Affiliate Program

EMUSIC.COM AFFILIATE AGREEMENT

Effective as of July 21, 2003

This eMusic Affiliate Agreement ("Agreement") is a binding document, and describes the rights and obligations of eMusic.com Inc. ("our," "us," "we," or "eMusic") and companies that want to place a link(s) from their site (or sites) to the eMusic Site (as defined below) and participate as an affiliate in the Affiliate Program of eMusic and to be eligible for the receipt of Commissions (as defined below) (the "Program"). By clicking "I Agree" below, the individual or entity ("you" or "your") desiring to place a link(s) from its site or sites (for the purposes of this Agreement, "your site") and become an affiliate of eMusic agrees to each of the terms and conditions set forth below.

If you do not agree with any of the terms set forth below, please discontinue the registration process.

1. ENROLLMENT IN THE AFFILIATE NETWORK

To begin the enrollment process, you must submit a complete Program application via our web site www.emusic.com ("eMusic Site").We will evaluate your application in good faith and will notify you of your acceptance or rejection in a timely manner. We may reject your application if we determine (in our sole discretion) following our review of your site that your site is unsuitable for the Program for any reason, including, but not limited to, inclusion of content that is in any way unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically, or otherwise objectionable, or that includes or promotes sexually explicit materials, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation or age. If we reject your application, you are welcome to reapply to the Program at a later date. If we accept your application and your site is thereafter determined (in our sole discretion) to be unsuitable for the Program, we may terminate this Agreement at any time, with or without cause, effective immediately upon notice to you.

2. MODIFICATION

We may modify any of the terms and conditions contained in this Agreement at any time in our sole discretion. You will be notified by email where reasonably possible and a change notice will be posted at http://www.reporting.net. Modifications may include, but are not limited to, changes in the scope of available Commissions (as defined below), Commission schedules, payment procedures and Program rules. If any modification is unacceptable to you, you agree that your only recourse is to terminate this Agreement. Your continued participation in the Program following our posting of a change notice or new agreement on the eMusic Site will constitute your binding acceptance of the change.

3. YOUR RIGHTS, OBLIGATIONS AND RESPONSIBILITIES

As an affiliate in the Program (an "Affiliate Site"), we will make available to you a variety of graphic and textual links through your access to the "Tag Generator" function (the "Tag Generator") located at http://www.reporting.net ("Reporting.net Site") (each of these links sometimes being referred to herein as "Links" or, individually, as a "Link"), and, subject to the terms and conditions hereof, you shall display such Links prominently throughout your site as you see fit in accordance with Section 10.1 herein. The Links will serve to identify your site as a member of our Program and will establish a link from your site to ours to a location selected at your discretion. During the term of this Agreement, we will furnish you with a unique ID and password which shall permit you the ability to access the Tag Generator. At your written request, we will furnish unique IDs and passwords to parties that you designate in writing that you wish to have access to the Tag Generator to create Links and retrieve content for your Affiliate Site, but not access to your sales statistics as described in Section 9 below; provided, however, that you are responsible for such parties creation and use of Links or any other eMusic materials.
You will be solely responsible for the development, operation, and maintenance of your site and for all materials that appear on your site. Such responsibilities include, but are not limited to, the technical operation of your site and all related equipment; the accuracy and propriety of materials posted on your site (including, but not limited to, all product and service-related materials); and ensuring that materials posted on your site do not violate or infringe upon the rights of any third party and are not libelous or otherwise illegal. We disclaim all and you agree that we bear no liability for all such matters. Further, you will indemnify and hold us harmless from all claims, damages, and expenses (including, without limitation, attorneys' fees) relating to the development, operation, maintenance and contents of your site.
You hereby agree that your site will not, in any way, copy or resemble the look and feel of the eMusic Site nor will you create the impression that your site is the eMusic Site or is a part of the eMusic Site. If you also engage in the business of allowing end users of your site to download music files (with or without monetary compensation), you make clear to your end users that music files they are downloading from your site are not in any way affiliated with eMusic. You also hereby agree that your site will not contain any content of our site or any materials which are proprietary to us, except with our prior written consent, other than as contained in the Links.
You further hereby agree that your domain name does not and will not contain the words "emusic," "emusic.com," "www.emusic.com," or any variation thereof.

4. AGREEMENTS REGARDING LINKS

In utilizing the Links you agree that you will cooperate fully with us in order to establish and maintain such Links. You also agree that you will display on your site only those graphic or textual images to indicate that each Link is provided by us, and you will promptly substitute such images with any new images provided by us from time to time throughout the term of this Agreement. All Links may be modified and/or expanded from time to time throughout the term of this Agreement upon written notice posted on the Reporting.net Site.
Each Link connecting users of your site to the pertinent area of the eMusic Site will in no way alter the look, feel, or functionality of the eMusic Site.

5. EMUSIC'S RIGHTS, OBLIGATIONS AND RESPONSIBILITIES

We have the right, in our sole discretion, to monitor your site at any time and from time to time to determine if you are in compliance with the terms of this Agreement.
To permit accurate tracking, reporting and Commission (as defined below) accrual, we will provide you with special "tagged" link formats, including a unique identification number ("Source ID"), to be used in all Links between your site and the eMusic Site created through your use of Tag Generator. You must ensure that each of the Links between your site and the eMusic Site properly utilizes such special link formats. You will only earn Commissions (as defined below) with respect to activity on the eMusic Site occurring directly through Links with your Source ID. You agree that we will not be liable to you with respect to any failure by you to use Links, including to the extent that such failure may result in any reduction of amounts which would otherwise be paid to you pursuant to this Agreement.
We will be responsible for providing on the Reporting.net Site the information necessary to allow you to make appropriate Links from your site to the eMusic Site.

6. POLICIES, PRICING AND AVAILABILITY

Customers who buy products through the Program will be deemed to be our customers. Accordingly, all of our rules, policies, and operating procedures concerning customer orders, customer service, and our product sales will apply to those customers. We may change our policies and operating procedures at any time.
The price charged for products sold under the Program and the eMusic Site will be determined by us according to our own pricing policies. Product prices may vary from time to time, including price increases and special discounts offered by us. Our products may change frequently and we will use commercially reasonable efforts to present update information available regarding same. We cannot guarantee the availability or price of any particular product.

7. ORDER PROCESSING

We will process product orders placed by customers who follow Links from your site to the eMusic Site. We reserve the right to reject orders that do not comply with any requirements that we (or our vendors) periodically may establish.
As between you and us, we shall have the sole right and responsibility for processing all orders for our products on or through the eMusic Site, including receiving, filling, shipping and handling, collecting payment, tracking and transaction security. We will track the volume and amount of sales made to customers who purchase products using Links from your site to the eMusic Site. We will also use reasonable efforts (using only the technologies we subscribe to that can be reasonably expected for tracking sales through the Program) to track sales resulting from customers that fill out the eMusic Site forms or request information from the eMusic Site.
You acknowledge that you shall not be a party to any transaction between any customer and us and all aspects of such orders including, but not limited to, purchase terms, payment terms, warranties, guarantees and delivery are solely between the customer and us.

8. COMPENSATION

You acknowledge and agree that our acceptance of your application does not automatically entitle you to receive Commissions from the Program or us. As consideration for accepted orders made by customers who follow the Links from your site that are established and maintained in accordance this Agreement, during the term of this Agreement, we will pay you the following (collectively, the "Commissions"): (a) one dollar for any such customer who registers for a free trial subscription to eMusic of one month or less in duration (the "Trial Registration Payment"); and (b) ten percent (10%) of Net Revenues (as defined below) eMusic receives each month from any such customer for the first twelve (12) months of any such customers' eMusic subscription; for purposes of this Agreement, "Net Revenues" shall mean the amounts eMusic receives in connection with any such customers' initial enrollment as paying eMusic subscribers (e.g., Basic, Plus, Premium, etc.), less any amounts eMusic may deduct, or suspend payment of, based on early subscription terminations, fraudulent orders, chargebacks or expired, cancelled or invalid credit cards by such customers.
We (through our designees) will pay to you the Commissions, if any, on a quarterly basis as follows: provided that the total Commissions due to you at the end of a quarter exceed Twenty-Five Dollars ($25.00) (the "Commissions Payment Floor"), we (through our designees) shall add your Commissions (less any taxes required to be withheld under applicable law) to your Orchard account within forty-five (45) days following the end of each month subsequent to the Effective Date. However, if the total Commissions due to you at the end of the quarter are less than the Commissions Payment Floor, we will hold those Commissions until the quarterly total Commissions due is at least equal to the Commissions Payment Floor.

9. ACCOUNT INFORMATION AND SALES STATISTICS

During the Term of this Agreement, we will furnish to you a unique ID and password which shall permit you the ability to access password-protected web pages located at the Reporting.net Site to review and modify your account contact and payment contact information and receive your sales statistics on a daily basis. If you have applied for multiple sites to link to the eMusic Site, you may request for separate statistics for each of your sites by sending the names and URLs of your sites in an email addressed to "Affiliates@emusic.com" with the phrase "Track Separately" in the subject heading. The form, content, and frequency of the reports may vary from time to time at our discretion. You agree to hold such ID and password confidential and to immediately notify us in writing if the security of this ID and/or password is compromised.

10. INTELLECTUAL PROPERTY RIGHTS

You shall not make use of any Licensed Materials for purposes other than promoting our products solely in accordance with the terms of this Agreement without our prior written consent. You further agree not to use the Licensed Materials in any manner that is disparaging or that otherwise portrays us in a negative light. Except as explicitly set forth in this Agreement, we reserve all of rights in the Licensed Materials and all other proprietary rights related to the eMusic Site.
You grant to us a non-exclusive license to utilize your name(s) and logos as the same may be amended from time to time ("Your Trademarks"), solely to advertise, market, promote and publicize your relationship with us in accordance with the terms of this Agreement. We must cease using the Your Trademarks immediately upon termination or expiration of this Agreement or upon advance written request by you.

11. CONFIDENTIAL INFORMATION

Except as otherwise provided in this Agreement or with the consent of the other party hereto, each of the parties hereto agrees that all non-public information of the other party, including, without limitation, the financial terms, customer and vendor lists, and pricing and sales information, shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by the other party for its own business purposes or for any other purpose except and solely to the extent that any such information is generally known or available to the public through a source or sources other than such party hereto or except as contemplated by this Agreement. Notwithstanding the foregoing, each party is hereby authorized to deliver a copy of any such information (a) to any person pursuant to a subpoena issued by any court or administrative agency, (b) to its accountants, attorneys, or other agents on a confidential basis, and (c) otherwise as required by applicable law, rule, regulation or legal process.

12. REPRESENTATIONS AND WARRANTIES

You hereby represent and warrant to us as follows:

The execution, delivery and performance by you of this Agreement and the consummation by you of the transactions contemplated hereby will not, with or without the giving of notice, the lapse of time, or both, conflict with or violate: (i) any provision of law, rule, or regulation to which you are subject; (ii) any order, judgment, or decree applicable to you or binding upon your assets or properties; (iii) any provision of your by-laws or certificate of incorporation; or (iv) any agreement or other instrument applicable to you or binding upon your assets or properties.
You are the sole and exclusive owner of Your Trademarks, and have the right and power to grant the license to use such items in the manner contemplated herein, and such grant does not and will not (i) breach, conflict with or constitute a default under any agreement or other instrument applicable to you or binding upon your assets or properties, or (ii) infringe upon any trademark, trade name, service mark, copyright or other proprietary right of any other person or entity.

13. INDEMNIFICATION

You hereby agree to indemnify and hold harmless us, our subsidiaries, directors, officers, employees, agents, shareholders, partners, members and other owners, against any and all third party claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs and expenses (including reasonable attorneys' fees) (any or all of the foregoing hereinafter referred to as "Losses") insofar as such Losses (or actions in respect thereof) arise out of or are based on (i) any claim that our use of Your Trademarks infringe any trademark, trade name, service mark, copyright or other proprietary right of any third party, (ii) any misrepresentation of a representation or warranty set forth in Section 12 above, or (iii) any claim related to the content contained in your site (other than content provided by us hereunder).

14. WEB SITE SERVICE INTERRUPTION

We will make every effort to keep the eMusic Site operational. However, certain technical difficulties may, from time to time, result in temporary service interruptions. You agree not to hold us liable for any of the direct or indirect consequences of such interruptions.

15. DISCLAIMERS OF IMPLIED WARRANTIES

WE DO NOT MAKE, AND HEREBY DISCLAIM, ANY REPRESENTATIONS OR WARRANTIES REGARDING THE EMUSIC SITE AND THE PRODUCTS OFFERED THROUGH THE EMUSIC SITE OR ANY PORTION THEREOF, EXPRESS, IMPLIED OR STATUTORY, INCLUDING (WITHOUT LIMITATION) IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT OF THIRD PARTY RIGHTS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE SPECIFICALLY DISCLAIM ANY REPRESENTATION OR WARRANTY REGARDING ANY COMMISSION OR OTHER BENEFIT THAT YOU MIGHT OBTAIN THROUGH YOUR PARTICIPATION IN THE PROGRAM OR THIS AGREEMENT.

16. LIMITATION OF LIABILITY

17. TERM AND TERMINATION

The term of this Agreement will begin upon our acceptance of your Program application and will end when terminated by either party. Subject to Section 1, either you or we may terminate this Agreement immediately at any time, with or without cause, by giving the other party written notice of termination. You are only eligible to earn Commissions on sales occurring during the term of this Agreement.
All undisputed payments that have accrued prior to the termination or expiration of this Agreement will be payable in full in U.S. currency within sixty (60) days after termination or expiration.
Sections 10 ("Intellectual Property Rights"), 11 ("Confidential Information"), 13 ("Indemnification"), 15 ("Disclaimers of Implied Warranties"), 16 ("Limitation of Liability"), 17 ("Term and Termination") and 18 ("Miscellaneous") of this Agreement will survive the termination or expiration of this Agreement.

18. MISCELLANEOUS

You will not issue any press release or make any other public disclosure regarding this Agreement or its terms without our prior written consent as to the timing and content of that release or disclosure (which consent shall not be unreasonably withheld), or except as may be required by law in the opinion of the our counsel. This Agreement is governed by the laws of the State of California, U.S.A., without regard to its conflicts of law provisions; and you hereby consent to the jurisdiction of and venue in courts located in Santa Clara County, California, U.S.A. in all disputes arising out of or relating to the Program. In addition, you hereby consent to the exclusive jurisdiction of and venue in such courts for any action commenced by you against us (or our affiliates). Use of the Program is unauthorized in any jurisdiction that does not give effect to all provisions of these terms and conditions, including without limitation this Section 18. You agree that no joint venture, partnership, employment, or agency relationship exists between you and us as a result of this Agreement or use of the Program. Our performance of this Agreement is subject to existing laws and legal process, and nothing contained in this Agreement is in derogation of our right to comply with governmental, court and law enforcement requests or requirements relating to your use of the Program or information provided to or gathered by us with respect to such use. If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the Agreement shall continue in effect. This Agreement constitutes the entire agreement between the you and us with respect to the Program and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between the you and us with respect to the Program. A printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

I Agree I Do Not Agree

Search All Music

Search Classical Music

Search Audiobooks

Affiliate Program

EMUSIC.COM AFFILIATE AGREEMENT