other applications,
content, or processes;
(b) the use, development, design, manufacture, production, advertising, promotion, or marketing of your site or any materials that appear
on or within your site, and all other matters described in this Section 5; (c) your use of any Content, whether or not such use is
authorized by or violates this Affiliate Agreement or violates applicable law; (d) your violation of any term or condition of this
Affiliate Agreement; or (e) your or your employees' negligence or willful misconduct.
6. Subscription Processing
We will process subscriptions placed by customers who follow Content from your site to the Gigshowcase.com™ website.
We reserve the right to reject orders that do not comply with any requirements on the Gigshowcase.com™ website, as they may be updated
from time to time. We will track paid subscriptions for reporting and advertising fee accrual purposes and will make available to you
reports summarizing those subscriptions.
7. Advertising Fees
We will pay you advertising fees on paid subscriptions in accordance with the Program Details.
If we request tax information from you and
you do not provide it to us, we may (in addition to any other rights or remedies available to us) withhold your advertising fees until
you provide this information or otherwise satisfy us that you are not a person from whom we are required to obtain tax information.
8. Policies and Pricing
Customers who subscribe through this Program are our customers with respect to all activities they undertake in connection with the
Gigshowcase.com™ website. Accordingly, as between you and us, all pricing, terms of sale, rules, policies, and operating procedures
concerning subscriptions and customer service set forth on the Gigshowcase.com™ website will apply to those customers, and we may change them
at any time.
9. Identifying Yourself as an Affiliate
You will not issue any press release or make any other public communication with respect to this Affiliate Agreement,
your use of the Content, or your participation in the Program without our express written permission. You will not misrepresent or embellish
the relationship between us and you (including by expressing or implying that we support, sponsor, endorse, or contribute to any charity or
other cause), or express or imply any relationship or affiliation between us and you or any other person or entity except as
expressly permitted by this Affiliate Agreement or with our express written permission. You must, however, clearly state the following
on your site: "[Insert your name] is a participant in the Gigshowcase.com™ Affiliate Program, an affiliate advertising program designed to
provide a means for sites to earn advertising fees by advertising and linking to Gigshowcase.com."
You will not use the name "Gigshowcase" or any name that is confusingly similar to such name for any purpose on your website,
in your promotional materials, or in any other context except to promote the Gigshowcase.com™ website as specified in this Affiliate Agreement.
For example, you cannot have a website that solely has Gigshowcase.com™ content. You will not register any domain name that incorporates
"Gigshowcase" or that is confusingly similar to "Gigshowcase.com".
10. Limited License
We hereby grant you a nonexclusive, nontransferable license to use the Content specified under the terms and conditions of this
Affiliate Agreement. The term of the License shall expire upon the expiration or termination of this Affiliate Agreement.
11. Reservation of Rights; Submissions
Other than the limited licenses expressly set forth above, we retain all right, ownership, and interest in the Content, and in any copyright,
trademark, or other intellectual property in the Content.
If you provide us with suggestions, reviews, modifications, data, images, text, or other information or content about the Gigshowcase.com™
subscription service or if you modify any Content in any way, (collectively, "Your Submission"), you hereby irrevocably assign to us all right,
title, and interest in and to Your Submission and grant us a perpetual, paid-up royalty-free, nonexclusive, worldwide, irrevocable,
freely transferable right and license to use, reproduce or modify Your Submission for any purpose. Further, you hereby warrant that
Your Submission is your original work, or you obtained Your Submission in a lawful manner.
12. Compliance with Laws
In connection with your participation in the Program you will comply with all applicable laws, ordinances, rules, regulations, orders,
licenses, permits, judgments, decisions, and other requirements of any governmental authority that has jurisdiction over you, including laws
(federal, state, or otherwise) that govern marketing email (e.g., the CAN-SPAM Act of 2003).
13. Term and Termination
The term of this Affiliate Agreement will begin upon your completion of our Program application and will end when terminated by either
you or us. Either you or we may terminate this Affiliate Agreement at any time, with or without cause, by giving the other party
written notice of termination. Upon any termination of this Affiliate Agreement, any and all licenses you have with respect to Content
will automatically terminate and you will immediately stop using the Content and promptly remove from your site and delete or otherwise
destroy all links to the Gigshowcase.com™ website, and any other materials provided or made available by or on behalf of us to you under this
Affiliate Agreement or otherwise in connection with the Program. We may withhold accrued unpaid advertising fees for a reasonable period of time
following termination to ensure that the correct amount is paid (e.g., to account for any cancelations or returns).
No termination of this Affiliate Agreement will relieve either party for any liability for any breach of, or liability accruing under,
this Affiliate Agreement prior to termination.
14. Modification
We may modify any of the terms and conditions contained in this Affiliate Agreement at any time and in our sole discretion by posting a
change notice, revised agreement, or revised Program Details on the Gigshowcase.com™ website.
IF ANY MODIFICATION IS UNACCEPTABLE TO YOU,
YOUR ONLY RECOURSE IS TO TERMINATE THIS AFFILIATE AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING OUR POSTING OF A
CHANGE NOTICE, REVISED AFFILIATE AGREEMENT, OR REVISED DETAIL ON THE GIGSHOWCASE.COM™ WEBSITE SITE WILL CONSTITUTE YOUR BINDING ACCEPTANCE
OF THE CHANGE.
15. Relationship of Parties
You and we are independent contractors, and nothing in this Affiliate Agreement will create any partnership, joint venture, agency,
franchise, sales representative, or employment relationship between you and us. You will have no authority to make or accept any offers or
representations on our behalf. You will not make any statement, whether on your site or otherwise, that contradicts or may contradict anything
in this section.
16. Limitation of Liability
WE WILL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING ANY LOSS OF PROFIT, GOODWILL, USE,
OR DATA) ARISING IN CONNECTION WITH THIS AFFILIATE AGREEMENT, THE PROGRAM, OR THE GIGSHOWCASE.COM™ WEBSITE, EVEN IF WE HAVE BEEN ADVISED OF THE
POSSIBILITY OF THOSE DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING IN CONNECTION WITH THIS AFFILIATE AGREEMENT, THE PROGRAM, AND THE
GIGSHOWCASE.COM™ WEBSITE WILL NOT EXCEED THE TOTAL ADVERTISING FEES PAID OR PAYABLE TO YOU UNDER THIS AFFILIATE AGREEMENT IN THE TWELVE MONTHS
IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO THE MOST RECENT CLAIM OF LIABILITY OCCURRED.
17. Disclaimers
THE PROGRAM AND THE GIGSHOWCASE.COM™ SERVICE ARE PROVIDED "AS IS." NEITHER WE NOR ANY OF OUR AFFILIATES MAKE ANY REPRESENTATION OR WARRANTY
OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE WITH RESPECT TO THE SERVICE OFFERINGS. EXCEPT TO THE EXTENT PROHIBITED BY
APPLICABLE LAW, WE AND OUR AFFILIATES AND LICENSORS DISCLAIM ALL WARRANTIES WITH RESPECT TO THE SERVICE OFFERINGS, INCLUDING ANY
IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND QUIET ENJOYMENT,
AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE. WE MAY DISCONTINUE ANY SERVICE OFFERING,
OR MAY CHANGE THE NATURE, FEATURES, FUNCTIONS, SCOPE, OR OPERATION OF ANY SERVICE OFFERING, AT ANY TIME AND FROM TIME TO TIME.
NEITHER WE NOR ANY OF OUR AFFILIATES WARRANT THAT THE SERVICE OFFERINGS WILL CONTINUE TO BE PROVIDED, WILL FUNCTION AS DESCRIBED,
CONSISTENTLY OR IN ANY PARTICULAR MANNER, OR WILL BE UNINTERRUPTED, ACCURATE, ERROR FREE, OR FREE OF HARMFUL COMPONENTS. NEITHER WE NOR
ANY OF OUR AFFILIATES WILL BE RESPONSIBLE FOR (A) ANY ERRORS, INACCURACIES, OR SERVICE INTERRUPTIONS, INCLUDING POWER OUTAGES OR
SYSTEM FAILURES; OR (B) ANY UNAUTHORIZED ACCESS TO OR ALTERATION OF, OR DELETION, DESTRUCTION, DAMAGE, OR LOSS OF, YOUR SITE OR ANY DATA,
IMAGES, TEXT, OR OTHER INFORMATION OR CONTENT.
18. Disputes
Any dispute relating in any way to the Program or this Affiliate Agreement will be adjudicated in state court in Chaffee County,
Colorado or federal court in Denver, Colorado, and you hereby consent to exclusive jurisdiction and venue in those courts.
The laws of the State of Colorado, without regard to principles of conflicts of laws, will govern this Affiliate Agreement and any dispute
of any sort that might arise between you and us. Notwithstanding anything to the contrary in this Affiliate Agreement, we may seek injunctive
or other relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of our or any other
person or entity’s intellectual property or proprietary rights. You further acknowledge and agree that our rights in the Content are of a
special, unique, extraordinary character, giving them peculiar value, the loss of which cannot be readily estimated or adequately
compensated for in monetary damages.
19. Miscellaneous
You acknowledge and agree that we and our affiliates may at any time (directly or indirectly) solicit customer referrals on terms that
may differ from those contained in this Affiliate Agreement or operate sites that are similar to or compete with your site.
We may assign this Affiliate Agreement at any time without prior consent.
You may not assign this Affiliate Agreement, by operation of law or otherwise, without our express prior written approval.
Our failure to enforce your strict performance of any provision of this Affiliate Agreement will not constitute a waiver of our right to
subsequently enforce this provision or any other provision of this Affiliate Agreement. 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.